The House Judiciary Committee has quietly announced–in a recent court filing to obtain grand jury materials relating to the Mueller investigation–that it is “conducting an investigation to determine whether to recommend articles of impeachment” against Donald Trump. While this is certainly a welcome development for those who care about the future of our constitutional democracy, there is no indication that the Judiciary Committee or House leadership is approaching this investigation with the commitment or urgency required by our current constitutional crisis and required to enable the House of Representatives to consider and vote on articles of impeachment before we are well into the 2020 election season.
In the effort to obtain grand jury materials, the Committee has apparently agreed to a two-month briefing schedule that guarantees there will not be a decision before October. Even if the Committee prevails, the Trump administration will likely be able to delay many more months with appeals. And while the grand jury materials will presumably be interesting, the 450-page Mueller Report provides more than enough information to debate one or more articles of impeachment.
The Mueller Report describes a damning pattern of encouraging illegal foreign interference in the 2016 election, and then a coverup and obstruction scheme comprising at least ten separate instances of obstruction of justice. Trump’s ongoing obstruction and defiance of all congressional oversight investigations—including an apparent policy to fight every subpoena—is itself part of this pattern.
These are compelling topics for an impeachment inquiry, but the Committee should broaden its scope. During the campaign and virtually every day since he took office, Trump has engaged in a smorgasbord of impeachable offenses that go well beyond the Mueller report. Some of this conduct has already been established in separate judicial proceedings and much of it has occurred in public—from the president’s own mouth or Twitter feed.
Quite apart from the Mueller report, Trump is an unindicted co-conspirator in another criminal effort to influence the 2016 election. Trump’s former personal attorney, Michael Cohen, pleaded guilty to federal crimes for making illegal hush-money payments to influence the 2016 election. As Cohen told both a federal court and Congress, he made these illegal payments—for which he is currently serving time in federal prison—“in coordination with and at the direction of” Trump. This conduct warrants impeachment not just to protect the country from further abuses during the remainder of Trump’s term, but to protect the 2020 election. If Trump was willing to go to these criminal lengths to influence the 2016 election as a private citizen, President Trump, with vastly more power available to him, will do even worse. As George Mason asked at the Constitutional Convention: “Shall the man who has practiced corruption and by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?”
If the hallmark of Trump’s campaign was criminal schemes to influence the election, his presidency has been marked by misuse of power for his own political, personal, and financial interests. Since taking office, Trump has repeatedly pressured federal law enforcement agencies to investigate and prosecute political adversaries. He has undermined the freedom of press by repeatedly demonizing critical reporting as “fake news” or the Stalinesque “enemy of the people,” while seeking or threatening to use the levers of government power (such as criminal punishment, merger review, and even postal rates) against critical media. In a unanimous resolution passed last August, the U.S. Senate described Trump’s attacks on the press and stated that the Senate “condemns the attacks on the institution of the free press and views efforts to systematically undermine the credibility of the press as an attack on the democratic institutions of the United States.” If attacking the democratic institutions of the United States is not grounds for impeachment, it is hard to imagine what might be. Indeed, Congress has impeached three federal judges on charges categorized as “vindictive use of power,” and in 1974, the Judiciary Committee’s second article of impeachment against President Richard Nixon cited his “misuse of federal investigative agencies against political opponents.”
Trump’s escalating efforts to foment racial hostility, hatred and violence, likewise violate his constitutional duty to ensure the laws are faithfully executed and violate principles of equal protection and other constitutional rights. Trump is committing impeachable offenses when he urges government officials to violate the law, especially with violence; when he uses his position to sow racial hostility and encourage bigotry and violence; and when he enacts policies that have no constitutionally-legitimate justification but are rather motivated entirely by bigotry. The reasons to impeach for this conduct are not just the risk of encroaching tyranny. In the Federalist Papers, Alexander Hamilton wrote that impeachable offenses “relate chiefly to injuries done immediately to the society itself.” Trump’s race-baiting—no less than his obstruction of justice—causes ongoing injury to American society. Social scientists have quantified the “Trump Effect”: measurable increases in racial violence and hostility associated with Trump rhetoric. We are at the point in America where chanting the name of the president of the United States at an opposing high school basketball team is universally understood as a racial taunt.
Yet another hallmark of the Trump presidency is his misuse of position for self-enrichment. It is a national embarrassment that, in plain sight and in violation of the constitutional emoluments clauses, for two and a half years Trump has continued to own (through the thinnest of veneers) companies that do extensive business with supplicants from foreign governments, state and local governments, and corporate lobbies. The Framers made clear that violation of the emoluments clauses was impeachable and Congress has impeached numerous federal officials for misuse of office for personal gain.
If the Democratic leadership in the House is serious about holding Trump accountable, as they promised they would after taking the majority, the Judiciary Committee needs to expand its investigation to include the full range of Trump’s impeachable offenses. And it needs to act with a sense of urgency that matches their proclaimed outrage at Trump’s conduct. The Nixon impeachment inquiry took four months from the Watergate Special Prosecutor’s March 1974 release of materials to the Judiciary Committee to the July 1974 Committee vote on articles of impeachment. The Clinton impeachment inquiry took approximately three months from the September 1998 release of the Starr Report to the December 1998 Committee vote on articles of impeachment. It has already been more than three months since the Mueller Report was released; two more months is more than sufficient. The inquiry should continue through the August recess, the Committee should set an early October deadline for a final vote on whether to approve articles of impeachment to the full House, and the Committee should not permit obstruction or delay by the president or his allies to derail the schedule. The stakes are too high, and the hour is too late, for Congress to let Trump dictate the rules of his own impeachment.
Ben Clements is a former federal prosecutor, former chief legal counsel to the governor of Massachusetts, and the chairman of the board of Free Speech for People. Ron Fein is the legal director of Free Speech for People. They are coauthors, with John Bonifaz, of “The Constitution Demands It: The Case for the Impeachment of Donald Trump.”
This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at commentary@jurist.org
