The Case for Impeachment

Ask John Sipher and Steve Hall, two former CIA officials who served under Republican and Democratic administrations, and they’ll tell you that the June 9 meeting had all the hallmarks of a recruitment operation by Russian intelligence. Sipher and Hall posited that, once the Russians unearthed derogatory material by hacking into the emails of the Democratic National Committee, they “might then have seen an opportunity for a campaign to influence or disrupt the election.” When Trump Jr. responded with “I love it” to Goldstone’s “fishing” email, “the Russians might well have thought that they had found an inside source, an ally, a potential agent of influence on the election.”

In a standard pattern for Russian intelligence, they “employed a cover story—adoptions—to make it believable to the outside world that there was nothing amiss.” They used “cutouts, nonofficial Russians, for the actual meeting, enabling the Trump team to claim—truthfully—that there were no Russian government employees at the meeting and that it was just former business contacts of the Trump empire.” Thus, “when the Trump associates failed to do the right thing by informing the FBI, the Russians … knew what bait to use and had a plan to reel in the fish once it bit.” Sipher and Hall posit that while a Russian operation to disrupt American society and politics “is certainly plausible, it is not inconsistent with a much darker Russian goal: gaining an insider ally at the highest levels of the United States government.”12

There are yet more new revelations in the never-ending Russia story. In July 2016, when the Russia story first heated up, Donald Trump Sr. flatly declared, “I have nothing to do with Russia—for anything.” He said this despite his business partnerships with Russia-connected interests, his lengthy quest to develop Trump-branded ventures in Russia, and the Trump trademarks in Russia, six of which the Russian government renewed in 2016 at then-candidate Trump’s request. Recently, the press discovered that Trump Sr. sought to complete a real estate deal in Moscow while campaigning for president, even signing a nonbinding letter of consent to pursue it.13

Trump’s lawyer, Michael Cohen, and the ubiquitous Felix Sater were the prime movers of this ultimately failed deal—two of the three men who, according to the New York Times, presented a plan to lift the Ukrainian sanctions on Russia to then–National Security Advisor Michael Flynn. In a November 2015 email to Cohen, Sater bragged about the deal and how his ties to Putin would get Trump elected: “Michael I arranged for Ivanka to sit in Putins [sic] private chair at his desk and office in the Kremlin. I will get Putin on this program and we will get Donald elected … Buddy our boy can become President of the USA and we can engineer it. I will get all of Putins [sic] team to buy in on this [emphasis added].” It’s entirely possible that Sater was exaggerating his influence in the Kremlin; then again, the New York Times did report that Ivanka had indicated it was possible she’d sat in Mr. Putin’s chair during her Moscow trip in 2006, though she couldn’t recall. The eerie similarity, too, between Sater’s message to Cohen about Russians helping to elect Trump, and the message sent by Goldstone to Trump Jr. suggests that Sater’s claim may not have been the benign “puffery” that Cohen would later purport it to be.14

We have since learned that during this transition period and his White House tenure, Kushner engaged in several other dubious activities that merit investigation. Kushner secretly met with Russian Ambassador Sergey Kislyak to explore establishing a back channel between the Trump transition team and the Kremlin using Russian facilities. He met with the head of a Russian state bank that was under U.S. sanctions. He met with the King of Jordon to promote a deal on providing nuclear reactors to Middle Eastern nations that included both American and Russian business interests. Russia’s involvement had apparently diminished over time, but was not necessarily eliminated at the time of the meeting according to news reports. And we first learned through a Politico report on September 24, 2017, that in December 2016 Kushner set up a private email account that he used for some official government business—this after Trump had spent more than a year excoriating Clinton for her use of a private email server, even encouraging chants of “lock her up!” Predictably, Kushner’s lawyer said that these email communications were few and innocuous. According to the New York Times, at least five other close Trump advisers, including Ivanka Trump and former chief strategist Steve Bannon, “occasionally used private email addresses to discuss White House matters.” Again, this is not nearly the complete story. New reporting indicates that Kushner and Ivanka Trump had another private email account that received hundreds of White House emails.15

In July 2016, Manafort, in a series of email exchanges with an intermediary in Ukraine, offered privileged access to the Trump campaign to Russian oligarch Oleg Deripaska, whom I identified in April as a former business partner of Manafort’s and one of Putin’s closest confidants. “If he needs private briefings we can accommodate,” Manafort wrote. Manafort spokesman, Jason Maloni, said that the email exchanges were “innocuous” and involved only an attempt by Manafort to collect on a debt owed to him by Deripaska. But press reports indicate it was Deripaska who believed that Manafort owed him payments from a failed business deal, which Manafort implicitly verified, saying, “How do we use to get whole?”—apparently from his obligations to Deripaska. Reporting by NBC News indicates that Deripaska transmitted some $60 million in loans to companies linked to Manafort. The Trump team has set the Guinness world record for undisclosed but allegedly “innocuous” activities involving a foreign adversary.16

Like the June 9 meeting, this incident involving Manafort and Deripaska had the signs of a “classic intelligence operation being run by the Russians,” said Glenn Carle, who worked for more than twenty years in the Clandestine Services of the CIA. “Approach someone with access and influence, propose benign-seeming justifications, offer an enticement [like forgiving a debt], get benign-seeming favors done by the target in exchange (e.g., a meeting, a briefing, information that seems non-alarming), and use the meeting to entice down the primrose path.”17

Some scholars and journalists have asserted that President Trump could not be charged with treason even if he colluded with the Russians, or charged with misprision of treason if he failed to report collusion, saying that treason can be charged “only during a state of war.” Yet the American intelligence community has established that Russia did engage in acts of war against America during the 2016 presidential campaign. This was a modern form of warfare, carried out not with bullets and bombs, but via a cyberattack on the foundations of American democracy. According to the Gerasimov Doctrine, a 2013 paper written by General Valery Gerasimov, chief of the general staff of Russia’s Armed Forces, “the very ‘rules of war’ have changed. The role of nonmilitary means of achieving political and strategic goals has grown, and, in many cases, they have exceeded the power of force of weapons in their effectiveness.”18

If Trump did, in fact, collude with the Russians, he likely violated other federal criminal laws in addition to treason. These include, but may not be limited to, the Logan Act, which forbids private persons from negotiating with a foreign power; a federal election law that bans campaigns from knowingly soliciting or accepting anything of value from foreign nationals; and the Computer Fraud and Abuse Act, which prohibits any aiding or abetting of illegal computer hacking.

The Russian attack on the U.S. presidential campaign turned out to be more widespread and nefarious than first believed. After an inexplicable eight-month delay, Trump’s Department of Homeland Security revealed in September 2017 that the Russians sought to hack into the registration rolls of twenty-one states, and in some cases, may have succeeded. They also ran thousands of paid, targeted political ads on Facebook. Investigators are probing whether the targeting insights they acted on came from the Trump campaign. Kushner, who took the lead in developing the campaign’s social media operation, is on the record as having said, “I called somebody who works for one of the technology companies that I work with, and I had them give me a tutorial on how to use Facebook micro-targeting.” Special Counsel Mueller has obtained a warrant for Facebook records, meaning he’s convinced a federal judge that there exists probable cause of criminal violations.19

Beyond denying any collusion with the Russians, Trump also contradicted the findings of the American intelligence community—under both Obama’s and his presidency—with his claim that Russia did not meddle in the 2016 campaign on his behalf. On September 22, 2017, he said, “No, Russia did not help me, that I can tell you, OK?” Any claim to the contrary, he added, “was one great hoax.” This presidential denial carries fateful consequence for the country, in that the Trump administration is doing little or nothing to protect America from future attacks on its democracy by foreign adversaries. Rather than establishing an independent commission to recommend means for safeguarding our democracy, Trump instead set up a “fraud” commission to validate his bogus claim that between three and five million illegal voters denied him a popular vote victory.20

On October 30, 2017, Special Counsel Mueller unsealed indictments of Manafort and his associate Rick Gates, and a guilty plea by former Trump campaign foreign policy advisor George Papadopoulos. Emails from the Papadopoulos plea showed an openness by top campaign officials to collude with the Russians. His testimony establishes that Trump was present at a meeting when Papadopoulos proposed using his Russian connections to set up a Trump-Putin meeting. Papadopoulos further testified that in April 2016, one of his Russian contacts told him, “They [the Russians] have dirt on her;” “the Russians had emails of Clinton;” “they have thousands of emails.” Along with the Goldstone and Sater emails, this is the third time that Russians communicated to Trump associates intending to help Trump win the election.21

OBSTRUCTION OF JUSTICE

Among those who speak of scandal, there exists a popular mantra—“the cover-up is worse than the crime.” Catchy as it may sound, it’s a saying that risks trivializing the significance of possible collusion between Trump’s campaign and America’s Russian adversaries. It also plays into the hands of Trump and his backers, who’ve hinted that, even if collusion did transpire, its occurrence was not a serious matter. For example, referring to the June 9 meeting, Trump Sr. said, “Most people would have taken that meeting … it’s very standard.” If such conduct were ever to become standard, American democracy would suffer a grievous, perhaps even fatal blow.

Nonetheless, and based on publicly available information only, there is now at least as robust an obstruction of justice case against President Trump as there was against President Clinton. The difference is that, this time, it’s on a vastly more consequential matter than a consensual, personal affair. The cover-up began early in Trump’s term, when he delayed firing then–National Security Advisor Michael Flynn for eighteen days after the Acting Attorney General had warned that the Russians likely compromised Flynn. Since vacating his position, Flynn has said that he has “a story to tell,” a story that Trump likely hopes to keep untold.

To derail the House Intelligence Committee’s Russia investigation, Trump’s White House worked with Committee Chairman Devin Nunes, who served on Trump’s transition team. In private, Trump reportedly asked CIA Director Mike Pompeo to influence the FBI into backing off the Russia investigation. Former FBI Director James Comey testified under oath that Trump asked him for personal loyalty and to “let go” of the Flynn investigation. Trump then fired Comey, only admitting at a later point that he’d had “Russia on his mind” in doing so. He has since engaged in a campaign to discredit Comey, even breaching the separation between the White House and Justice Department by having his press secretary recommend that federal prosecutors consider indicting Comey—a potential witness against Trump—for using an FBI computer to type personal memos about these exchanges with the president. And, as already touched upon, Trump drafted or participated in drafting the misleading response to the June 9 meeting.22

CONFLICTS OF INTEREST

Trump has not merely failed to divest himself from his domestic and foreign business interests, he has enmeshed himself even further in arguably unconstitutional conflicts of interest. In likely violation of the Constitution’s Foreign Emoluments Clause, in June 2017 Trump gained preliminary approval from China for nine potentially lucrative Trump trademarks that it had previously rejected. The Trump International Hotel in Washington, D.C., has become a magnet for foreign interests, who rent rooms and hold events on its grounds. Trump has claimed that he will hand over to the U.S. Treasury any hotel profits from these foreign governments, but he failed to indicate how he will calculate revenue above costs.23

In violation of Trump’s pledge to launch no new foreign ventures, his organization has partnered with billionaire Hussain Sajwani to develop the Trump Estates Park Residences in Dubai, United Arab Emirates. Ongoing projects also enmesh Trump in potentially serious conflicts of interest. In Azerbaijan, one of the world’s most corrupt countries, Trump has entered into a development deal with Anar Mammadov, the son of the nation’s transportation minister. A Trump residential building and an office tower, funded by unknown investors whose money came through banks in Cyprus and Mauritius, is scheduled for completion during the next five years in a suburb of New Delhi, India. In Indonesia, Trump has launched two projects: a resort near Jakarta, and Trump International Hotel and Tower Bali. Trump’s partner, the billionaire Hary Tanoesoedibjo, has founded a new political party in his country and expressed an interest in emulating Trump by running for president of his nation. In Scotland, meanwhile, Trump’s company is embroiled in a permit dispute with the environmental agency over the development of a second golf course near Aberdeen. These and other foreign ventures likely violate the constitution, whether through the direct or indirect involvement of foreign officials and their patronage of Trump properties, or through their granting of discretionary permits, tax breaks, complementary infrastructure development, regulatory easements, and other concessions.24

A lawsuit, filed by the attorneys general of the District of Columbia and Maryland in June 2017, has called attention to President Trump’s violations of the Constitution’s Domestic Emoluments Clause. Recall, though, that the courts have no power to order impeachment, that authority rests solely with the U.S. House. According to Article 2, Section 1, Clause 7 of the Constitution, known as the Domestic Emoluments Clause, “The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them (emphasis added).” This means that, beyond his salary, the president cannot receive anything of value from the federal government or any state or local government.

The framers advisedly applied this prohibition only to the president. As Alexander Hamilton explained, the Domestic Emoluments Clause ensures that the federal and other governments “can neither weaken his fortitude by operating on his necessities, nor corrupt his integrity by appealing to his avarice.” Like the Foreign Emoluments Clause, its prohibition is absolute, with no quid pro quo specified.25

As president, Donald Trump has received and continues to receive unconstitutional domestic emoluments. According to an investigation by Reuters, state and municipal pension funds in at least seven states have made substantial investments in the CIM Group, and pay the Group a few million dollars in quarterly fees to manage those investments, including the controversial Trump SoHo Hotel Condominium in Manhattan. In exchange for managing and marketing the property, says Reuters, “In 2015 and the first five months of 2016, Trump International Hotels Management LLC drew at least $3.1 million from the SoHo, and Trump received $3.3 million in income from the hotel management company, hotel records and campaign filings show.” Thus, “it’s a payment chain from state pension funds to President Trump,” said Jed Shugerman, Professor of Law at Fordham University. “This looks like an emolument to me.”26

Trump built his business empire on concessions from local governments, and at least one of these emoluments, a New York City tax abatement for his Grand Hyatt Hotel, has persisted through his presidency. An analysis by the New York City Finance Department conducted for the New York Times found that in 2016, the tax break, which continues for another four years, netted Trump $17.8 million. That’s just one example of the tax breaks and lease arrangements from government that pose a constitutional violation. Trump has an application pending for a $32 million historic preservation tax credit for his Trump International Hotel in D.C., which he built on the bones of the famous Old Post Office building. The National Park Service, a federal agency under Trump’s control, must give final approval for this application.27

Trump likely received another form of federal emolument when his appointed head of the General Services Administration (GSA) approved his continuing hold on a lease to the Old Post Office property, thereby maintaining his privilege to own, operate, and profit from the hotel. Yet the terms of the lease state, “No member or delegate to Congress, or elected official of the Government of the United States or the Government of the District of Columbia, shall be admitted to any share or part of this Lease, or to any benefit that may arise therefrom.” Designed to avoid conflicts of interest between the GSA, which administers the lease, and other government officials including the president, the provision is not gratuitous. In what could be viewed as a strategic maneuver, Trump appointed a former member of his transition team as the GSA’s Administrator. This Administrator then approved the lease arrangement, which effectively rendered the president the simultaneous tenant and landlord of the property.28

When it comes to Trump’s conflicts with the Domestic Emolument Clause, some violations—like the direct payments made by the federal government to Trump-branded businesses—are especially glaring. The federal government has likely spent substantial sums at the Trump-branded golf resorts, for instance, that Trump has visited many times since his inauguration. The exact amount spent is unknown, because the administration has not responded to a request by congressional Democrats for an itemized accounting. In another textbook case of the types of conflict that framers sought to avoid, the Secret Service rented out space in Trump Tower. They’ve since withdrawn in early July, but only because of a dispute with management over the terms of their lease.29

A CRIME AGAINST HUMANITY

Scientists have long warned that climate change poses a threat to humanity’s well-being and survival, and yet there are those who still insist on denying it. “There is no morally responsible way to downplay the dangers that negligent policies—expected to accelerate human-caused climate change—pose to humankind,” said Lawrence Torcello, an associate professor of moral and political philosophy at the University of Rochester. “There can be no greater crime against humanity than the foreseeable, and methodical, destruction of conditions that make human life possible … We will search in vain for a better reason to depose elected officials.”30

I am not advocating impeachment over a policy difference, but rather saying that impeachment should take place only upon proof that President Trump’s retreat on climate change threatens the well-being and survival of humanity. As I previously explained, crimes against the environment as a form of genocide are well recognized in international law. Hurricanes Harvey, Irma, and Maria have inarguably brought the tragedies of climate change home to the American people, and yet, in their wakes, the statements issued by Trump have been contradictory. “Hurricane Irma is of epic proportion, perhaps bigger than we have ever seen,” Trump tweeted. But when asked to comment about recent storms and climate change, Trump contradicted himself, saying, “We’ve had bigger storms than this,” referring vaguely to storms that occurred in the 1930s and ’40s. Trump is “just not correct,” said meteorology professor Kerry Andrew Emanuel, an authority on hurricanes. Harvey soaked Texas and Louisiana with a record 51 inches of rainfall, and Irma was the most sustained Category 5 hurricane on record. The bill for these storms may top $200 billion, far exceeding the cost of any two storms in U.S. history. Following closely in their wake, Maria obliterated Puerto Rico and shattered historical precedent in the process. Never in recorded history had three Atlantic hurricanes of at least Category 4 force made landfall in a single year—until 2017.31

It would be false to claim that climate change creates hurricanes, but warmer water temperatures do strengthen hurricanes, thereby increasing their intensity, and rising sea levels make for more severe storm surges. This toxic mix is a recipe for the perfect catastrophic storm. “The most dangerous myth that we have bought into as a society is not the myth that climate isn’t changing or that humans aren’t responsible,” said Katharine Hayhoe, director of the Climate Science Center at Texas Tech University. “It’s the myth that ‘It doesn’t matter to me.’ And that’s why this is absolutely the time to be talking about the way climate change amplifies or exacerbates these natural events. This brings it home.”32

And the effects of climate change are not limited to destructive storms; they’ve also given us droughts, heat waves, record floods, and runaway wildfires like those that have claimed dozens of lives in California. New studies carry dire warnings for our future. A September 2017 study by NASA researchers found that warming Antarctica waters recently led to a tripling of the amount of ice loss. The greater the ice melt, the more that sea levels will rise. A July 2017 study by the Union of Concerned Scientists warned that 90 American communities already face chronic flooding and that this number will likely rise to 170 by 2035 and to 490 by 2100. At century’s end, chronic flooding will afflict “40 percent of all oceanfront communities on the East and Gulf Coast,” including Cambridge, Massachusetts; Oakland, California; Miami and St. Petersburg, Florida; and four of the five boroughs of New York City. If, however, the world met the emission reduction goals of the Paris Accord, which Trump has repudiated, the great majority of U.S. communities (380 of 490) could avoid this grim, watery fate.33

In June 2017, Trump followed through on his promise to withdraw the United States from the Paris climate accord. Rumors circulating in September that Trump might be reconsidering his decision sparked hope among the environmentally minded, but the White House was quick to deny them. Climate Advisers has quantified the “Trump Effect” from his retreat on climate change as equaling by 2025 an enormous annual increase of nearly half a gigaton of new greenhouse gas pollution.34

ABUSE OF POWER

In a 1987 decision, the Supreme Court recognized that judicial contempt vindicated the authority of the courts and protected the separation of powers: “Thus, although proceedings in response to out-of-court contempts are sufficiently criminal in nature to warrant the imposition of many procedural protections, this does not mean that their prosecution can be undertaken only by the Executive Branch, and it should not obscure the fact that the limited purpose of such proceedings is to vindicate judicial authority.”35 Since assuming office, Trump has exploited his presidential power in flagrant disregard for this concern. Recall the contentious case of former Arizona sheriff Joe Arpaio, who was found guilty by a federal judge of criminal contempt for disregarding a court order to cease targeting and detaining suspected undocumented immigrants based on racial profiling—a violation of the constitutional rights of Hispanics. Trump asked his Justice Department to dismiss the case and then pardoned Arpaio, prior to sentencing and without the standard Justice Department review. In the history of our nation, no other president has ever fully pardoned someone convicted of criminal contempt prior to sentencing.36