Impeachment Week in Review: Several Significant Developments

There were several significant impeachment developments during the week -- including the publication of To End a Presidency – a new book on impeachment by Harvard Law Professor Lawrence Tribe and Joshua Matz.  That book features both an expansive interpretation of the phrase “high Crimes and Misdemeanors” – and words of caution about the inherent danger of impeaching a President.  The Mueller Investigation moved forward with a ruling that charges against former Trump campaign Chairman Paul Manafort -- money laundering and working as an unregistered foreign agent – could go forward.  The NY Times reports on possible collusion between the Trump campaign and “two wealthy Arab princes” – implicating countries other than Russia.  An associate of long-time political operative and Trump advisor Roger Stone received two grand jury subpoenas; Stone told NBC News he is “prepared” to be indicted.  Rudy Giuliani, President Trump’s new legal counsel is promoting the idea that the obstruction investigation should “wrap up” by Labor Day.  Meanwhile, the Trump Administration remains unsteadily on course towards a North Korea summit that may or may not happen – and the country remains on course towards mid-term elections.  Americans remain closely divided on the issue of impeachment, with a slight plurality inclined to vote against candidates advocating President Trump’s impeachment.  There was talk of China “adjusting” the trade deficit with the U.S. by up to $200 billion, but no firm agreement has emerged, and none appears likely.  However, the recent talk points to a de-escalation and possible postponement of what had been a brewing trade war.  In reaction to this calming wind, the Dow Jones index had another relatively stable week.  The economy is proceeding full speed ahead – but with warnings from Goldman Sachs about the federal debt and the danger that the cost of borrowing may exceed the rate of economic growth.

The Mueller Investigation

Bloomberg reports: "Special Counsel Robert Mueller prevailed Tuesday when a judge turned down a request by former Trump campaign chairman Paul Manafort to dismiss a federal indictment accusing him of money laundering and working as an unregistered foreign agent."  A trial is scheduled for September – and thus would certainly be in the news during the fall campaign.  The ruling generally supports a broader understanding of the scope of Mueller's investigation, and is consistent with the position of Mueller's direct-report boss, Deputy Attorney General Rod Rosenstein.  Manafort faces the possibility of years if not decades in prison -- and is therefore seen as having a strong incentive to cooperate with Mueller.

The NY Times reports on a nexus involving President Trump's son, Donald Trump Jr., an "Israeli specialist in social media manipulation," Education Secretary Betsy DeVos' brother, Republican donor and former head of Blackwater Security Erik Prince, and George Nader, described as "an emissary for two wealthy Arab princes."  The Times reports the four met at Trump Tower on August 3rd, 2016; "The meeting was convened primarily to offer help to the Trump team, and it forged relationships between the men and Trump insiders that would develop over the coming months — past the election and well into President Trump’s first year in office, according to several people with knowledge of their encounters...  Nader, told Donald Trump Jr. that the princes who led Saudi Arabia and the United Arab Emirates were eager to help his father win election as president."  The Times continues: "It is unclear whether such a proposal was executed, and the details of who commissioned it remain in dispute. But Donald Trump Jr. responded approvingly, according to a person with knowledge of the meeting, and after those initial offers of help, Mr. Nader was quickly embraced as a close ally by Trump campaign advisers — meeting frequently with Jared Kushner, Mr. Trump’s son-in-law, and Michael T. Flynn, who became the president’s first national security adviser... The meetings, which have not been reported previously, are the first indication that countries other than Russia may have offered assistance to the Trump campaign in the months before the presidential election. The interactions are a focus of the investigation by Robert S. Mueller III, the special counsel, who was originally tasked with examining possible Trump campaign coordination with Russia in the election." Developing...

The New York Post reports President Trump's attorney, Rudy Giuliani, is promoting the idea that Special Counsel Robert Mueller should "wrap up" his probe into President Trump's possible Obstruction of Justice by September 1st, to avoid improperly influencing the mid-term elections this coming November.  Giuliani cited former FBI Director James Comey's June announcement ending the investigation of Hillary Clinton's e-mails as an example of allowing enough time for the news to be absorbed without being an "end-of-the-campaign" story.  However, when Comey later decided to announce in late October 2016 that the Clinton investigation had been re-opened, that story may have influenced the election result.  Giuliani said he had received a timeline from Mueller in connection with discussions on the possibility Trump would agree to answer questions from Mueller.  Mueller has made no statement as to when all or part of his investigation may be finished.

US News reports that Special Counsel Robert Mueller has issued grand jury subpoenas to Jason Sullivan, a social media expert who worked for a committee formed by Trump campaign advisor Roger Stone.  US News reports: "The subpoenas suggest that Mueller, who is probing Russian meddling in the 2016 U.S. presidential election, is focusing in part on Stone and whether he might have had advance knowledge of material allegedly hacked by Russian intelligence and sent to WikiLeaks founder Julian Assange, who published it."  NBC News reports Stone is "prepared" to be indicted by Mueller, adding: “But I think it just demonstrates, again, this was supposed to be about Russian collusion, and it appears to be an effort to silence or punish the president’s supporters and his advocates.”

Clinton e-mail investigation -- Yahoo reports a Justice Department Inspector General watchdog is expected to release a report critical of senior FBI officials for not seeking earlier in 2016 a warrant to search the laptop of Anthony Weiner, then the husband of Hillary Clinton's close aide, Huma Abedin.  Former FBI Director James Comey said in his book an urgent meeting was held October 27th -- a search warrant was requested and immediately approved for Weiner’s laptop after Comey was told there were hundreds of thousands of Clinton e-mails on the laptop – Comey was also told a complete investigation couldn't be completed before the election.  Comey also wrote he thought Assistant Director Andrew McCabe had made a passing comment to him earlier in October that Weiner's laptop might have a connection to the Clinton investigation.  Many in the Clinton camp believe that Comey's decision to inform Congress the investigation had been re-opened due to the discovery of the e-mails may have caused her to lose to Trump.

Impeachment campaign -- Legal analyst Jeffrey Toobin opines in the New Yorker that "impeachment fervor" among Democrats may result in a disastrous mid-term electoral loss of the House.  Toobin quotes former Trump advisor Steve Bannon: “Anger and fear drive off-year elections, and we are going to talk about how the Democrats want to shut us up by impeaching Trump when they couldn’t beat him in 2016. People are talking about the Republicans losing forty seats in the House, but if we make the election a referendum on impeachment we could break even or pick up a few.”  House Minority Leader Nancy Pelosi clearly agrees about the political danger to Democrats, saying: "Impeachment is not a political tool. It has to be based on just the law and the facts. When I was Speaker, people wanted me to impeach George Bush for the war in Iraq because it was based on false information, but you can’t just go from one impeachment to the next. When we are in the majority, we are going to try to be unifying, and there is no way to do impeachment in a bipartisan way right now.”

Book Beat --

To End a Presidency, a new book by Harvard Law Professor Lawrence Tribe and Joshua Matz, is now available on Amazon.  A review will be published in this Feature in the next two weeks.

USA Today offers an article by Harvard Law Professor Lawrence Tribe and his co-author Joshua Matz, who have just released their new book, To End a Presidency.  The focus of the article is their claim that the Constitutional phrase "high Crimes and Misdemeanors" must not be understood as a requirement that there be a violation of some explicit criminal statute in order to proceed with an impeachment.  Rather, the phrase should be more generally understood -- to include acts that are so clearly wrong that action by Congress is clearly required.  Tribe and Matz write: "it is wrong and dangerous to suggest that proof of criminal offenses is essential when deciding whether to impeach."  They also argue that the phrase high crimes and misdemeanors: "neatly distinguishes impeachability from cruelty, incompetence and stupidity — none of which justifies removing a president."  They conclude: "Unnerving as it may be, we can’t fall back on criminal law to escape the tough political judgment that impeachment requires of us. Ultimately, when we think about 'high crimes and misdemeanors,' here is what we must ask: Will we survive this presidency, and, if we do, what kind of nation will we have become?"  However, (see next paragraph) some appear to suggest that rhetorical question can’t be fully and properly addressed without considering possible instances of “incompetence and stupidity.”

Essay – Fans of old writing and old writers will enjoy an essay by C.M. Ellis published by The Atlantic, and analyzing the meaning of the term "high Crimes and Misdemeanors."  Spoiler alert -- you may have difficulty contacting the author -- the essay was published in 1867 – a year before President Andrew Johnson’s impeachment.  As with Professor Tribe (previous paragraph) an expansive understanding of “high Crimes and Misdemeanors is offered – accompanied by much detail on the expansive scope of that phrase in English history.  However, for Ellis, “incompetence and stupidity” are clearly within the scope of “impeachable offenses.”  Here (partly to offer up the “demeanor of the thinking” and the flavor of this ancient language) is the conclusion: “Thus it appears that the political offences of the Constitution for which civil officers are removable embrace, besides the high crimes and misdemeanors of the criminal law, a range as wide as the circle of official duties and the influences of official position; they include, not only breaches of duty, but also misconduct during the tenure of office; they extend to acts for which there is no criminal responsibility whatsoever; they reach even personal conduct; they include, not merely acts of usurpation, but all such acts as tend to subvert the just influence of official position, to degrade the office, to contaminate society, to impair the government, to destroy the proper relations of civil officers to the people and to the government, and to the other branches of the government.  ¶  In fine, it may almost be said, that for a President to have done anything which he ought not to have done, or to have left undone anything which he ought to have done, is just cause for his impeachment, if the House by a majority vote feels called on to make it the ground of charges, and the Senate by a two-thirds vote determines it to be sufficient; for the safety of the state is the supreme law, and these bodies are the final judges thereof.”     

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