Constitutional scholar Laurence Tribe: Framers would tell us to impeach him right now

Harvard constitutional law professor says Trump's "treachery and betrayal" are now clear. There's one solution

By Chauncey DeVega

Senior Writer

Published August 22, 2019 7:00AM (EDT)

Laurence Tribe; Donald Trump (Getty/Chip Somodevilla/Pool)
Laurence Tribe; Donald Trump (Getty/Chip Somodevilla/Pool)

House Democrats continue to move in a plodding and methodical way toward the impeachment of Donald Trump. On Aug. 8, the House Judiciary Committee, under the leadership of Rep. Jerry Nadler, D-N.Y., announced the formal launch of impeachment proceedings.

But the Democratic Party's leadership is also sending mixed signals, vacillating between being relatively direct about their desire to remove Trump from office and then signaling a clear lack of enthusiasm for actually doing so.

It may soon be too late to impeach and remove Donald Trump from the presidency before he has done irreparable harm to American democracy — and perhaps before he moves to an even more dangerous stage in his fascist-authoritarian campaign to usurp the rule of law in his favor.

Donald Trump continues to tell his supporters that he may be in office longer than two terms. He and other Republicans and their media supporters continue to lie about "voter fraud" and falsely claim that millions of "illegal aliens" regularly vote for the Democratic Party. This is a way of delegitimizing the 2020 presidential election so they can claim that it was "stolen" if Trump is defeated. In reality, it is the Republicans who have engaged in systematic voter suppression aimed at distorting or undermining American democracy.

Donald Trump has failed to follow through on his oath to protect the United States from enemies both foreign and domestic. He aids and abets America's enemies, and clearly means to encourage Russia to interfere in the 2020 presidential election. Why? Because Vladimir Putin's agents are working to keep Donald Trump and the Republican Party in power, over and against the wishes of the American public.

White supremacist and other right-wing terrorists are now the No. 1 domestic threat to the safety of the American people. But Donald Trump refuses to commit the full weight of the federal government to stop their attacks, which have killed dozens of people during his presidency. Why? Because white supremacists and other right-wing extremists support Donald Trump. Trump in turn does not want to alienate them. In many ways he has given aid and comfort to their hateful ideology, and tacitly endorsed their acts of violence.

Through his public policies and comments, Donald Trump has demonstrated that he is a white supremacist, a racist and a nativist.

Trump continues to use scripted violence and stochastic terrorism against his political opponents. Most recently, he has targeted Reps. Ilhan Omar and Rashida Tlaib with slurs that they are anti-Semites, and by implication that the Democratic Party hates Jewish people. It is no coincidence that both women are Muslim and nonwhite. In his efforts to create racial discord and violence, on Tuesday Trump also claimed that Jewish Americans who support Democrats are somehow "disloyal."  This is another example of Trump's blatant anti-Semitism.

Donald Trump continues to behave like a mad king. In another example of his unbalanced mental condition, he hatched a ludicrous scheme to buy Greenland from the nation of Denmark (which controls Greenland as an autonomous territory). The Danish prime minister has rejected Trump's request, and now Trump has angrily canceled a scheduled trip to Copenhagen, which was to take place in two weeks.

How did special counsel Robert Mueller's testimony before Congress help or hurt the quest to impeach Donald Trump? Did Mueller reveal the entire truth about Donald Trump and his inner circle's collusion with Russia, obstruction of justice and other probable crimes? Are the Democrats approaching the impeachment of Donald Trump in a tactically and strategically sound manner? How would the framers of our Constitution respond to Donald Trump's behavior as president? Have the Constitution's structural flaws allowed Trump to undermine American democracy and the rule of law?

In an effort to answer these questions and many others, I recently spoke with Laurence Tribe, a leading scholar of constitutional law and the Carl M. Loeb University Professor at Harvard University. Tribe is the author of several books, including his most recent (co-written with Joshua Matz), "To End a Presidency: The Power of Impeachment."

This conversation has been edited for clarity and length. You can also listen to my full conversation with Laurence Tribe through the player embedded below.

When you watched Robert Mueller's testimony before Congress several weeks ago, what did you see?

Mueller's testimony in the morning before the House Judiciary Committee was very sad. The Republicans engaged in partisan attacks on him. Mueller was obviously tired. He was also a lot older than people remembered him to be. Mueller was not as much in command of all the information and details of his own report as he might have been. And Mueller was clearly being very careful to say as little as possible.

By the end of the morning I really thought the whole matter was going to end being in rather bad shape. Even though Mueller's testimony was not supposed to be theater, the reality is that his performance matters because of public perception. If we don't wake people up to understand the gravity of what is happening with Trump's presidency and his behavior, then American democracy will not be saved. Without doing something to really engage the public, while also communicating how dire the situation is with Donald Trump's administration, a great opportunity will have been missed. That is sad. But it is also reality.

In the afternoon things were quite different when he testified before the House Intelligence Committee. When Mueller was focused on the attacks on the United States and our national security, as opposed to narrow legalistic issues about obstruction of justice, he really came to life. And it was obvious that as Rep. Adam Schiff rather expertly led Mueller through the conclusions he reached in the Trump-Russia report, Mueller was much more open. Mueller made it absolutely clear to anyone who is paying attention even on a basic level that United States democracy has been under attack.

Part of the attack helped elect Donald Trump. Trump invited this attack. Trump welcomed this attack on the United States. Trump exploited it — and this attack on America is going on every day and not only from Russia but perhaps even other countries as well. With the replacement of Dan Coats as director of national intelligence,  we are in even worse shape as a country.

Mueller's afternoon testimony was an absolute bugle call to action. I was glad that it began to wake up more people in the House of Representatives. I was very much encouraged by the fact that the House really has begun what amounts to a de facto impeachment inquiry.

Mueller knows so much more about what actually transpired — and is still going on with Trump and Russia and related matters — than he offered during his testimony. Was I misreading Mueller's behavior?

I agree. There is no question that if one reads the actual Mueller report with an open mind, rather than reading it for whatever preconceived conclusion one may bring to it, is absolutely clear that a hostile foreign nation undertook actions with the goal of influencing the 2016 presidential election for Donald Trump. This was done implicitly and with his invitation. There is no question about that fact. Mueller says as much in the report.

When Robert Mueller says, "I couldn't find enough evidence to charge anyone with conspiracy," that is legal mumbo-jumbo. That parsing was based on conclusions he had already made, based on, I think, a rather fallacious but nonetheless governing memo of the Office of Legal Counsel that he cannot indict a sitting president for anything, no matter what the president may do.

Therefore it did not matter that Mueller did not find sufficient evidence of what the law calls "conspiracy." Mueller found plenty of evidence of actions by Donald Trump's people to win power with the help of a foreign country, a country that has America's worst interests and not our best interests at heart. Volume One of Mueller's report nailed it in terms of showing that Donald Trump and his inner circle engaged in actions that may technically not be treason but certainly are acts of treachery and a betrayal of the United States.

Volume Two of Mueller's report found that all of the elements of obstruction of justice were met. There were over a thousand prosecutors, Republicans as well as Democrats, who said in plain English that Mueller's report shows that Donald Trump is a criminal and if Trump were not president of the United States he would have been indicted for witness tampering and many other things.

Robert Mueller's report absolutely nailed the president. If the framers of the United States Constitution could be resurrected from their graves, they would impeach and remove Donald Trump immediately. But it is up to our representatives. That is what the House of Representatives is doing by gathering evidence. An impeachment inquiry will overcome phony claims of privilege and immunity by Donald Trump. When the House of Representatives is exercising what the Constitution calls its "sole power of impeachment," then all bets are off in terms of stonewalling by the president's defenders.

At some point the courts will directly order testimony and the unsealing of the grand jury material. If Attorney General [Bill] Barr tries to defy those orders or if Trump tries to defy them, then all of the people who are asleep at the switch and who are not yet ready to pull the impeachment trigger will wake up. I do not think that even Mitch McConnell would sit still if someone like Donald Trump literally defies an order from the United States Supreme Court. But then again I have certainly been wrong before about how far "Moscow Mitch" will go to do Donald Trump's bidding.

The Constitution is being bent, abused and almost broken by Trump's regime. Is this a function of  fundamental flaws in the Constitution, or is it that elected officials have failed and not the document itself?

The latter. The Constitution is not perfect. It has any number of flaws, such as the Electoral College. But despite its structural flaws the United States Constitution is pretty good — if we have the right people leading the country. But if you have a Congress of the United States that has no interest in doing anything but getting re-elected, and if they're slavishly following one leader and they're unwilling to hold them to account, then the United States and the American people are really in trouble.

If Mitch McConnell and Donald Trump would be willing to defy the United States Supreme Court, and if after having done such a thing they got away with it, then the United States really is stuck. We have lost our democracy. But I'm not convinced that we've gone that far. Even if it's true that a lot of Trump's people and other Republicans do not possess any deeply held beliefs in anything but themselves — don't care about anything except about their own fame, their own power, their own wealth — in the end the people rule in the United States.

Until the military rolls out and starts doing to the American people what Vladimir Putin and his other dictator friends around the world are doing to their people, the people in power in America are going to eventually have to fold. When enough Americans rise up and say, "Enough, we're not going to let you defy the courts, we're not going to let you defy the rule of law," then we will get our country back. But until that moment the United States and the American people are in real trouble with Donald Trump and his allies.

Demagogues such as Donald Trump expand their power, especially in a failing democracy, by bending norms and then outright breaking them once the earlier precedent has been normalized.  For example, Donald Trump has said that he loves have temporary Cabinet-level appointees in senior positions because then he has the "flexibility" to act without congressional confirmation and oversight. His removal of Dan Coats, as you mentioned earlier, is one of the most recent examples of this strategy.

And Trump is doing that without actually violating the Constitution. Nowhere in the Constitution does it say that a president can't govern with temporary appointees. But Trump is bending all the rules and norms. I'm assuming that if Donald Trump defies the courts people will finally have had enough. But when there is a Supreme Court with [Brett] Kavanaugh and [Neil] Gorsuch, and when everything depends on whether [Chief Justice John] Roberts will hold the line, it is by a pretty thin thread on which American democracy and the rule of law hangs.

Trump has said that, "Well, Article Two allows me to do whatever I want. I have all these powers ..."

Such arguments, where Donald Trump and his defenders try to claim that Article Two says that Trump can do whatever he wants, are just an example of idiocy and illiteracy. Article Two says nothing about how Trump as president can do everything he wants. It says he has the executive power and the duty to see to it that the laws are faithfully executed. It does not say the president can ignore or overrun the law. The United State Constitution is fine. But with Donald Trump there is a man who is president that does not know how to read and is willing to violate the Constitution as well.

The American people have to learn about the Constitution and their own democracy in order to protect it. A small-R republican form of government is a representative form of democracy that is governed by laws and by people that we elect. This form of government only works if the people pay attention to what is happening in their own country and what its leaders are doing. If the people do not vote, or if they don't bother to educate themselves or their children, then the American people get what they deserve — and that is pretty horrible.

Are the Democrats where they should be in terms of impeaching Donald Trump?

Speaker Nancy Pelosi has done, in my opinion, what she needs to do in terms of empowering the House Judiciary Committee, with the cooperation of the Intelligence Committee, to dig into everything in an impeachment inquiry. She's done it without holding a floor vote that would embarrass a number of her more conservative members. It's a question of whether the courts will move quickly enough. We cannot be sure that will happen.

But if the courts move quickly enough so that by this fall former White House counsel Don McGahn will have testified to the fact that Donald Trump ordered him to fire Mueller and then ordered him to lie about it, more people will wake up to this crisis — I hope. When leaks begin coming from the national security and intelligence apparatus which show that, even though Dan Coats is gone, there are still some patriots working in those agencies, it will be clear that the United States is in danger. Again, that will be a moment when more people will see that something needs to be done and Donald Trump needs to be impeached.

Where is America's "manila envelope" moment where somebody inside the intelligence or judicial system says, "Here's what was redacted" or "Here's what Mueller was winking at during his testimony"? If you could talk to that person what would you tell them?

I would tell them that if they care about the country, if they care about what their kids and their grandkids will inherit, they ought to realize that if there was ever a time to blow a whistle and put that manila envelope in the mail, this is it. There is no reason to sit on secrets to protect the country's national security when the national security of the United States is being threatened every minute by Donald Trump.

What specific crimes should Donald Trump be impeached for?

Donald Trump is violating his oath to uphold the Constitution of the United States. Trump is doing that by inviting hostile foreign powers to invade our country, invade our sovereignty, invade our election system. Donald Trump is allowing this so that he can personally profit and enrich himself in violation of the domestic and foreign emoluments clauses of the Constitution. Donald Trump is allowing himself to be compromised by hostile foreign powers and is covering that up through obstructing justice and tampering with witnesses and committing any number of other felonies to hide his tracks.

All of those examples would lead to articles of impeachment. I also believe that Donald Trump should be impeached for how he is exploiting racial divisions to incite hatred and violence in America, violating human rights at the U.S.-Mexico border, and is in general disgracing the office of the presidency and the people of the United States.

Despite its flaws, the United States Constitution has long been seen as a model for emerging democracies around the world. How have Donald Trump and his administration changed that view?

The United States looks bad. There was a time when various countries were asking me to help them write their constitutions, such as Václav Havel in the Czech Republic and Nelson Mandela in South Africa. I think the odds that people abroad would look to American experts to help them write their constitutions now is considerably less. Although our Constitution looks good on paper, it has not fared terribly well in recent iterations, in terms of the people we are appointing to interpret it and the people we are appointing to preserve and enforce it.

By Chauncey DeVega

Chauncey DeVega is a senior politics writer for Salon. His essays can also be found at He also hosts a weekly podcast, The Chauncey DeVega Show. Chauncey can be followed on Twitter and Facebook.

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