History’s Rhyme, Part 2a: ‘Abuse of Power’ Sounds So Familiar

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[NB: Check the byline, thanks! /~Rayne]

In a previous post I looked at the first of three Articles of Impeachment passed by Congress in 1974 against then-president Richard Nixon and suggested a parallel between Trump’s presidential acts and Nixon’s.

There had been five articles drafted; only the first three were approved by the 93rd Congress. Of them one article focused on Abuse of Power — acts which may be malfeasance and/or unlawful, as well as acts which may not have been strictly unlawful/illegal but were unethical and a breach of the trust the public places in the executive and a violation of the executive’s oath of office to take care the laws are faithfully executed.

You can read the second article at this link; now compare it to a theoretical article of impeachment which could be drafted against Trump today.

Article 2: Abuse of Power

Using the powers of the office of President of the United States, Donald J. Trump, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in disregard of his constitutional duty to take care that the laws be faithfully executed, has repeatedly engaged in conduct violating the constitutional rights of citizens, impeding the due and proper administration of justice and the conduct of lawful inquiries, or contravening the laws governing agencies of the executive branch and the purposes of these agencies.

This conduct has included one or more of the following:

1. He has violated the Emoluments Clause of the Constitution which provides 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.” Donald J. Trump, has a financial interest in vast business holdings around the world that engage in dealings with foreign governments and receive benefits from those governments. He has refused to divest himself of those interests and inherent conflicts of interest. He has accepted “Emolument[s]” from “foreign State[s]” while holding the office of President of the United States. He has accepted numerous benefits from foreign states without first seeking or obtaining congressional approval as specified by the Emoluments Clause, and further maintains that no Congressional approval is required. He has rejected Congress’s Article I authority by refusing to seek its consent.

2. He misused the Secret Service by interfering in their ability to perform their duties with regard to protecting the presidency, refusing them necessary access to public and private facilities where foreign nationals visit frequently. He has interfered with the Secret Service’s ability to operate, draining their budget by deploying them excessively at his private business facilities when not executing his presidential duties.

3. He has, acting personally and or through his subordinates and agents, in violation or disregard of the Presidential Records Act of 1978 (PRA), concealed or destroyed presidential records, or prevented presidential records from being made appropriate to the execution of his office. He has terminated the practice of publishing public summaries of presidential phone calls with world leaders thereby evading creation of presidential records. He has ignored warnings of the National Archives to comply with the PRA.

4. He has, acting personally and through his subordinates and agents, in violation or disregard of the constitutional rights of citizens and the human rights of visiting foreign nationals, unilaterally drafted, issued without adequate prior legal review, and permitted to be maintained Executive Orders 13769 and 13780, violating the First Amendment’s Establishment Clause, the Fifth Amendment’s Equal Protection, Substantive Due Process, and Procedural Due Process clauses, the Immigration and Nationality Act, the Religious Freedom Restoration Act, and violating in both substance and procedure the Administrative Procedure Act in the process of discriminating against persons both citizens and foreign nationals on the basis of religion and national origin by illegal detention and refusal of their admittance to this country.

5. In disregard of the rule of law: he knowingly misused the executive power by interfering with agencies of the executive branch, including the Department of Justice and the Department of Homeland Security, in violation of his duty to take care that the laws by faithfully executed. He rejected the expert advice of then Deputy Attorney General as to the unlawfulness of his Executive Order 13769. He has authorized Department of Homeland Security personnel to commit illegal acts against asylum seekers and refugees. He interfered with the Department of Justice in its investigation into interference with the 2016 election by repeated disparagement.

6. He has retaliated against federal employees, including but not limited to the Attorney General, the Deputy Attorney General, the Director of the Federal Bureau of Investigation, the Director of Secret Service, and National Archives personnel, disparaging, harassing, and or firing them without adequate legal cause for conducting their lawful duties. He has ordered other federal personnel to disparage and fire federal personnel without adequate legal cause for conducting their lawful duties. He has maliciously attempted to interfere with federal employees’ ability to draw their rightful benefits.

7. He misused the Department of Justice, in violation or disregard of the constitutional rights of citizens, by tacitly directing or implicitly authorizing the Attorney General to conduct or continue investigations for purposes unrelated to national security, the enforcement of laws, or any other lawful function of his office. He has expressed repeatedly his intent to use the Department of Justice and U.S. intelligence agencies for the purposes of punishing political opponents. He has failed to take care that the laws were faithfully executed by failing to act when he knew or had reason to know that his close subordinates endeavored to investigate political opponents.

8. He has, acting personally and through his subordinates and agents, in violation or disregard of the constitutional rights of press under the First Amendment and of citizens under the Fifth Amendment, authorized and permitted the indefinite revocation of White House press credentials for arbitrary and non-compelling reasons, including punishment for and suppression of perceived criticism. He has frequently undermined the First Amendment rights of the press by calling them “the enemy of the people.”

9. He has, acting personally and through his subordinates and agents, in violation or disregard of the Federal Advisory Committee Act (FACA), allowed the Presidential Advisory Commission on Election Integrity (PACEI) to meet without public notice; without making PACEI meetings open to the public; and without timely notice in the Federal Register. He has failed to ensure PACEI operated so that any of its “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by” the PACEI were “available for public inspection.” He has further failed to ensure that the PACEI was fairly balanced and free of inappropriate influence as required under the FACA to ensure public accountability.  Based on spurious claims of voter fraud and without adequate data security in place, he has ordered the PACEI to obtain private voter data from the fifty states for the purposes of a voter roll purge using questionable and opaque methods.

[ — TO BE CONTINUED — ]

In all of this, Donald J. Trump has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States.

Wherefore Donald J. Trump, by such conduct, warrants impeachment and trial, and removal from office.

Article 2 against Nixon only contained five subjects. How quaint; it’s like Tricky Dick wasn’t even trying.

In contrast Trump might have racked up a new subject every other month in office to add to this list. I have at least six more subjects to add in a followup post.

After I finish the Abuses of Power I plan to look at Article 3: Contempt of Congress — which is very nearly writing itself — and an Article 4: Violation of Treaties including those covering refugees and international human rights. There could be an Article 5 covering action in Yemen and other foreign policy and military failures.

I still don’t know if this shouldn’t include his ridiculously expensive golf. Assuming he’s not removed by the time his term is up in early January 2021, and assuming he continues his current rate of play, Trump will have burned through nearly $200,000,000 taxpayer dollars, a considerable chunk of which will go into his pocket for golf cart fees alone. What a parasite; imagine how many teachers could have received pay increases with that, or how many Pell Grant scholarships that could have funded.

Or how much of his ‘fucken wall‘ that could have bought.

This is an open thread. Be sure to let me know what other topics you think should be added under this Article 2: Abuse of Power.

History’s Rhyme: Nixon’s Articles of Impeachment

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[NB: Byline check, please. /~Rayne]

History, as they say, doesn’t repeat itself, but it rhymes.

By now many of us have heard or read discussions comparing the actions of Trump and his administration with those of Richard Nixon — actions for which Nixon was nearly impeached.

(Bill Clinton’s impeachment surfaces only as an example of what a joke impeachment can be when a partisan hack investigator is intent on creating a mountain out of a consensual blowjob molehill.)

Though he resigned before the House could vote on them, Articles of Impeachment were drafted against Nixon. The first three of five had been passed by the House Judiciary Committee:

Article I: Obstruction of Justice

Article II: Abuse of Power

Article III: Contempt of Congress

Article IV: Cambodia bombing

Article V: Failure to pay taxes

Article I outlined a list of obstructive behaviors Nixon engaged in the lead up to and during the Watergate scandal. They read like a list of indictable offenses with the exception of an abuse of power in seeking the CIA’s efforts to interfere with the FBI.

Article II outlined Nixon’s abuses of power; the behaviors were unethical.

Article III charged Nixon with contempt after he refused to cooperate with Congress’s investigation into Watergate.

The third article has drawn the most reconsideration in the last 24-48 hours after Trump announced “We’re fighting all the subpoenas,” saying the administration would not comply with House committees’ requests for witnesses and documents.

While Trump hasn’t an unauthorized bombing of Cambodia under his belt addressed by the fourth article in 1974, he does have ongoing violations of international treaties for which he should answer, and for which the Republicans in Congress should be held accountable by a vote on an article about crimes against humanity.

We don’t yet know if a fifth article related to taxes may yet be needed but we shouldn’t be surprised if the tax returns Trump is so desperate to hide do not provide grounds for one.

What a lot of familiar rhyming. One might wonder what Articles of impeachment would look like against Trump. Let’s take a look at a possible Article I.

~ ~ ~

Article 1

RESOLVED, That Donald J. Trump, President of the United States, is impeached for high crimes and misdemeanours, and that the following articles of impeachment to be exhibited to the Senate:

ARTICLE 1

In his conduct of the office of President of the United States, Donald J. Trump, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has prevented, obstructed, and impeded the administration of justice, in that:

Beginning March 2016, and prior thereto, agents of Russia knowingly accessed computers without authorization belonging to or used by U.S. presidential campaign of Hillary Clinton and volunteers (“Clinton Campaign”), of the Democratic Congressional Campaign Committee (“DCCC”), and the Democratic National Committee (“DNC”) in Washington, District of Columbia, for the purpose of securing political intelligence.

In April 2016, Conspirators including agents of Russia and persons know and unknown to a Grand Jury began to plan the release of materials stolen from the Clinton Campaign, DCCC, and DNC.

Beginning in or around June 2016, the Conspirators staged and released stolen materials. The Conspirators continued their U.S. election-interference operations through in or around November 2016 with the intent to support the campaign of Donald J. Trump and deter the Clinton Campaign.

Subsequent thereto, Donald J. Trump, using the powers of his high office, engaged personally and through his close subordinates and agents, in a course of conduct or plan designed to delay, impede, and obstruct the investigation of such unauthorized access and use of stolen materials; to cover up, conceal and protect those responsible; and to conceal the existence and scope of other unlawful covert activities.

The means used to implement this course of conduct or plan included one or more of the following:

1. making false or misleading statements to lawfully authorized investigative officers and employees of the United States;
2. withholding relevant and material evidence or information from lawfully authorized investigative officers and employees of the United States;
3. approving, condoning, acquiescing in, and counseling witnesses with respect to the giving of false or misleading statements to lawfully authorized investigative officers and employees of the United States and false or misleading testimony in duly instituted judicial and congressional proceedings;
4. interfering or endeavoring to interfere with the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation, the Office of Special Counsel, and Congressional Committees;
5. approving, condoning, and acquiescing in, the surreptitious payment of substantial sums of money for the purpose of obtaining the silence or influencing the testimony of witnesses, potential witnesses or individuals;
6. endeavoring to misuse the Department of Justice, the Office of the Director of National Intelligence, and the Office of White House Counsel of the United States;
7. disseminating information received from officers of the Department of Justice of the United States to subjects of investigations conducted by lawfully authorized investigative officers and employees of the United States, for the purpose of aiding and assisting such subjects in their attempts to avoid criminal liability;**
8. making or causing to be made false or misleading public statements for the purpose of deceiving the people of the United States into believing that a thorough and complete investigation had been conducted with respect to allegations of misconduct on the part of personnel of the Presidential Campaign and on the part of the personnel of the executive branch of the United States, and that there was no involvement of such personnel in such misconduct: or
9. endeavoring to cause prospective defendants, and individuals duly tried and convicted, to expect favored treatment and consideration in return for their silence or false testimony, or rewarding individuals for their silence or false testimony.

In all of this, Donald J. Trump has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States.

Wherefore Donald J. Trump, by such conduct, warrants impeachment and trial, and removal from office.

_________

** Did Trump share/receive material through the Joint Defense Agreement not for the purposes of defense but to obstruct the Special Counsel’s investigation?

~ ~ ~

Well now…the potential parallels are quite striking. Because there’s so much to ponder in this one possible Article, I’ll leave evaluation of other possible Articles to another post to follow.

What do you think? Is there more which an Article focused on obstruction might include? Is there wording which needs revision based on what we now know?

This is an open thread.

Do the Right Thing: Break Some Eggs and Impeach

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[NB: Check the byline. This piece may not reflect the opinions of other emptywheel contributors. /~Rayne]

There’ve been a lot of eggs cracked today. Not all of the eggs in need of cracking came in pretty dyed shells.

Like the oeuvre floating around out there claiming impeachment is bad for the country. (I’m looking at you, Tumulty.)

There’s really no question about what must be done. There’s only a fight against spin protecting an un-indicted co-conspirator, or worse. Sadly, some of the spin comes from the left and it needs to be smashed right now.

But why impeach? they ask.

Because it’s the right thing to do when a law enforcement investigation reveals a pattern of unlawful behavior.

Because it’s the right thing to do when the president systematically engages in abuse of power and unethical behavior, causing states and non-governmental groups alike to sue to protect human rights.

Because it’s the right thing to do when the president breaks his oath of office to preserve, protect and defend the Constitution of the United States.

Because it’s the right thing to do when the president fails to take care that the laws be faithfully executed.

Because it’s the necessary thing to do when the president’s incompetence or bigotry results in the deaths of thousands of American citizens without so much as an apology.

Because it’s the right thing to do when the president permits and/or encourages dangerous deviations — some in secret — from national security policy without debate, advice, and consent by Congress.

Because it’s the right thing to do when the executive usurps co-equal branches’ power to check the executive.

Because failure to do so yields the co-equal power of Congress to the executive for the worst of reasons — because it’s too much trouble, timed inconveniently, unpopular.

Because failure to do assures future unethical presidents, they, too, need not worry they will be held to account by the branch of government charged with doing so; they’ll feel protected, insulated from rebuke and punishment.

Because failure to do so assures a certain class of person they are above the law while telling the average citizen they belong to a second and lower class.

Because failing to do so sends a message to foreign powers that tampering with our elections will go unchecked; a mere censure will only enrage a malignant narcissistic executive while doing nothing to deter hostile foreign actors.

Because we are a nation of laws, and the law provides for the rebuke and removal of an executive guilty of high crimes and misdemeanors, including unlawful orders, bad faith execution, unethical behavior, and abuse of office.

Because we must lead the future by example, demonstrating the exercise of oversight powers which include impeachment of a failed executive even when a country is divided by popular opinion.

There are far too many constructive reasons why we should impeach the executive; the risk from failing to attempt impeachment is far greater, considering the hollowing out of government and undermining of long-term policy continuing apace. The common good demands it.

Do we proceed directly to impeachment? This is a matter of conjecture — I believe we need to investigate the gaps in the Special Counsel’s report, including counterintelligence, so that we address each item in full view of the public with the exception of classified matters. The executive must be fully accountable to the people; he governs only with their consent which is already thin based on his loss of the popular vote.

Will investigative and impeachment hearings get in the way of legislative business? No. Congress has investigative hearings all the time in addition to legislative business. The legislative work to date has been piling up at the Senate Majority Leader Mitch McConnell’s desk because he is obstructing House Democrats by gatekeeping. Will any less legislation be passed by the Senate if the House dedicates any more time to investigative hearings? No, thanks to McConnell.

Read the Special Counsel’s report for yourself. Ask yourself if what you read represents the combined work of a candidate and president and his campaign and administration who are truly intent on serving the best interests of this entire country. Were these individuals willing to set their personal interests aside and work toward a more perfect union, establishing Justice, insuring domestic tranquility, providing for the common defense, promoting the general welfare, and securing the blessings of liberty for all?

Or were they working for themselves and personal or familial enrichment, for their personal glory and entitlement, and for the benefit of some other non-U.S. entities to our likely detriment?

Begin the impeachment process. Let’s break some eggs.

~ ~ ~
A happy Easter to those of you who observe the holiday. Hope that those of you who observed Passover were able to do so with friends and loved ones.

This is an open thread.