Has Trump committed impeachable offenses?

Impeachable offenses, according to Article II, Section 4 of the Constitution, are “treason, bribery and other high crimes and misdemeanors”.

I happen to believe that President Trump is unpatriotic and dishonest, but I’m not convinced that he has committed an impeachable offense..

What Are Impeachable Offenses? by Noah Feldman and Jacob Weisberg in the current issue of the New York Review of Books, a good review of the law on the topic.

Feldman and Weisberg point out that, back in 1789, a “high” crime did not necessarily mean an extra-serious crime.   A “high” crime was a crime committed by a public official in the performance of their duties.

A crime committed by a President before taking office, even a very serious one, is not an impeachable offense unless it is, in some way, connected with actions while in office.

So even if it could be proved that Russian individuals or intelligence agencies tried to help Trump during the election, that would not necessarily be an impeachable offense.

An impeachable offense would be Trump, once in office, using the power of the Presidency to pay the Russians back for their help.

It also seems to me that a quid pro quo would be almost impossible to prove.

Take Hillary Clinton’s six-figure speaking fees for speaking to Goldman Sachs officers.  Was this bribery?   She challenged anyone to prove that she changed a single vote or made a single decision in return for these fees, and, of course, nobody could.

This was not bribery.   It is simply that the financiers approved of Clinton and her record.

Vladimir Putin made no secret of the fact that he approved of candidate Donald Trump’s hope for better relations between the United States and Russia if Trump were elected.

Maybe he helped Trump by means of leaking hacked e-mails or propagandizing for Trump on social media.   Maybe not.

But even if he did, that is a long way from bribery, treason or other high crimes and misdemeanors.  It is just that he felt good about Trump and his promises.

By the way, treason under Article III of the Constitution is fighting for the enemy or giving aid and comfort to the enemy in time of war.  An act of treason must be an overt act that is witnessed by two people, or is admitted in open court.

The United States has not declared war on Russia, so being friendly to Russia is no more treasonable that being friendly to Saudi Arabia, Israel, China or any other foreign country.

∞∞∞

Now Feldman and Weisberg do think Donald Trump is impeachable.

Their most plausible claim is that he has violated Article I, Section 9, Clause 8 of the Constitution.  The clause says that “no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

Feldman and Weisberg point out—

Trump is using his office to enrich himself and members of his family.  His “winter White House,” Mar-a-Lago, is a private club that he owns and that charges a $200,000 initiation fee for members to get access to him, his head-of-state guests, and his staff.  Membership fees go as high as $350,000 at his Bedminster, New Jersey, golf club, where Trump spent his August vacation.

One of his first acts as president was a directive reversing a 2015 decision by the Environmental Protection Agency under the Clean Water Act that would have significantly raised water costs at these and other golf courses in which he has invested more than $1 billion over the past ten years.

Trump has provided free advertising for properties he owns by visiting them on more than seventy-five days so far, approximately a third of the days he has been in office. Meanwhile, business people from around the world are admitted to meetings in the Oval Office with the implicit possibility of present or future gain from dealings with his family’s businesses.

When foreign officials stay in a Trump hotel or partner with the company he still owns, they are also giving him an emolument.  [snip]  According to The Wall Street Journal, the Trump International Hotel in Washington, D.C., has raised its rates more than 50 percent in the months since he was elected, and now charges considerably more than comparable hotels.

In any case, Trump has already received foreign emoluments that go beyond any fair exchange, including valuable intellectual property rights from the Chinese government for his business and his daughter’s—rights he was denied before he became president. Was this foreign emolument a reward for Trump dropping his initial hints at abandoning the US government’s long-standing one-China policy?

Is Trump’s friendliness toward Philippine President Rodrigo Duterte related to his license to build a $150 million Trump Tower in Manila? Is his benign view of Recep Tayyip Erdoğan’s crackdown a consequence of his deals in Turkey?

Source: The New York Review of Books

All these things are clearly conflicts of interest, which are improper but not illegal.  But are they violations of the “emoluments” clause?   My old Webster’s dictionary defines an emolument as “the profit arising from office or employment, usually in the form of compensation of perquisites” or “gain from employment or position”.

Trump’s lawyers say that the purchase of goods or services at market value is not an emolument.  But Feldman and Weisberg say that nobody thought so when the Constitution was ratified and no such exception is carved out in the Constitution.

They say Trump should have put his financial assets in a blind trust, as his predecessors have done with their holdings of stocks and bonds.   But it is hard to see how that could work with an ongoing business.

If you own stocks and bonds, you can turn them over to a trustee, who can sell them and buy other stocks and bonds, whose nature you don’t know about.  Supposedly you wouldn’t know how your decisions as President would affect your wealth.

But how would that work with The Trump Organization?   It is not a public company whose stock is sold on the financial markets.   Selling off a complex business such as this would be a long, complicated business.   It might take as long as the life of the Trump administration itself.   And in the meantime, he would know how his decisions affect his business, even if he didn’t know the details.

If a trustee just offered the business as a whole to the highest bidder on short notice, they would get a few cents on the dollar of real value.

It amounts to saying that a business operator such as Trump should not be eligible to run for high public office, which seems harsh.   If Mark Zuckerberg ran for President in 2020, should he be expected to divest his interests in Facebook?

∞∞∞

The other plausible grounds for impeaching Trump are obstruction of justice.   This was one of the three articles of impeachment brought against President Richard Nixon in 1974.   He was accused of trying to pay off witnesses during the investigation of the Watergate burglary.

The other two articles were abuse of power (using the Internal Revenue Service against political enemies) and contempt of Congress (failure to comply with a subpoena for information).

Nixon was not accused of complicity in the Watergate burglary itself.  Hence the saying, “It’s not the crime, it’s the coverup.”

It’s possible that the Robert Mueller investigation will fail to come up with evidence of any of the so-called Russiagate charges, but that Trump could be impeached on charges of obstruction of justice for interfering with the investigation.

LINK

What Are Impeachable Offenses? by Noah Feldman and Jacob Weisberg for New York Review of Books.

We Know a Lot (and Nothing) About What Robert Mueller Is Doing by Christian Farias for New York magazine.

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