The Case for Impeaching Trump Read online

  The

  Case

  for

  Impeaching

  Trump

  Elizabeth

  holtzman

  New York

  The Case for Impeaching Trump

  Copyright © 2018 by Elizabeth Holtzman

  All rights reserved. No part of this book may be used or reproduced in any form or by any electronic or mechanical means, including information storage and retrieval systems, without permission in writing from the publisher, except by a reviewer who may quote brief passages in a review.

  Electronic edition published 2018 by RosettaBooks

  Cover design by Brian Peterson

  eISBN: 978-0-7953-5167-9

  www.RosettaBooks.com

  Dedication

  To Rebecca J. Folkman (1942–2017),

  friend extraordinare, from the fourth grade—and always

  Acknowledgements

  This book could not have been written without the hard work, exceptional intelligence, scholarship, and dedication of Victoria Bassetti. I am deeply in her debt. Thanks, too, go to Marshall Sonenshine, investment banker, lawyer, documentary film producer, and now literary agent, for making this book happen, and for his faith in me. I want to salute Common Cause, Karen Hobert Flynn, its president, and Stephen Spaulding, its Chief of Strategy, for first suggesting that I think seriously and systematically about impeachment, and for generously supporting my effort. I am grateful to my publisher, Tony Lyons, my editor, Michael Campbell, and my copy editor, Janet Byrne, for taking on this project. My friend Judith S. Ames and my brother Dr. Robert N. Holtzman were wonderful cheerleaders throughout. I am especially thankful to my friend, Jayme B. Hannay, for her unflagging encouragement and patience. Any mistakes in the book are my own.

  Contents

  Chapter 1: Impeachment

  Chapter 2: “Great and Dangerous Offenses”: The Standard for Impeachment

  Chapter 3: Failure to Protect the Integrity of Our Federal Election Process

  Chapter 4: Preventing, Obstructing, Impeding, and Abusing the Administration of Justice

  Chapter 5: Bribery and Emoluments

  Chapter 6: Other Possibly Impeachable Acts

  Conclusion

  Appendix I: Report on the History and Law of Impeachments

  Appendix II: The Articles of Impeachment against President Richard Nixon

  Appendix III: Articles I, II, and II of the US Constitution, Annotated

  Selected Sources

  1

  Impeachment

  When Donald Trump’s presidential election victory was announced in the early morning hours of November 9, 2016, like many Americans, I rubbed my eyes in disbelief and dismay. Two questions raced through my mind:

  What had become of America that a man so unfit, so small-minded, so mean-spirited could be elected? A man whose ethnic and racial bigotry had set the stage for his presidential run when he called Mexicans rapists and made racist birther attacks on President Barack Obama. Whose vulgarity and misogyny were laid bare in the Access Hollywood tape when he bragged about forcibly grabbing women by their genitals. Whose performance at presidential debates showed him not only flagrantly ill-informed, but manifestly unwilling to get informed.

  My second question was how much harm this man would do to America as its 45th president.

  I have my answer now to the latter, less than two years after the election. President Trump has damaged American democracy far more than I would have guessed. He has refused to protect our system of free elections from foreign interference; he has relentlessly attacked the administration of justice, in particular the investigation into a possible conspiracy with Russia regarding the 2016 presidential election, putting himself above the rule of law; he has failed to separate his personal business from the country’s, flouting the Constitution’s requirements; and he has violated the constitutional rights of the people in separating children from parents at the Southwest border without due process of law—and to cover up these misdeeds, he has systematically lied and assailed the press. These are “great and dangerous offenses” that the framers of our Constitution wanted to counteract and thwart. They provided a powerful remedy. Impeachment.

  Many tremble at the word, fearing how President Trump’s supporters will react to an impeachment inquiry, worrying that it will only further polarize an already deeply divided nation or that there will not be enough votes in the Senate to convict him even if the House of Representatives votes to impeach. Just calling for an inquiry will be viewed as a Democratic Party attack on the head of another party, a kind of coup d’état. It’s easy to find reasons to be anxious.

  I’m not afraid. As a junior congresswoman, the youngest ever elected at that time, I served on the House Judiciary Committee that voted to impeach President Richard Nixon for the high crimes and misdemeanors he committed in connection with the Watergate cover-up and other matters. Thorough, fair, and above all bipartisan, the committee acted on solid evidence presented in televised hearings that riveted the nation, handing us the blueprint for how impeachment can be successfully pursued today. In our 225 years of constitutional democracy, the Nixon impeachment process has proven to be the only presidential effort that worked. Though Nixon resigned—the only president ever to do so—two weeks after the committee’s impeachment vote, he did so to avoid the certainty of being impeached and removed from office. We became a better nation for having held the president accountable.

  All of which raises two further questions: Should we be considering the impeachment of President Donald J. Trump? Will we again become a better nation by pursuing that option? To answer, we need to set aside President Trump’s unremitting attacks on the environment, on our close allies, on almost every program that President Obama put into effect, including the Affordable Care Act, and any disagreements we have over policy, as well as any personal animus, and ascertain simply whether he has engaged in the kind of egregious conduct that would meet the constitutional standards for impeachment and removal from office.

  This means we have to focus sharply on his potentially impeachable offenses. In so doing, we will find it useful to compare them, when possible, to similar offenses by President Nixon found to be impeachable by the House Judiciary Committee in 1974. Here is a list of some of President Trump’s potentially impeachable offenses developed as of this writing:

  A possible interference with or obstruction of the administration of justice and an abuse of power. On May 9, 2017, Trump fired FBI Director James Comey, who was investigating both his national security adviser, Michael Flynn, and Russia’s connections to the Trump campaign in connection with influencing the 2016 presidential election. Two days later, President Trump admitted to NBC’s Lester Holt that Comey’s firing had to do with “the Russia thing”—in other words, President Trump acknowledged that he was trying to shut down the FBI investigation into his possible conspiracy with Russia. (Flynn has since pleaded guilty to lying to the FBI.)

  The Comey firing uncannily echoes Nixon’s firing of the special Watergate prosecutor for seeking highly damaging information about the president—a brazen defiance of the rule of law that triggered the start of impeachment proceedings against Nixon.

  A second possible interference with or obstruction of the administration of justice and an abuse of power. President Trump has persistently and publicly attacked those heading the Russia investigation, including special counsel Robert S. Mueller III and Deputy Attorney General Rod Rosenstein, and has repeatedly condemned Attorney General Jeff Sessions for recusing himself, suggesting that he wants to fire any and all of them in order to get control of the Russia investigation. (He actually did give an order to fire Mueller.)


  A failure to take care that the laws are faithfully executed, as required by the Constitution. To try to deflect public concern about his possible role in conspiring with Russia about the 2016 election and to undermine the legitimacy of the investigation into that matter, President Trump has persistently attacked the Russia investigation as a witch hunt and a hoax, even though thirty-four people either pleaded guilty or were indicted as a result of that investigation. The indictments included Russian agents who allegedly interfered with the 2016 election by manipulating social media, hacking into computers of the Democratic National Committee (DNC), tampering with election machinery in various states, and using other methods.

  Similar behavior by President Nixon became one of the grounds of the first article of impeachment against him. As part of the Watergate cover-up, Nixon was charged with making “false or misleading public statements for the purpose of deceiving the people of the United States.” This included Nixon’s claim that White House investigations had cleared everyone of any involvement with the break-in, for example, and that his aide H. R. Haldeman, who had perjured himself before the Senate Watergate Committee, had testified accurately.

  A second failure to take care that the laws are faithfully executed, as required by the Constitution. President Trump has refused to undertake his constitutionally mandated leadership role to protect the 2018 midterm elections from further interference by the Russian government, despite the paramount importance of ensuring honest elections in our democracy. In the absence of that protection, the Russians may renew the cyberattacks and other interference used against us in the 2016 election.

  An abuse of power. He has used the power of his office to remove or threaten to remove the security clearances of people who criticized him or who he believed were associated with the Russia investigation or could be possible witnesses against him. A historical equivalent is President Nixon’s creation of an “Enemies List” of anti–Vietnam War activists, whom he directed to be audited by the Internal Revenue Service (IRS) in retaliation for their political positions—actions that formed part of an article of impeachment.

  A second abuse of power. He approved a lawless, ethnically based, and infinitely cruel policy of separating children from parents at the Southwest border, depriving both children and parents of their constitutional rights and subjecting them to horrific mental anguish that may result in long-term psychological damage, a policy that the courts struck down.

  An assault on our democratic values. He has systematically lied to the American people about government policies and actions, crippling their ability to make sound judgments about the direction of their government.

  A violation of a specific constitutional prohibition. He has refused to separate himself from his business interests, which have received things of value from foreign and US governments, ranging from Chinese trademarks to payments for the use of his Washington hotel, suggesting that the presidency is open for business and that his personal business interests may influence his governmental decisions—all apparent violations of the emoluments clauses of the Constitution and possibly the ban on bribery as well. Though the House Judiciary Committee voted against an Article of Impeachment involving Nixon’s receipt of emoluments from the federal government, notably in the form of improvements to his California and Florida properties, President Trump’s business interests are far greater than Nixon’s, and President Trump could have tried to cure the problem of foreign emoluments by getting congressional approval, which he has steadfastly refused to do.

  An effort to undermine a core democratic institution. He has repeatedly attacked the media as the enemy of the people (a term used in the Stalinist purges against untold thousands of innocent people ultimately killed by the Soviet regime), encouraging Americans to disregard what they see and hear in the press as “fake news.” Seriously undermining the free press hampers the public’s right to know, which in itself hurts a democracy.

  Nixon also attacked the press. He illegally ordered the wiretapping of journalists and placed a number of them on his Enemies List, targeting them for harassing IRS audits. Both actions formed a basis for Nixon’s impeachment.

  Actually, the catalog of President Trump’s misdeeds goes on and on. The harm he has caused our democracy is great, and his misdeeds continue unabated. Resemblances to the impeachable conduct of Nixon persist. I have therefore come to the conclusion that an impeachment inquiry is not only justified under the Constitution of the United States, but imperative. In serving on the House Judiciary Committee during the Nixon proceedings, I acquired a niche expertise in impeachment that is, thankfully, not often needed. It is very much needed now, and I want to share it in this book.

  Impeachment—A Personal Perspective

  Forty-five years ago, impeachment wasn’t a word that resonated with most Americans, including me. It burrowed its way into the national consciousness, however, after President Nixon began his second term of office and the Watergate cover-up broke apart. For weeks in the spring of 1973, Americans were glued to their television sets as a succession of Nixon appointees appeared before the Senate committee investigating the break-in and subsequent cover-up, variously perjuring themselves or chronicling the details of what happened. When a special prosecutor was appointed to conduct a serious investigation and then Nixon fired him, the nation demanded action from Congress, and I then lived with the realities of impeachment daily for more than nine months.

  On June 17, 1972, five burglars broke into the Democratic National Committee headquarters at the Watergate complex in Washington, DC, attempting to plant bugs there. But a twenty-four-year-old security guard, Frank Wills, noticed something amiss in the building—adhesive tape that shouldn’t have been there, covering locks—and called the police at 1:47 a.m. The burglars were arrested, and an address book belonging to one of them, Bernard Barker, revealed something unexpected: the name of E. Howard Hunt, a former CIA operative working in the Nixon White House. The president was then in the final months of his run for reelection against Senator George McGovern.

  Keeping the connection to the break-in far, far from the president, his top aides and campaign officials became essential. Nixon was sure the break-in would prove little or no problem, as was made clear when the secret tapes of his Oval Office conversations were later made public. He claimed of the break-in: “Nothing loses an election. … [T]his damn thing now—it’s going to be forgotten. … Who the hell’s going to keep it alive?”

  President Nixon was right about the election—his popular vote margin of victory over Senator McGovern remains the largest in American presidential history—but he was way off base about “this damn thing.” Watergate wasn’t forgotten, and in less than two years, he would resign his office in disgrace because of it.

  The Watergate break-in made almost no impression on me at the time, even though my own campaign office in Brooklyn, New York, had been broken into by thugs around the same time and my campaign manager and another worker were beaten up, although luckily they didn’t sustain any serious injuries. My opponent in the Democratic primary, the incumbent Emanuel Celler, had occupied that congressional seat for just shy of a half century, serving roughly half that time as chair of the House Judiciary Committee. Celler vastly underestimated me, likening me to a “toothpick trying to topple the Washington Monument.” I won the primary, by a hair, and then the congressional seat—at thirty-one becoming the youngest woman ever to serve in Congress, a record I held for the next forty-two years. I had run on an anti-Vietnam War platform, defeating the powerful Brooklyn Democratic machine on a shoestring budget, and I swore to my constituents I would “stand up to the establishment,” whether Democrats or Republicans.

  I certainly had no inkling, in defeating Celler, of the form that standing up would take. Certainly, when the time came to ask for committee assignments, I made no attempt to take a seat on the Judiciary Committee, wanting to strike out in a different direction from the one my predecessor had taken. But the House leaders h
ad other ideas. They put me on the Judiciary Committee, and I was not pleased, to put it mildly. This was a sign of how effective the cover-up had been. At that time, there seemed no possibility of impeachment proceedings against Nixon. If there had been, I would never have gotten such a plum assignment.

  If only to help envision how such proceedings might materialize against President Trump, it’s worthwhile to look back at how the tide turned against Nixon. As it has been said, “History doesn’t repeat itself, but it often rhymes.” Of the key events that led to uncovering the White House connection to the Watergate break-in, the first came at the hands not of some Democratic firebrand, but a conservative Republican judge, John J. Sirica. Presiding at the trial of the Watergate burglars, Sirica smelled a rat and concluded that higher-ups may well have been involved in the break-in. When he publicly suggested that possibility, in February 1973, James McCord, a former US intelligence officer who was part of the Watergate burglary team, wrote a letter to Sirica, which was made public in mid-March. McCord highlighted that political pressure had been applied to the defendants, leading to perjury and the omission of the names of higher-ups involved.

  The second key event was the resignation, in the spring of 1973, of Attorney General Richard Kleindienst, who would later plead guilty to a criminal charge in connection with false testimony to the Senate. His resignation created an opening for a new attorney general, and when Nixon named Elliot Richardson to fill the position, the Senate Judiciary Committee saw an opportunity to mandate a serious criminal investigation into Watergate. The committee announced that it would not confirm Richardson unless he appointed a fully independent special prosecutor. Richardson agreed, and in May 1973, Archibald Cox, a Harvard Law School professor and former solicitor general, became special Watergate prosecutor. The special Watergate prosecutor’s office played a vital role in the Nixon impeachment by providing to the House Judiciary Committee, with court approval, a road map of factual evidence it had obtained during its investigation.