Email #293: “grounds for impeachment”?

In July, Rep. Sherman and Rep. Green introduced articles of impeachment arguing that President Trump obstructed justice by hindering a criminal investigation into former national security advisor Michael Flynn, including requesting that FBI director Comey curtail the investigation and then firing Comey when Comey refused.

In August, Rep. Cohen drafted articles of impeachment arguing that President Trump failed the “presidential test of moral leadership” after his remarks about the white supremacist violence in Charlottesville. Cohen intends to introduce those articles this month.

I lack the legal and constitutional expertise to fully evaluate them, but in my lay understanding of impeachment Rep. Cohen’s articles seem to fall short of the necessary standards. Even if the President did objectively fail a “test of moral leadership,” I don’t believe that creates the legal grounds for his removal. Is that correct? But if the President obstructed justice, then Reps. Sherman and Green’s articles would have legal merit. Is that also correct? Since as chair of the House Judiciary Committee you control the impeachment process, could you please explain your criteria for determining whether to bring articles to a vote?

I understand that there are multiple Congressional investigations into these and directly related matters being run by the Senate Intelligence Committee, the House Intelligence Committee, the House Oversight and Government Reform Committee, and the Senate Judiciary Committee—though for some reason not your own House Judiciary Committee—and of course special counsel Mueller is investigating them from the executive branch.

Reports from these five investigations may or may not lead to further articles of impeachment. But in the meantime, Congress is not barred from moving forward with impeachment now. I am not arguing that it should. I would simply like to understand your position on entertaining articles, since your rhetoric seems so contradictory.

You said as recently as this month that: “Throughout President Obama’s time in office, he used his ‘pen and phone’ to overstep his authority and unilaterally rewrite our nation’s laws… His actions were wholly unconstitutional.” In December 2014 you said: “President Obama declared war against the Constitution.” While those certainly sound like impeachable offenses, you also said in 2014: “We are not working on or drawing up articles of impeachment. The Constitution is very clear as to what constitutes grounds for impeachment of the President of the United States. He has not committed the kind of criminal acts that call for that.”

I assume you can see how very unclear that distinction is to both your Republican and Democratic constituents. How can a president wage “war on the Constitution” through “wholly unconstitutional” actions and also be protected by the Constitution from impeachment? Since calls for impeachment are likely to increase in the coming weeks and months as the five investigations complete their work, it would benefit the nation if you would clarify your ambiguous threshold for moving articles to a vote within the House Judiciary Committee and so then on for consideration by the entire House.


Email #191: “50-50”?

I read Wednesday that the independent counsel has been investigating whether the President committed obstruction of justice by interfering with the FBI. This of course contradicts the President’s repeated insistence that he is not under investigation. Before this news, prediction markets were giving President Trump only a 40% chance of completing his full term. PredictIt co-founder John Aristotle Phillips said: “It’s almost 50-50 that he won’t be in office by the end of 2018.”

Do you believe the impeachment process could move that quickly?

For President Nixon and the Watergate scandal, a Senate Select Committee was created in February 1973, began hearings in May, and issued its report in late June. The House didn’t pass its impeachment inquiry until February 1974, after which the House Judiciary Committee held its own investigation and hearings, culminating with the House impeaching President Nixon in July. He resigned in August, before the Senate began a trial.

For President Clinton and the Monica Lewinsky scandal, independent counsel Kenneth Starr was appointed in October 1997 and released his report in September 1998. The House Judiciary Committee began considering impeachment the same month. The House passed an impeachment inquiry in October and impeached President Clinton in December. The House process was slowed by November mid-term elections and Speaker Gingrich’s resignation after Democrats gained five seats despite predictions that Republicans would gain as many as thirty. The Senate cleared the President on all counts in January.

So for Nixon, the process, from report release to his leaving office, took roughly thirteen months, after four months for the initial investigation. For Clinton, the process, from report release to acquittal, took sixteen months, after eleven months for the initial investigation. Those total seventeen and twenty-seven months, and so average a little under two years. That gives those betting on President Trump leaving office by the end of 2018 reason to be hopeful.

But when did the clock start? The FBI confirmed in March that it was already investigating possible collusion between Russia and members of the Trump administration, but not of the President himself. Four Congressional committees are conducting similar investigations, but again not of the President. However, all five investigations could and almost certainly will include details about the President, and their scopes could expand. Kenneth Starr was appointed to investigate Whitewater real estate deals, but ended up deposing President about a sexual affair. There’s also no knowing when any of those investigations will be completed and their reports released.

So given the historical precedents, 50-50 sounds like pretty reasonable odds. How confident are you that the President will still be in office after the 2018 mid-terms? Since you will have completed your third term as chair of the House Judiciary Committee and your successor will take over in January 2019, do you predict you’ll be handing over the impeachment process too?

Email #186: “obstruction of justice?”

During his Senate testimony last week, former FBI Director James Comey was asked about the President’s request to end the investigation of Michael Flynn:

“Do you believe this will rise to obstruction of justice?”

Comey answered: “I don’t know. That — that’s Bob Mueller’s job to sort that out.”

I also don’t know. But I do know that, in addition to the independent counsel, it is also your job to sort that out, since the Constitution requires you to begin impeachment hearings if there’s credible evidence.

According to federal law, the President would be guilty of obstruction of justice if he “corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.” According to the Legal Information Institute, the law applies to the FBI investigation because “a defendant can be convicted of obstruction of justice by obstructing a pending proceeding before Congress or a federal agency. A pending proceeding could include an informal investigation by an executive agency.”

According to Comey, the President committed obstruction of justice when he told him, “I hope you can let this go.” Comey testified: “I took it as a direction. I mean, this is the president of the United States, with me alone, saying, ‘I hope’ this. I took it as, this is what he wants me to do.”

Comey also testified that his firing may be an additional obstruction of justice: “I was fired because of something about the way I was conducting the Russia investigation was, in some way, putting pressure on him, in some way, irritating him. And he decided to fire me because of that… I was fired, in some way, to change — or the endeavor was to change the way the Russia investigation was being conducted.”

Currently there is only Comey’s sworn testimony, which the President has called untrue and irrelevant: “I didn’t say that. And there’d be nothing wrong if I did say it.” Reportedly, the President also asked NSA Director Mike Rogers and Director of National Intelligence Dan Coats to intervene in the investigation, but neither would discuss this in the Senate open hearing last week. Coats said: “I do not feel it’s appropriate for me to in a public session in which confidential conversations between the President and myself.”

As you know and have repeatedly said, oversight of the Justice Department is the primary jurisdiction of the House Judiciary Committee. The FBI is a branch of the Justice Department, and yet you have not responded to allegations and evidence of attempts to obstruct one of its most critical investigations. Will you fulfill you constitutional duty as chair and ask Directors Coats and Rogers to testify in a private session? If either confirms the allegations, will you fulfill your duty to the nation and begin impeachment proceedings?

Email #183: “grounds for impeachment”?

Donald Trump thought that the impeachment of President Clinton in 1998 was “nonsense,” but that Speaker Nancy Pelosi should have led an impeachment of President Bush for misleading the public about Iraq’s weapons of mass destruction. Trump said to CNN’s Wolf Blitzer in 2008:

“Well, you know, when [Pelosi] first got in and was named speaker, I met her. And I’m very impressed by her. I think she’s a very impressive person. I like her a lot. I was surprised that she didn’t do more in terms of Bush and going after Bush. It was almost — it just seemed like she was going to really look to impeach Bush and get him out of office, which, personally, I think would have been a wonderful thing.”

Blitzer: “Impeaching him?”

Trump: “Absolutely, for the war, for the war.”

Blitzer: “Because of the conduct of the war.”

Trump: “Well, he lied. He got us into the war with lies. And, I mean, look at the trouble Bill Clinton got into with something that was totally unimportant. And they tried to impeach him, which was nonsense. And, yet, Bush got us into this horrible war with lies, by lying, by saying they had weapons of mass destruction, by saying all sorts of things that turned out not to be true.”

You voted to impeach President Clinton. Looking back, do you agree with President Trump that your decision was “nonsense” and the matter “totally unimportant.” Do you agree with the President that President Bush should have been impeached for “lying” and “saying all sorts of things that turned out not to be true”?

In 2014, you said on ABC that you disagreed with calls from fellow Republicans to impeach President Obama: “The Constitution is very clear as to what constitutes grounds for impeachment of the President of the United States. He has not committed the kind of criminal acts that call for that.”

But the Constitution is not very clear. It only states: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”Before he resigned, President Nixon was going to be impeached because he “prevented, obstructed, and impeded the administration of justice.” But House Republicans impeached President Johnson in 1868 for breaking the now defunct Tenure of Office Act by firing a cabinet member and for failing to execute The Reconstruction Acts.

The phrase “high crimes and misdemeanors” is ambiguous too, but it typically includes: “allegations of misconduct peculiar to officials, such as perjury of oath, abuse of authority, bribery, intimidation, misuse of assets, failure to supervise, dereliction of duty, unbecoming conduct, and refusal to obey a lawful order.”

While perjury and bribery are clearly defined crimes, intimidation and unbecoming conduct are not. White House lawyers have started to consult experts on impeachment proceedings. I imagine members of your House Judiciary Committee have been brushing up too since the committee is considered “the lawyer of the House of Representatives” and is in charge of impeachment.

You seemed to have been anticipating impeaching Secretary Clinton when it appeared she would be elected president last fall. You accidentally refered to a “perjury referral” as an “impeachment referral” when describing your questioning of FBI Director Comey about Clinton’s testimony to Congress.

Given the ambiguity of the impeachment clause and the vacillating opinions of so many politicians regarding its use, would you please explain your interpretation of that law? What areas of misconduct apply and do not apply and at what evidentiary thresholds?

According to his written testimony, former FBI Director James Comey “understood the President to be requesting that we drop any investigation of Flynn.” He considered the request “very concerning” but because “it was a one-on-one conversation” and so “there was nothing available to corroborate,” he did not “report it to Attorney General Sessions.” Do you consider this evidence of abuse of power?

News agencies have also recently reported that the President requested Director of National Intelligence Daniel Coats and CIA Director Mike Pompeo to intervene with Comey to end the FBI investigation. If Coats and Pompeo corroborate this account, would you consider it evidence of obstruction of justice?

You said the deputy attorney general’s appointment of a special counsel “will help instill much needed public confidence in the investigation.” Public confidence is much needed in your own office too. While I have no idea what will emerge from the current FBI, Senate, House investigations, you constituents need to know that you will set aside all political considerations and evaluate the facts according to transparent principles. To do that, you need to communicate those principles in advance of any investigative findings.

Email #127: “not good stuff”?

Republican Senator Jeff Flake said earlier this month:

“I expect people want someone who will say, ‘I’m voting with Trump on the good stuff and standing up to him on the not good stuff.’”

The senator expects correctly. And right now the top of “the not good stuff” list includes: 1) the disclosure of highly classified information to a country the U.S. intelligence community unanimously determined interfered in the election, 2) the firing of the FBI director for conducting an investigation into the Trump campaign’s collusion in that interference, 3) and an attempt to end the investigation into former National Security Advisor Michael Flynn through a direct request to the FBI director.

Like Senator Flake’s constituents, many of yours are waiting for you to stand up to the President on “the not good stuff” too. According to the director of the Federation of American Scientists Project on Government Secrecy, President Trump cannot be prosecuted for revealing sensitive intelligence:

“Instead, reckless disclosures by the president of classified information that damaged the national security, if they occurred, might be grounds for impeachment.”

Are you prepared to stand up to and impeach the President if investigations into the disclosure finds them to be reckless?

According to Harvard professor of law Mark Tushnet:

“Trump’s firing of Comey is not an obstruction of justice, so long as there is somebody to step in and continue the investigation.”

But this was before Director Comey released his February memo, documenting the President’s request to end the investigation:

“I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.”

Are you prepared to impeach the President if investigations find that his request to Comey was an obstruction of justice?

White House officials have denied Comey’s memo:

“This is not a truthful or accurate portrayal of the conversation between the president and Mr. Comey… The president has never asked Mr. Comey or anyone else to end any investigation, including any investigation involving General Flynn.”

The denail means someone is lying. If it’s shown to be the President, what actions will you take?

This stand-off and the rest of “the not good stuff” places the nation in general, Congress specifically, and GOP leaders especially in a difficult position. Secretary of State Tillerson was asked on NBC:

“What’s the line between service to the president and service to the country, sir? For you.”

Tillerson answered:

“I will never compromise my own values, Chuck. And so that’s my only line. And my values are those of the country.”

What is you answer?

Until now that line has been blurry. It was possible for you and other Republicans to serve President Trump and the country simultaneously. But the escalation of the President’s alarming actions undermines that possibility. As Professor Tushnet said:

“Maybe people didn’t realize this, but in fact the legal checks are not very strong. But there are also political checks on what the president can do, and we’re learning in real time whether those checks are effective.”

Are you willing to stand up to the President and show that political checks are effective? Republican Senator Rubio said over the weekend:

“If any president tries to impede an investigation — any president, no matter who it is — by interfering with the FBI … it would be not just problematic. It would be, obviously, a potential obstruction of justice that people have to make a decision on.”

What decision will you make? Which do you value more: your president or your country?

Email #161: “uphold our Constitution”?

The Constitution states that “The President, Vice President, and all civil Officers of the United States shall be removed from Office on Impeachment for, and conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.”

To the best of my knowledge, President Trump has committed no impeachable crimes. But according to former FBI Director Comey, the investigation of possible collusion between Russia and the Trump campaign is underway because it met the FBI’s evidentiary threshold. So there is “a credible allegation of wrongdoing or reasonable basis to believe that an American may be acting as an agent of a foreign power.”

We also know that the President has made multiple false and misleading statements about the investigation. He tweeted over the weekend: “When James Clapper himself, and virtually everyone else with knowledge of the witch hunt, says there is no collusion, when does it end?”

Clapper, the former Director of National Intelligence who retired in January, said in March that he was not aware of any evidence of collusion because he was not involved in any investigation. He repeated this over the weekend: “I don’t know if there was collusion or not.” He also added:

“our institutions are under assault both externally — and that’s the big news here, Russian interference in our election system — and I think, as well, our institutions are under assault internally…. the Founding Fathers … created a system of three co-equal branches of government, and a built-in system of checks and balances. And I feel as though that’s under assault and is eroding.”

When asked to clarify if he meant that our institutions are under assault internally by the President, he responded: “Exactly.” It is peculiar then for the President to cite Director Clapper to support his claim that he is not being investigated. The fact-checking website gives the President a “mostly false” on that point.

While it is not an impeachable offense for a President to make “mostly false” statements unless under oath, it does illustrate Clapper’s concern. Why is President Trump openly misleading the American public about the investigation? And, equally importantly, why are you allowing this?

You assured me in January that you would “uphold our Constitution and put the interests of the citizens of the 6th District of Virginia and the country as a whole above the interests of any individual or political party.” Like Director Clapper, you refered to “our constitutional system of three co-equal branches of government” and how it prevents “one branch from assuming too much authority without a challenge from the other branches of government.”

But that is only true if the members of each branch take action when needed. You are not. While the President is responsible for assaulting the integrity of the White House, you are responsible for the eroding integrity of Congress generally and the House Judiciary Committee specifically. That will be your legacy.


Email #47, Subject: “grabbing a woman by her genitals”?

When asked if “grabbing a woman by her genitals without consent” would be sexual assault, future attorney general Senator Sessions answered: “Certainly it would be.”  As you of course know President Trump was recorded bragging that he committed sexual assault in 2005. Over one dozen complainants came forward during his campaign to accuse him of other incidents of assault. Do you believe any of these accusations are true? Do you believe the President fabricated his own account? If President Trump is an assaulter, he is not the first in the White House. There are documents accusing President Kennedy of identical behavior. May I assume we agree that it was criminal behavior then, and that it is criminal behavior now? As Chair of the House Judiciary Committee, what are you doing in response to this array of accusations and evidence? May I trust that you consider sexual assault an impeachable offense?

Chris Gavaler