Abuse of Power, Bribery and Obstruction: Judiciary Committee Lawyers Lay Path for Impeachment
"A President who perverts his role as chief diplomat to serve private rather than public ends has unquestionably engaged in 'high crimes and misdemeanors'—especially if he invited, rather than opposed, foreign interference in our politics," the Judiciary Committee report reads.
December 07, 2019 at 01:33 PM
5 minute read
The original version of this story was published on National Law Journal
Democratic staff on the House Judiciary Committee have released a report titled "Constitutional Grounds for Presidential Impeachment," helping to lay the groundwork for articles of impeachment against President Donald Trump.
The 55-page report, written entirely by staff for the Judiciary Committee, is similar to other reports released in prior impeachment inquiries. It goes through the history of impeachment, defines impeachable offenses and seeks to clarify what the staff calls "a number of inaccurate claims" recently made about how the proceedings work.
Among the report's authors are former Obama White House ethics counsel Norm Eisen, Kramer Levin Naftalis & Frankel partner Barry Berke and Kaplan Finker & Heck of counsel Joshua Matz. Eisen and Kramer joined the committee in February, and Matz came on board in October.
Committee staffers, including James Park, the panel's chief constitution counsel, are also listed as authors of the report.
The report's definitions of impeachable offenses offers hints on the specific articles of impeachment likely to be drafted against Trump.
For example, it defines both treason and bribery, but dedicates significantly more time in defining bribery. Eisen also questioned constitutional scholars about bribery during a hearing this past week, further signalling it's likely to be the subject of one of the articles of impeachment.
"To summarize, impeachable 'Bribery' occurs when a President offers, solicits, or accepts something of personal value to influence his own official actions," the report said. "Bribery is thus an especially egregious and specific example of a President abusing his power for private gain."
And the report dedicates several pages to exploring the framers' concerns about foreign influence on American politics, particularly in U.S. elections.
"Accordingly, where the President uses his foreign affairs power in ways that betray the national interest for his own benefit, or harm national security for equally corrupt reasons, he is subject to impeachment by the House. Any claims to the contrary would horrify the Framers," the staffers wrote.
"A President who perverts his role as chief diplomat to serve private rather than public ends has unquestionably engaged in 'high Crimes and Misdemeanors'—especially if he invited, rather than opposed, foreign interference in our politics."
The report also describes abuses of power. While acknowledging that there are too many potential kinds of abuses to define them all, it says that if a "president engages in acts forbidden by law, or acts with an improper motive, he has committed an abuse of power under the Constitution."
And the report goes into detail about former President Richard Nixon's obstruction of the impeachment inquiry into him, setting the stage for a similar charge to be levied against Trump.
"Put simply, President Nixon purported to control the exercise of powers that belonged solely to the House and not to him—including the power of inquiry that is vital to any Congressional judgments about impeachment. In so doing, President Nixon injured the constitutional plan," the staffers wrote.
And, in another section of the report, the committee staffers take on Trump's refusal to allow key witnesses to testify and to provide certain evidence to investigators.
"In light of President Trump's unlawful and unqualified direction that governmental officials violate their legal responsibilities to Congress, as well as his pattern of witness intimidation, the House may reasonably infer that their testimony would be harmful to the President—or at least not exculpatory," they wrote. "If this evidence were helpful to the President, he would not break the law to keep it hidden, nor would he engage in public acts of harassment to scare other witnesses who might consider coming forward."
The staffers also address "fallacies" about impeachment. While it does not name him directly, it appears to counter claims made by White House counsel Pat Cipollone, who has called the impeachment inquiry "unconstitutional."
The staffers defended the way the House has conducted its impeachment inquiry, saying their approach "adheres to the Constitution, the Rules of the House, and historical practice."
It also rejected claims that Trump has not been offered "due process" during the inquiry.
"If the House approves any articles of impeachment, the President is entitled to present a full defense at trial in the Senate. It is thus in the Senate, and not in the House, where the President might properly raise certain protections associated with trials," the report states.
And it said that, if a president was not successful in carrying out what would be a potentially impeachable offense, that does not mean he should not be removed from office.
"Common sense confirms what the law provides: a President may be impeached where he attempts a grave abuse of power, is caught along the way, abandons his plan, and subsequently seeks to conceal his wrongdoing," the report reads. "A President who attempts impeachable offenses will surely attempt them again. The impeachment power exists so that the Nation can remove such Presidents from power before their attempts finally succeed."
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