|© RICHARD CODOR|
The decision to make Donald Trump only the fourth president in American history to face impeachment -- as risky, difficult and belated as that may have been -- was the easy part. Deciding what the articles of impeachment should be -- and making the case that they are justified -- will be the hard part.
Anyone other than a diehard Trumpkin who is not convinced that the president needs to be impeached after the explosive Ukraine scandal -- and revelations that Trump, with the help of his fixer Rudy Giuliani, tried to extort a foreign leader and foe of Vladimir Putin to investigate his leading Democratic challenger for the presidency by holding back nearly $400 million in aid from this U.S. ally to fight Russian aggression, a crime that had its origins in discussions about whether to pardon former Trump campaign director Paul Manafort for his Russia-scandal related misdeeds -- needs to crawl back into their cave.
Yes, the Russia and Ukraine scandals are inextricably linked.
If the impeachment inquiry is limited only to the Ukraine scandal, which House Speaker Nancy Pelosi is counseling it should be, the House Intelligence Committee would take the lead in drafting articles of impeachment. If the inquiry is not limited to the Ukraine scandal, the House Judiciary Committee would take the lead.
Keeping in mind that impeachment is a political and not a legal process, and that events growing out of Trump's naked effort to bypass diplomatic, defense and intelligence channels to try to extort the Ukraine president into investigating his leading Democratic presidential challenger are developing at breakneck speed, Trump's lawyers are clinging to the problematic argument that he has done nothing wrong precisely because he is president, while Trump himself has falsely claimed that Article II of the Constitution gives him the right to do anything he wants.
Beyond hiring more defense lawyers and forming an Official Impeachment Defense Task Force to raise money for a prolonged impeachment battle, the rest of Trump's defense remains murky beyond the obvious -- deflecting, defying, lying and beating back demands already before federal judges that the White House stop stonewalling the various House investigations and produce documents and witnesses critical to those probes.
Impeachment takes those court cases to a new level and presents additional perils for Trump because under the rules of impeachment, House Democrats have unique and enhanced legal rights to extract information and then present their findings in public hearings.
"Trump's misconduct presents what the military calls a target-rich environment," write the legal analysts at Lawfare. "There's a huge range of activity that a reasonable member of Congress could in good conscience regard as impeachable. That said, it would be a very bad idea for the House to take the approach of throwing a lot of spaghetti at the wall and seeing what, if anything, sticks.
Presuming that the inquiry is not limited to the Ukraine scandal, those Lawfare aces -- Susan Hennessey, Quinta Jurecic and Benjamin Wittes -- write that House Democrats should concentrate on five major areas, each of which "could easily support" an article of impeachment.
(1.) Obstruction of justice and abuse of law enforcement.
This covers the president's efforts to impede Special Counsel Robert Mueller's Russia scandal investigation, James Comey's firing, attempting to dissuade witnesses, including Paul Manafort, Michael Flynn and Micael Cohen, from cooperating with federal authorities, and corruptly trying to persuade Attorney General Jeff Sessions to limit the scope of the investigation and to reverse his decision to recuse himself, the president's attempt to limit the investigation by pressuring Deputy Attorney General Rod Rosenstein to fire Mueller and have White House Counsel Don McGahn create a false record regarding his actions with respect to efforts to fire Mueller.
.(2.) Attempts to leverage the power of the presidency against political opponents.This includes the president's request to Sessions to reverse his recusal so that he could direct the Department of Justice to investigate and prosecute Hillary Clinton, and publicly accusing of crimes several individuals, including Comey, former FBI employees Peter Strzok and Lisa Page, Justice official Bruce Ohr and Ohr's wife, former CIA Director John Brennan, former Director of National Intelligence James Clapper and Clinton campaign manager John Podesta. The president also appeared to threaten prosecution of Cohen's wife and father-in-law, while the president and Giuliani repeatedly pressured Ukraine to investigate Democratic presidential candidate Joe Biden and his son Hunter.
(3.) Abuse of foreign policy and misuse of aid money.
This is the Ukraine scandal writ large with the president himself acknowledging that his July 25 phone conversation with Ukrainian President Volodymyr Zelensky concerned "all of the corruption taking place and largely the fact that we don't want our people like Vice President Biden and his son creating (sic) to the corruption already in the Ukraine," while Giuliani has said that he asked the Ukrainian government to look into the Biden family after initially denying it. Nearly $400 million in military aid was held up on the president's orders while this pressure was being exerted, an abuse of law enforcement powers for personal gain rather than public concern.
(4.) Efforts to obstruct congressional investigations.
This includes the president's decision to frustrate congressional oversight of his conduct in general by refusing to comply with subpoenas, overbroad and frequently frivolous claims of executive privilege and absolute immunity, all assaults on the very notion of congressional oversight. The relevant conduct includes, but is not limited to, the assertion of executive privilege over the testimony of Corey Lewandowski, absolute immunity over the testimony of former White House employees McGahn, Hope Hicks and Annie Donaldson, directing the IRS not to comply with federal law, interfering in efforts to compel third parties to comply with subpoenas regarding tax returns, directing the Office of the Director of National Intelligence to withhold the Ukraine whistleblower report, irregularities in the White House security clearance process, and the refusal of William Barr and Wilbur Ross to comply with congressional subpoenas to produce documents related to the addition of a citizenship question on the census.
(5.) Lying to the American public.
The president has outdone all of his predecessors in this area with The Washington Post "Fact Checker" database of presidential dissembling documenting over 12,000 "false or misleading statements" since he took office, which raises the question about whether the president has any obligation to tell the truth about anything -- even while advancing the proposition that the idea of "faithful" execution of the law implies no duty of candor at all.
Not surprisingly, four of the five major areas outlined above were incorporated into the articles of impeachment being drawn up against Richard Nixon before he resigned.
Notable in their absence from the Lawfare list are other areas of Trump's criminality and misconduct, including possible tax fraud in the years before he became a candidate, hush money payments he made to women with whom he had affairs as a candidate, multiple violations of the Constitution's emoluments clause as he has used his presidency to enrich family businesses, and disputes over border security, including his draconian family separation policy.
Those strands of spaghetti also might stick, but for impeachment to succeed, the articles of impeachment must be based on unambiguous conduct and evidence after Trump became president and can be more easily presented to the Senate for its judgment.
Yes, Republicans maintain an iron grip on the Senate, where a trial would be held on the articles of impeachment approved by the House. A two-thirds vote after trial would be necessary -- and seems implausible at this juncture -- to convict Trump and force his removal from office.
The times, to paraphrase American revolutionary Thomas Paine, finally have found us. We have to start somewhere, and drafting articles of impeachment is the place to start.