With Donald Trump impeached resoundingly on two narrow counts, Democrats left a great deal on the table. However strategically wise or even necessary this might be in the moment — as many have argued — that narrowness carries grave risks for the republic in the long run. Are we really saying it’s OK for a president to kidnap thousands of children from their parents? To lock hundreds of them in cages? To take untold millions of dollars from foreign governments and agents, in violation of the Emoluments Clause? To incite violence against the very people he’s sworn to protect? To engage in the kind of racial bigotry that got Andrew Johnson impeached 150 years ago?
These are just a few of the 26 examples cited by Mehdi Hasan in “The A to Z of Things Trump Could and Should Have Been Impeached For,” examples that began even before Trump took office. As if these acts aren’t bad enough, if we allow all this to go unpunished, not even charged, under Trump, how much worse lies ahead?
A more systematic version of this was put together in a list of 12 articles of impeachment, mostly organized around specific constitutional provisions — the emoluments clause, the "take care" Clause, the appointments clause, etc. — that was drafted and sent to Speaker Pelosi in November by Ralph Nader, working with constitutional scholars Louis Fisher and Bruce Fein. There may not be any method to Trump’s madness, but as Nader, Fisher and Fein remind us, there is definitely a method to what he’s trying to destroy. Reminding the nation of that fact has never seemed more necessary than right now.
(You can watch an unrelated but thematically relevant interview with Ralph Nader, conducted last year by Salon's Andrew O'Hehir, embedded below.)
These proposed articles make clear that Donald Trump alone is not the problem: There’s a blending of charges specific to this president with some long-standing trends they play into, laid out in part in Fisher’s 2000 book, “Congressional Abdication on War and Spending.” Admittedly, this expanded version of impeachment could have been deeply fraught, not to say politically unsalable, if pursued as envisioned in the House.
Presidents since Harry Truman have started wars without congressional authorization , for example, so Trump’s relatively minor actions in this regard would fit comfortably in the what-about-ism wheelhouse. The War on Terror has added another layer as well: Some of Trump’s transgressions echo Obama’s, echoing George W. Bush’s. So leaders of both parties, as well as Trump, would have problems dealing with the issues raised.
That is precisely why we ought to give them our attention. The problems won’t go away by ignoring them. Here’s the full list of articles, with brief quotes or partial descriptions of what each entails:
- Contempt of Congress Trump has "repeatedly and unconstitutionally systematically undermined the congressional oversight power, including the ongoing congressional impeachment inquiry"
- Abuse of the Powers of the President and Abuse of Public Trust Trump has"repeatedly and unconstitutionally systematically undermined the congressional oversight power, including the ongoing congressional impeachment inquiry," and has "secretly deployed special forces abroad and employed secret guidelines for targeted killings"
- Appropriations Clause, Revenue Clause Unauthorized spending on Mexico wall; imposing tariffs
- Emoluments Clause Trump "continues to profit from opulent hotels heavily patronized by foreign governments. He has permitted his family to commercialize the White House," etc.
- Treaty Clause Terminating the Iran nuclear deal unilaterally, without consulting Congress
- Declare War Clause Presidents have been violating this at since the Korean War in 1950
- Take Care Clause; Presentment Clause This refers to obstructing the Mueller investigation, declining to "enforce statutory mandates of Congress by arbitrarily and capriciously revoking scores of agency rules," routinely legislating by executive order, dismantling and disabling "scores of preventive measures to save lives, avoid injuries or disease, help families, consumers, and workers, and detect, deter, and punish tens of billions of dollars of corporate fraud" and using signing statements as "the equivalent of unconstitutional line-item vetoes"
- Due Process Clause Targeted killings in the War on Terror, as both Bush and Obama did previously
- Appointments Clause Trump's pattern of "acting" appointments to avoid Senate confirmation
- Soliciting a Foreign Contribution for the 2020 Presidential Campaign and Bribery This is covered by the Democrats' existing "abuse of power" charge
- Violating Citizen Privacy Refers to "suspicionless surveillance of Americans for non-criminal, foreign intelligence purposes under Executive Order 12333 and aggressive interpretations of the Foreign Intelligence Surveillance Act"
- Suppression of Free Speech This refers to "stretching the Espionage Act to prosecute publication of leaked classified information," and even more specifically to the indictment against Julian Assange
The Declare War Clause might appear particularly weak as a political argument, since Fisher himself told Salon, “Trump certainly has used military power unilaterally, but I think Obama did much greater damage with his actions in Libya.” As he noted in October, and as mentioned above, "Beginning with President Truman’s commitment of U.S. troops to Korea in 1950, the constitutional system that vests the war power with Congress has been regularly violated."
Repeated violations do not transform wrong into right. But they do make impeachment seem like a reach, especially since Trump’s war-declaration violations seem relatively insignificant. But this is where we need to look more closely at the specific article text. First it declares:
In violation of the Declare War Clause, President Trump has continued to wage or has initiated presidential wars in Libya, Somalia, Yemen, Syria, Iraq, Afghanistan, and Pakistan, and has used special forces offensively in several African nations.
This is what Fisher noted was less damaging than what Obama had done in Libya. But then the article continues:
President Trump has claimed authority to initiate war against any nation or non-state actor in the world — not in self-defense — on his say-so alone, including war against North Korea, Iran, or Venezuela.
Indeed, Trump has threatened North Korea with nuclear war, which would immediately catapult him from being a less grievous violator than most of his predecessors to being the greatest of them all. So what might be a weakness for the purpose of actually impeaching Trump is a strength in terms of revealing the seriousness of the deeper problems his presidency has heightened.
Careful inspection of other proposed articles show other ways in which related constitutional concerns cast a far more troubling light when considered in combination than in isolation. The Appointments Clause article is a simple example of this. Taken one by one, Trump’s evasions of congressional oversight would have been exceptional in past administrations. He has made them routine. It’s precisely their routine nature, rather than any one specific example, which makes them worthy of impeachment.
In a more complex fashion, the Contempt of Congress article encompasses a range of ways in which Trump has thwarted congressional oversight powers, which, it notes, “are even more important than its legislative prerogatives.” This encompasses much more than the Obstruction of Congress article actually passed by the House:
President Trump has repeatedly and unconstitutionally systematically undermined the congressional oversight power, including the ongoing congressional impeachment inquiry of the President himself, by instructing numerous current and former White House staff and members of the executive branch to defy congressional subpoenas on an unprecedented scale far beyond any previous President…. He has unconstitutionally endeavored to block private persons or entities from responding to congressional requests or subpoenas for information, e.g., Deutsche Bank. He has refused to provide Congress information about nepotistic or other security clearances he granted in opposition to his own FBI security experts. He has refused to disclose his tax returns to the Chairman of the Ways and Means Committee contrary to a 1924 law, 26 U.S.C. 6103 (f).
All these actions need to be seen as parts of a whole. From a purely legalistic perspective, all the listed abuses might need to be litigated for years, no matter how preposterous the arguments Trump’s lawyers might advance. But litigating them on a case-by-case basis obscures the systematic destruction of the congressional power of oversight that is their underlying purpose. That's a strong argument why they should all have been dealt with via impeachment, which in turn would help deter similar abuses in the future. Not having done that, Congress will have to take other steps, simply because Trump has shown how badly the existing system can be gamed.
Or consider Article 7, encompassing the Take Care and Presentment clauses. The Take Care Clause (holding that the president "shall take Care that the Laws be faithfully executed") lies at the heart of the president’s duties, intimately related to the Oath Clause, swearing or affirming "that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
Before turning to its specifics, we should consider the underlying question that was raised shortly after Trump’s election by Lawfare editor Quinta Jurecic: Is it even possible for a Frankfurtian bullshitter like Trump, who just makes things up as needed, “to ‘take care’ or to act ‘faithfully’ in the execution of the law?” She doubted it — unless he were to cease being a bullshitter. “Notably,” she wrote, “the Oath Clause and Take Care Clause are unique among Article II requirements in being fundamentally incompatible by their nature with bullshit.” A bullshitter might perform other presidential duties poorly, she noted, but the requirements of those clauses “are fundamentally irreconcilable with the character type and the behavior.”
Jurecic wasn’t making a legal argument against Trump taking office, but she warned that “there exists a foundational incompatibility between our President-elect and the duties of the office that he will soon hold," adding that "we should thus expect serial questions to arise about whether he has, in fact, honored his oath and obeyed the Take Care Clause.”
That's precisely what this impeachment article documents. Trump violated that trust in dealing with the Mueller investigation — refusing to answer question, trying to fire the special counsel, dangling pardons, trying to get then-Attorney General Jeff Sessions to un-recuse himself — but also in his all-out war on regulatory protections:
President Trump has also systematically declined to enforce statutory mandates of Congress by arbitrarily and capriciously revoking scores of agency rules ranging from immigration to the Consumer Financial Protection Board to the Environmental Protection Agency in violation of the Administrative Procedure Act or otherwise. He has routinely legislated by executive order in lieu of following constitutionally prescribed processes for legislation. ...
Mr. Trump has dismantled and disabled scores of preventive measures to save lives, avoid injuries or disease, help families, consumers, and workers, and detect, deter, and punish tens of billions of dollars of corporate fraud. He has disputed climate disruption as a “Chinese hoax,” compounded the climate crisis by overt actions that expand greenhouse gas emissions and pollution, and excluded or marginalized the influence of civil service scientists.
As with the Contempt of Congress article, the whole is much more than the sum of the parts. The whole makes sense precisely in the terms that Jurecic laid out. It is a wholesale assault on the very concept of what the presidential oath demands: faithful stewardship of the law. While any one of the particulars above can be argued in terms that seem more or less legally plausible, such arguments are suspect at best once one grasps the whole of what’s going on. That’s precisely what’s needed to defeat what Trumpism represents — not just by impeaching him, but by reversing the descent into meaninglessness, where ultimately no law at all is possible. "Law is the very opposite of bullshit in Frankfurt’s sense" Jurecic wrote, "a highly systematized structure of meaning." That’s literally what’s now at stake.
But there’s something more in this article. It also deals with the Presentment Clause — the process by which bills become laws. It notes that line-item vetoes were struck down by the Supreme Court, but Trump and other presidents have found an end-around:
President Trump, however, like several of his predecessors commonly exercises the equivalent of unconstitutional line-item vetoes through signing statements declaring his intent to leave unexecuted provisions he decrees are unconstitutional without a court test. Presidential signing statements weaken legislative power by disarming Congress from bundling in a single bill provisions both liked and disliked by the President and forcing the White House to choose between all or none.
It’s an argument I favor regarding unconstitutionality, which the article notes an ABA task force advised back in 2006. But there are multiple problems with this as an article impeachment. First, an unconditional act isn’t the same as an impeachable one, especially if the Supreme Court hasn’t ruled on it. Second, as with the War Powers argument, this didn’t start with Trump, but unlike the War Powers case, there’s a relative lack of synergy between the Presentment Article violations and the rest of this article. There’s nothing remotely similar to Trump’s threat of nuclear war.
This illustrates a larger point about this whole list of impeachment articles, which has much to recommend it for highlighting serious threats to our democratic republic, threats that will only worsen if we ignore them. But the question of how to remedy the situation is more complex, and the articles vary considerably in terms of scope (meaning what they encompass) and focus (whether they are limited to this president or are more historical and systemic). I asked Columbia Law School professor David Pozen for his assessment.
“What strikes me immediately about the Nader-Fisher-Fein proposed articles of impeachment is the way they blend critiques of tactics used by all recent presidents with critiques of tactics used only by Trump,” Pozen said.
“The first category reflects the authors' longstanding, principled opposition to the rise of presidential power. Fisher, in particular, has been writing in this vein for years,” he explained, pointing to a passage in Fisher’s 2000 book, “Congressional Abdication on War and Spending”:
Developments over the past half century do little to support the framers' expectations that each branch of government would protect itself by repulsing usurpations and transgressions by other branches. From 1789 to 1945, the framers' constitutional design worked fairly well. Yet from World War II to the present, Congress has repeatedly abdicated fundamental war and spending powers to the president ....
The abdication of authority discussed in this book concerns rock-bottom, nondelegable legislative prerogatives: war and the power of the purse.
“These arguments are important,” Pozen said. “But many constitutional scholars would disagree that the behaviors at issue amount to impeachable offenses. ... I'm not sure I see the point of lumping these more general grievances in with the serious abuses of power that are distinctive to Trump.”
I got a related but slightly different response from Boston University law professor Rebecca Ingber. She grouped the impeachment articles into three categories: “actions that implicate significant policy differences over the President's use of his power; actions where there may be significant dispute over whether the President has overstepped that power; and actions that involve an abuse of that power for personal gain,” the last of which “presents the strongest grounds for impeachment.”
Trump’s abuse of power vis-à-vis the Ukraine saga “falls squarely within this third category,” she said. “And because the abuse of power here is so clear and so stark, I think members of Congress have been wise to focus their proceedings and the nation's attention on this particular act.”
To further illustrate, she explained:
Terminating a treaty likely falls within the first. While it's true that there may be limits on a President's ability to unilaterally terminate it, past presidents have done so and the courts have thus far declined to interfere. The same goes for using covert force abroad.
Relatedly, Pozen directed my attention to a 2018 paper, "Presidential Control Over International Law," by Curtis Bradley and Jack Goldsmith. They argue that “Presidents have come to dominate the making, interpretation, and termination of international law for the United States,” not just “without specific congressional concurrence,” but “sometimes even when it is likely that Congress would disagree.” It’s plausible that this growth in presidential power, and its distance from any kind of popular control has contributed factor to the growth of dangerous nationalist sentiment.
In addition, Ingber went on:
Stretching the boundaries of the President's ability to use force unilaterally, or pushing an expansive view of emergency appropriations statutes might go in the second. Reasonable minds might differ on which of the first two buckets to place these in.
Again, it seems that public debate has long been inadequate to the seriousness of what’s at stake. Ingber continued:
The third is cleanest: the Ukraine saga quite clearly is an example of this. As is the President's requests for interference in the 2016 campaign, and his obstruction of an investigation into that interference. Each of these was done directly to achieve personal, partisan ends.
Other violations were arguably clearcut as well: Trump’s violations of the emoluments clause, for example. But Republicans normalized that from day one, and Democrats inexplicably let them. Not so with Ukraine. The obviously corrupt nature of Trump seeking campaign interference from the Ukrainian government initially resonated across partisan divides. As Rachel Maddow reminded us on Thursday, even “Fox & Friends” initially called it “off-the-rails wrong.” How quickly that’s been forgotten. The facts aren’t in dispute; the president's supporters are simply in denial. As long as that’s so, it will be extremely difficult to engage with the more long-term problems identified in this broader list of articles.
Making real progress is always difficult. That’s not a reason to ignore the problems Nader, Fisher and Fein have identified, which will not go away on their own. On the contrary, as Fisher and Fein have argued in the past, the longer these problems are neglected, the worse they get. When a nation's systemic problems reach a certain point, that’s when bullshit artists like Trump show up to sell easy solutions that are just too good to be true.
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