There’s Nothing Special About an Impeachment Inquiry, and Congress Risks Harm to Itself When It Acts Otherwise

ACS is publishing a series of blogs in a symposium that examines different legal aspects of the impeachment inquiry of President Trump. See also:

Three House committees took a dramatic step on Friday to escalate the ongoing clashes between Congress and the White House over congressional investigation and oversight authority. The committees issued a joint subpoena to Secretary of State Mike Pompeo for information related to President Trump’s effort to strongarm Ukranian President Volodymyr Zelensky into investigating Joe Biden and his son. While the committee previously subpoenaed this same information under their routine investigatory and oversight power, Friday’s move was different: the committees for the first time invoked the House’s impeachment authority.

The move raises an important question for our system of checks and balances: does Congress have more power to investigate the administration when it relies on its impeachment authority than when it relies on its ordinary investigation and oversight authority?

The answer: no. And by acting otherwise, Congress only risks harm to robust power to engage in everyday investigations and oversight.

Constitutionally speaking, there is no difference in kind between Congress’s power to engage in routine investigations and oversight of the administration, on the one hand, and its power to impeach, on the other. Both are powers that the Constitution gives to Congress. And both operate as significant checks on the executive branch. Moreover, routine investigations and oversight can lead to impeachment just as certainly as an impeachment inquiry can lead to impeachment. There is no constitutional dividing line between the two, and there is no constitutional trigger that signals when Congress moves from its routine oversight role into its impeachment-investigation role. Unless the House adopts special rules for an impeachment inquiry—something not required by the Constitution—the two powers are the same, serving the same purpose: to check the President.

You might say that the two powers are different because one goes to Congress’s general lawmaking function, and the other goes to its unique law-enforcement function (of impeachment). But this claim unduly stovepipes Congress’s various authorities, which aren’t distinct, but instead are complementary. Congress certainly has the power to make laws, and to engage in fact-finding and investigations to that end. But it also has the power to investigate and oversee how its laws are enforced by the executive branch, and to investigate and oversee how the executive branch is using the funds that Congress appropriated. Ultimately, Congress has the power to impeach executive officials for “high crimes and misdemeanors.” In short, Congress’s routine powers to investigate and oversee the executive branch aren’t limited only to serve its lawmaking function; they also serve as an important check on the executive branch, ultimately serving an impeachment inquiry.

If there is a difference between routine investigation and oversight and an impeachment inquiry, it is a difference in magnitude, not kind. After all, impeachment can lead to an official’s removal from office (if convicted in the Senate). But any difference in magnitude can’t mean that congressional authority to engage in routine investigations and oversight is less than its power to investigate a possible impeachment. That’s because at the point of an impeachment investigation, Congress is still just investigating. Again, unless the House offers up special rules for an impeachment investigation—and again, something not required by the Constitution—then its powers to investigate and oversee routine matters is the same as its power to investigate impeachment.

Some say that congressional authority to investigate a possible impeachment is greater because an impeachment investigation neutralizes the three constitutional arguments that the Trump administration has lodged in stonewalling routine House investigations and oversight. First, the administration says that congressional requests are merely designed to embarrass the President and therefore have no “legitimate legislative purpose.” Next, it claims that the nature of the congressional requests show that Congress is engaged in law-enforcement, not law-making, in violation of the separation of powers. Finally, the administration asserts its newly expanded, but grossly deformed, version of executive privilege.

But these arguments, or close variations, apply with equal force against an impeachment inquiry. As to the first, that House investigations serve no “legitimate legislative purpose,” the administration can simply claim in a similar vein that House impeachment inquiries serve no legitimate impeachment purpose. In particular, the administration can claim that inquiries aren’t tailored to obtain information going to “high crimes and misdemeanors.”

As to the second, that congressional inquiries signify impermissible law enforcement, the administration can similarly argue that impeachment inquiries represent impermissible law enforcement. For example, the administration can claim that impeachment inquiries may seek to root out ordinary, or “low,” crimes, but not “high crimes and misdemeanors.” The administration can argue that it’s not Congress’s job to enforce those “low” crimes.

Finally, as to the third, that routine inquiries impermissibly encroach upon executive privilege, the administration can make the exact same claim with regard to impeachment inquiries. The administration can argue that executive privilege protects certain communications, information, and testimony whether requested in the context of a routine congressional inquiry or an impeachment inquiry. And given the administration’s gross expansion of executive privilege, it surely will make these arguments.

Thus, the administration’s constitutional arguments against routine congressional investigations and oversight apply with equal force against an impeachment investigation. The fact that Congress has moved into an impeachment inquiry doesn’t fundamentally neutralize them. And they therefore don’t mean that Congress has greater power to engage in an impeachment inquiry.

The real problem with these arguments is that they are frivolous. They undermine neither Congress’s routine investigation and oversight authority nor its impeachment inquiry authority.

As to the first, the Supreme Court has recognized Congress’s power to engage in routine investigations both in aid of its lawmaking power and also to oversee the executive branch’s enforcement of the law. And it has given wide berth to Congress in exercising this power. Put plainly, almost any congressional inquiry can serve a “legitimate legislative purpose.”

As to the second, congressional investigations for any purpose simply do not amount to impermissible law enforcement. By definition, they can’t. Impermissible law enforcement would require Congress to do something more, like take a truly extraordinary step of appointing its own prosecutor and initiating actual enforcement proceedings. Routine congressional inquiries to the Trump administration don’t even come close to that level of law enforcement.

As to the third, this administration has stretched executive privilege beyond all recognition in its dogged efforts to shield information from Congress. The Trump administration has invoked executive privilege on behalf of a far wider range of individuals and communications than the courts have recognized. And the administration has invoked it categorically and prospectively (before even learning of the precise congressional request), contravening plain court rulings and the very nature of a privilege.

None of these arguments carry any weight, either against routine congressional investigations and oversight, or against an impeachment inquiry.

But by acting as if an impeachment inquiry neutralizes these specious arguments, Congress risks validating them. In other words, when Congress invokes its impeachment inquiry as a stronger basis for obtaining information from the administration, it risks implicitly acknowledging the force of these arguments against its routine investigations and oversight.

More generally, by treating an impeachment inquiry as a stronger basis for obtaining information, Congress risks diminishing its routine investigation and oversight powers. But those powers are robust—every bit as robust as its power to engage in an impeachment inquiry. By treating the powers differently, Congress risks undermining its own authority to engage in routine investigations and oversight in the future.

All this isn’t a reason not to investigate possible impeachment. Given the evidence, Congress should move ahead. But it should also acknowledge that its power to engage in routine investigations and oversight is every bit as strong as its power to investigate possible impeachment. And it should continue to press the administration in the courts to comply with its many outstanding routine requests.

Executive Privilege and Impeachment 

This blog is one in a series of blogs in a symposium examining different legal aspects of the impeachment inquiry of President Trump. View the entire Impeachment Blog Symposium.

Mike Pompeo has signaled that he plans to invoke executive privilege to avoid disclosure of statements or documents relevant to impeachment. This will raise a crucial constitutional issue – whether executive privilege can be invoked to hinder an impeachment proceeding. There is a strong case that executive privilege should not limit disclosures to relevant House Committees in the impeachment context.

The Supreme Court has never held that executive privilege applies in the impeachment context. Instead, it created the privilege in the context of a dispute about discovery of communications between President Nixon and White House advisors in a criminal case not aimed at Nixon himself, but at his advisors and campaign staff. Nixon was only an unindicated co-conspirator in that case. Because of the case’s context, the Court focused on balancing the President’s confidentiality interests against the judicial system’s need to reach a just verdict in a criminal case.

In the context of a criminal case, it held that the privilege cannot trump the need to disclose information essential to reaching a just verdict. If executive privilege applied in the impeachment context it could not block disclosure of information essential to the impeachment inquiry. The Supreme Court rejected the notion that executive privilege is an absolute privilege in United States v. Nixon. The case for allowing the executive branch to withhold essential information is even weaker in the impeachment context than in the criminal trial context.   Executive privilege cannot prevent disclosure of information essential to resolving the inquiry into whether the House should impeach the President and the Senate should remove him from office.

It follows that the executive branch cannot refuse to disclose information demanded by congressional entities investigating or carrying out impeachment or removal. Rather, Congress would have to judge whether information it received should be disclosed to the public in light of the considerations that animate executive privilege in the criminal context. Several principles support this conclusion.

First, impeachment is, in part, a political process. Congress must make an informed political judgment about whether the President’s conduct betrays the public trust in such a serious way as to make him unfit to remain in office. Informed political judgment requires that executive branch officials must disclose any information arguably relevant to such an inquiry. Because impeachment necessarily requires value choices by politicians with varying views about what betrayal of the public choice is, the essentiality decision cannot partake of the neat logic possible when a single judge makes a ruling about violation of a carefully defined offense under the criminal code. There must be broad latitude in making the essentiality judgment.

The second principle relevant to whether executive privilege should exist in this context involves the need to give proper weight to the impeachment process itself. The Nixon Court required disclosure of matters essential to resolution of a criminal case, because of the weighty due process concerns at issue in deciding whether to convict officials accused of crimes. Making sure that the impeachment process is fully informed is an even more weighty consideration. Impeachment is intended as a remedy to prevent a reversion to despotism. The Framers put impeachment in the Constitution to make sure that the rule of law survived, not just for a few individuals, but for all Americans. It safeguards the entire democratic system upon which liberty depends.

The third principle stems from the rarity of impeachment, which has only occurred twice before in our history (not counting the Nixon resignation). Allowing disclosure of all information even arguably relevant to an impeachment inquiry would not generally impair the executive branch’s operation. The Nixon Court based executive privilege on the need to protect candid communication between the President and his advisors. But Presidents rarely engage in conduct that necessitates impeachment, so a rule of full disclosure in the face of impeachment will not limit candid advice in the overwhelming majority of cases. Although criminal conduct by the President and his aides is not common either, it is much more common than presidential bribery, treason, or high crimes and misdemeanors. And most of those advising a President so unfit for public office as to potentially merit impeachment will likely offer candid advice even if disclosure might ensue, as they would want to counsel him to stay within the law. Furthermore, we want to discourage advisors from encouraging Presidents to violate their oath of office. Impeachment with no executive privilege would reinforce officials’ obedience to their constitutionally required oath of office, which demands that they swear obedience not to the President, but to the Constitution. In other words, we want to discourage candid advice about how best to evade the law or serve a foreign power to which a corrupt President is beholden (something mentioned by the Framers as a central concern).

The rarity and importance of impeachment should generally outweigh even the need to protect information vital to national security. The Nixon Court suggested that information damaging to our national security provides a stronger case for confidentiality than other kinds of material. But the Framers established impeachment, in part, to prevent a President beholden to a foreign power from remaining in office. In other words, it was designed to protect our national security from a disloyal President, even one who commits treason. Therefore, the need for the material necessary to resolve an impeachment inquiry must take priority over other information that might in some way temporarily damage our national security. Impeachment provides the defense against permanent destruction of the Republic, the very quintessence of what national security is all about.

The President cannot withhold information based on executive privilege even if he wishes to assert that the privilege applies. Initiation of an impeachment inquiry suggests that many elected representatives believe that the President may not be trustworthy. The inquiry exists to address problems like self-dealing and betrayal. A President meriting impeachment is very likely to abuse executive privilege or to interpret it generously in his favor. Furthermore, since impeachment is the remedy for treason, the procedures governing it must permit quick action when necessary, unobstructed by a self-interested President. Therefore, the President should turn over all information requested by relevant House committees, while noting which information it thinks should not be publicly disclosed and why. If the President resists, the courts should promptly order full disclosure to the relevant House committees, but not necessarily the public.

The question then arises about whether the House committees gets to decide questions of whether it should keep information the President regards as privileged, confidential, or instead, the courts should resolve them. Nixon held that the courts should decide questions of privilege when the President asserts the privilege as a defense to discovery in a criminal case. It is not obvious that the courts should adjudicate presidential claims that the House should keep information it finds pertinent to its impeachment inquiry confidential, which necessarily arise outside of an ongoing court proceeding.

Separation of powers principles, practicality, and precedent counsel against the courts intervening to limit public disclosure of information in an impeachment proceeding. The Supreme Court has held that the Constitution commits questions of how to conduct an impeachment to Congress and that questions relevant to how Congress proceeds are therefore non-justiciable political questions. That principle would imply that the Constitution itself commits the issue of how much relevant information to disclose to the public to Congress when it commences an impeachment proceeding. Information, after all, is the center of a rational impeachment decision. If the Supreme Court ends up with an executive privilege issue, it should not undertake a balancing of the information needs of Congress against that of the President. It should simply hold that executive privilege does not apply in this context, but suggest that the Congress should consider the impact of public disclosure on national security and appropriate candid advice (which it will be inclined to do anyway).

More broadly, Mike Pompeo mentioned separation of powers concerns with information disclosure. While it is common to speak of separation of powers and checks and balances in one breath, in fact, they are in tension. The Constitution does not completely separate powers. It requires checks that breach the wall between branches. Impeachment, of course, constitutes the ultimate check and balance. It empowers Congress to removal any official of the other branches of government for betraying the public trust. Like all checks, it stands as an exception to the rule of rigidly separated powers. And honoring this check especially is crucial to the Constitution’s survival.

Impeachment’s importance as a check on a dangerous President suggests that executive privilege cannot apply once an impeachment proceeding begins. Allowing it to apply constitutes an unconstitutional interference with the congressional authority to determine how to process impeachments.

Barr Should Recuse Himself from All Things Ukraine

This blog is one in a series of blogs in a symposium examining different legal aspects of the impeachment inquiry of President Trump. View the entire Impeachment Blog Symposium.

When I served as U.S. Attorney for the Eastern District of Michigan, President Barack Obama told all me and my colleagues to always remember that we did not represent him, but that we represented the American people and the Constitution. If only William Barr had heard that message.

The whistleblower complaint regarding President Donald Trump’s dealings with Ukraine raises concerns about Barr’s performance of his duties as attorney general. At the very least, by failing to recuse himself from the matter, Barr is undermining the credibility of the Department of Justice.

In August, a whistleblower filed a complaint with the Inspector General of the Intelligence Community describing a series of acts that included a July 25 telephone call between Trump and Ukrainian President Volodymyr Zelensky. The whistleblower alleges facts suggesting that Trump attempted to use $391 million in U.S. military aid to Ukraine as leverage to get Zelensky to agree to investigate Joe Biden, a candidate to unseat Trump in the 2020 election.

During the call, Trump suggested that Zelensky work with Trump’s private attorney, Rudolph Giuliani, as well as Barr on the investigation. “I will have Mr. Giuliani give you a call, and I am also going to have Attorney General Barr call, and we will get to the bottom of it,” Trump said, according to the summary. The Department of Justice has issued a statement that Barr, in fact, did not talk to anyone in Ukraine about this matter or any other subject. Even so, the inclusion of Barr’s name in the report created a conflict that should have caused him to recuse himself from the matter.

Pursuant to the Intelligence Community Whistleblower Protection Act of 1998, the Inspector General for the Intelligence Community must investigate an internal complaint and determine whether it is credible and of “urgent concern.” IG Michael Atkinson concluded that this complaint met both requirements, and passed the complaint and his findings to the acting Director of National Intelligence Joseph Maguire. Under the statute, the DNI “shall” forward the complaint to the congressional intelligence committees upon such a finding. Instead, acting DNI Joseph Maguire went to the White House and the Department of Justice for advice about how to proceed, undermining the very purpose for whistleblower laws. In other words, the acting DNI went to the very subjects of the whistleblower’s complaints to ask if the complaint should be shared with Congress.

Despite the mandatory language of the text of the statute, DOJ determined that the law did not require disclosure of the whistleblower’s complaint to Congress. Steven Engel, the Assistant Attorney General for the Office of Legal Counsel at the Department of Justice, signed a legal opinion concluding that the whistleblower’s complaint need not be shared with Congress because the complaint did not meet the technical definition of “urgent concern.” He reasoned that alleged presidential misconduct in a classified telephone call is not an intelligence activity, and that the president is not a member of the intelligence community. Therefore, he concluded, the reporting requirement to Congress was not triggered. He concluded instead that the complaint should be shared with the Criminal Division of the Department of Justice to decide whether any crimes had been committed. DOJ’s Criminal Division reportedly reviewed the matter and concluded that it did not violate campaign finance laws.

This process seems wrong on a number of levels. First, it seems overly narrow to conclude that a matter that comes to a member of the intelligence community in the course of performing his official duties does not constitute an intelligence activity, or that the president, who has the power to classify and declassify information, is not a member of the intelligence community. Second, even if one were to agree with Engel’s analysis, the law does not permit the DOJ to second guess the IG. The language of the statute assigns the decision to the IG. Upon his conclusion of the complaint’s credibility and urgent concern, the requirement to disclose it to Congress is mandatory. Third, in light of the DOJ policy that a sitting president cannot be charged with a crime, as we learned from Special Counsel Robert Mueller’s investigation, framing this matter as a criminal investigation is futile. Instead, allegations of presidential misconduct should be framed as a potential impeachment matter, further supporting the conclusion that it must be shared with Congress. Finally, even if the matter is appropriate for consideration of criminal charges, members of the Trump administration have a conflict of interest in considering whether Trump has committed a crime, and would need to request the appointment of a special counsel.

DOJ spokeswoman Kerri Kupec has said that Barr was not involved in Engel’s decision but did not recuse himself from the matter.

Under government ethics rules, recusal is appropriate if “a reasonable person with knowledge of the relevant facts would be likely to question the employee’s impartiality in the matter.” The need for Barr to recuse here is obvious. Barr’s name is included in the report as someone that Trump said he would assign to participate in activity that could amount to campaign finance violations, bribery, extortion or conspiracy to defraud the United States in the fair administration of elections. The public need not take Barr’s blanket denial as proof that he was not involved. In addition, even if one were to give Barr the benefit of the doubt that he did not, in fact, communicate with Ukraine, the inclusion of his name in the report is potentially embarrassing, creating an incentive to keep the report from Congress so that he does not have to answer questions about his own role. Conflict of interest rules exist not only to protect against actual conflicts, but also about perceived conflicts to avoid undermining public trust. The report creates at least the perception that Barr has such an incentive. A reasonable person with knowledge of these facts would be likely to question Barr’s impartiality in this matter.

In addition, as the investigation into these allegations unfold, the Department may be required to weigh in on other issues, such as whether members of the executive branch may assert executive privilege to prevent testimony or production of documents. Barr’s involvement in such decisions would undermine public confidence in the legal arguments.

Barr’s credibility is already on thin ice after his conduct as attorney general -- his decision that Trump did not engage in obstruction of justice after Mueller declined to reach a decision but found substantial evidence that he did, his parroting of Trump’s talking points that Mueller found “no collusion,” his reference to the FBI’s investigation into Russian election interference as “spying,” his investigation of the investigators, his arguably false testimony before the House that he did not know that Mueller’s team was frustrated with his characterization of the report, despite having received a letter so stating, and his evasive response to questions from Sen. Kamala Harris about whether the White House had ever suggested initiating any investigations.

Barr likely feels tremendous pressure not to recuse himself, after witnessing the treatment Jeff Sessions endured as attorney general after recusing himself from the Russia investigation. Trump’s laments that he lacked an attorney general to protect him, and his public yearnings for his "Roy Cohn" clouds public trust of the way Trump views the office of attorney general.

Barr needs to recuse himself from the whistleblower complaint and related matters to demonstrate that his office does not exist to protect the president, but to represent the people of the United States.

The Whistleblower vs. Trump's "Deep State": A Q&A with Jon Michaels

This interview with Professor Jon Michaels was conducted by Zachary Wolf and originally appeared on CNN.com.

President Donald Trump has long complained of a deep state of bureaucrats out to get him. He's argued that investigations into his unsettling activity are nothing more than witch hunts.

A top White House aide, Stephen Miller, on Sunday said that the whistleblower who raised concerns about Trump's pressure on Ukraine to investigate the Biden family was a "deep state operative."

Miller argued it's actually Trump who is the whistleblower because he has uncovered a government run amok and as a result his presidency has suffered from three years of "deep state sabotage."

Trump's entire presidency has been about taking a hammer to a layer of government we have built around ourselves. In his paranoid world view, he must do battle with a deep state. For much of the rest of the country, it is committed civil servants who help make society work.

So how will a whistleblower working through the bureaucracy affect Trump? We went to Jon Michaels, a law professor at UCLA and author of Constitutional Coup: Privatization's Threat to the American Republic, to ask about Trump's theory of a "deep state" and the health of the American bureaucracy under Trump.

The conversation below has been edited slightly. And it should be noted that Michaels is no fan of Trump and is a fan of federal workers, so he brings that perspective to his answers.

ZW: Early in the Trump administration you wrote a piece debunking the conspiracy theory that there's a "deep state" of entrenched bureaucrats bent on destroying Trump. What is your first reaction to a government worker utilizing a whistleblower law to raise the alarm about the President's behavior?

JM: My first reaction is this isn't the work of an insidious "deep state." It is, rather, the work of a functional, credible "state." This White House has done amazing work flipping narratives, demonizing patriots, and generally gaslighting the public. The people who contributed to the whistleblower report are no doubt longstanding, competent civil servants, who've worked for Democratic and Republican presidents alike. Some may have started in the Clinton or Bush years and thus have clearly spent at least long stretches of time subordinating their political preferences in service to the United States.

My second reaction is, if anything, the state isn't deep enough. Decades of marginalizing civil servants through privatization initiatives and now several years of President Trump attacking, pressuring, and reassigning highly competent officials in such offices as the State Department, the Department of Interior, and the EPA have created a bit of a brain drain and certainly a morale problem. Recall how the White House pressured NOAA to back the President's inaccurate claim that Alabama was indeed in the hurricane Dorian danger zone. That's nothing compared to the systematic efforts to, among other things, quash work on climate change.

ZW: We have seen multiple examples of government workers dealing with Trump in different ways. They have refused to follow his orders, as Sally Yates did before she was fired. They have resigned from his administration, as James Mattis did, over military policy. They have argued that influencing him from within is better, as anonymous did. Now we have a whistleblower. What is the proper course of action for a worker who disagrees with his or her President?

JM: I actually ask a version of this question to my law students (and hasten to add that I began asking that question years ago under President Obama!). There is no single answer to that question, and the diversity of options is a strength of our constitutional system -- and a testament to lawmakers who recognized there are many ways to speak truth to power.

Imagine if this whistleblower quit. I think it is fair to presume few would have ever noticed -- and none of us would be in any position to guess what alleged wrongdoing drove him or her to leave government. Imagine if this whistleblower penned an anonymous op-ed. There would be no one to the Intelligence Community Inspector General to affirm the grievance as credible. There is furthermore no reason to consider the disobediance option.The whistleblower had no statutory or constitutional authority over the conduct of American foreign policy. Accordingly, based on what we know at this date, I think the whistleblower used the most direct and most appropriate avenue available.

ZW: We all learn about the three equal branches of government in the Constitution (executive, legislative and judicial) and how they are, to varying degrees, responsive to voters. The Constitution doesn't say anything about the bureaucracy, but that's the front line of government most people interact with. And the bureaucracy is somewhat insulated from the people because most government workers will report for duty no matter who the President is or what Congress does. How does the modern bureaucracy square with the original vision of a federal government?

JM: If anything, the rise of the bureaucracy is a necessary and rule-of-law-protecting corollary to the rise of the powerful modern President, who has truly awesome sway over economic, social, diplomatic, and military affairs not only in the US but also around the world. (Remember the federal government of Washington, Hamilton, and Jefferson was very much a bit player at home and abroad -- and it was Congress, not the President, they feared might overreach.)

For those worried about bureaucracy, I would encourage them to think of the bureaucracy as an integral part of the new, modern separation of powers, reflective of a reality where Congress has marginalized itself (not just because of dysfunction and partisan gridlock but also because they've spent the better part of a century delegating more and more power to the president). And it is precisely these bureaucrats' distance from politics that gives them the clarity and independence to cry foul if something is deeply awry.

For those who worry about individual bureaucrats, my short answer is that they're more likely to be like you or me than they are to be economic "elites" that populate Congress and, often, occupy the White House.

And for those who worry about the power of groups of bureaucrats, it is important to recognize that the design of our bureaucracy actually makes it hard for employees across agencies to subvert popular will. Most bureaucratic work is siloed (with each agency, or even bureau within an agency, constituting its own silo). Again, something has to be deeply awry before multiple red flags are raised such that there could be even the semblance of coordinated resistance.

ZW: Do you feel like the bureaucracy has generally stood up to Trump? Is there evidence of an actual resistance?

JM: I'm clearly a pretty big believer in bureaucracy but when the history of the Trump presidency is written, the bureaucracy will be shown to have a mixed record. One story is surely about resiliency, professionalism, and restraint. But another story is about enabling. Donald Trump, Mick Mulvaney and Stephen Miller are not policing the detention centers. They're not riding shotgun on immigration raids. For all I know, those government workers who are doing such things are doing everything possible to act justly and humanely. But there's a lot of evidence to at least suggest otherwise. We haven't seen anything like mass resignations or even concerted work slowdowns. This apparent lack of grass-roots bureaucratic resistance does support my claim that the bureaucracy is indeed hard to mobilize in a concerted fashion, but what we're experiencing with respect to family separations, near-across the board denials of asylum, and inhuman conditions of detention strikes me as nothing short of an existential crisis, if not for the soul of our nation then at the very least for the legitimacy and credibility of a prominent federal agency and all who enable it.

ZW: We would not know about Trump's questionable behavior -- trying to use a foreign government against a domestic political rival -- if it weren't for the whistleblower. If Trump faces no consequences, what will that mean for the way the US government functions?

JM: First, I think there is already despair and disillusionment because neither legal nor political checks have done much to restrain or even embarrass a very dangerous presidency. As many have observed, the timing of the Ukraine call -- right after the apparent "end" of the Mueller investigation -- is especially disconcerting.

Second, I do think -- or at least hope -- we'll muddle through and that responsible actors will here and there step up to check the President's worst or most dangerous impulses.

Obviously all bets are off were the President to win reelection, as that would further embolden him to run roughshod over the rule of law (and send many a frustrated civil servant into early retirement).

How Trump has changed the government

ZW: Finally, we're almost three-quarters of the way through a four-year Trump term. Has he permanently changed the US government?

JM: Nothing's permanent, but I think President Trump has said and done many things that damage our commitment to the rule of law, diminish our international standing and security, and hamper our efforts to overcome our vile history of racism, misogyny, and lgbt discrimination. But to stay on topic, I think I would say that Trump has changed the public's relationship with truth and expertise. There have always been conspiracy theories. But he's indulged and endorsed people, organizations, and publications that traffic in flat-out lies and deny scientific facts. And by making government officials party to this mindset -- think about the Justice Department and Attorney General Barr's dismissiveness over the Mueller report and the whistleblower report -- he has now given the rest of us real reason to question the objectivity and authority of government. It's disastrous. Again, nothing's permanent -- but it may well take decades to repair the damage.

Profiting off the Presidency: Trump’s Violations of the Emoluments Clauses

This blog is one in a series of blogs in a symposium examining different legal aspects of the impeachment inquiry of President Trump. View the entire Impeachment Blog Symposium.

President Donald Trump has been violating the Constitution since noon on January 20, 2017. His decision in the months prior to his inauguration to retain ownership and control of his sprawling business empire—a move that went against both long-standing historical practice and the advice of career government ethics officials—put him at odds with the Constitution’s original anti-corruption provisions the moment he was sworn in. Generally, these anti-corruption provisions, the so-called Emoluments Clauses, prohibit the president from receiving any profit, gain, or advantage from any foreign or domestic government. Impeachment, as outlined by Alexander Hamilton in Federalist 65, is a political remedy (though not the only remedy) for a president’s egregious violations of these prohibitions.

The Framers of the Constitution were acutely aware of the dangers presented by foreign influence on the president—even in situations subtler than quid pro quo bribery. This is why they created a broad prophylactic rule to prevent foreign governments from essentially purchasing undue influence. Specifically, this rule prohibits anyone holding any “Office of Profit or Trust under the United States” from receiving any “emolument” from foreign powers. An emolument, for purposes of the Constitution, according to two courts and scholarly historical review of contemporaneous usage, is any “profit, gain or advantage.” This rule is what has become known as the Foreign Emoluments Clause, and is located at Article I, Section 9, Clause 8.

In addition, the Framers were very worried about undue influence from the individual states in the union, and by officials profiteering from new federal offices. They were writing the Constitution in part as a response to the problems that had arisen due to the very weak central government outlined in the Articles of Confederation, which predate the Constitution. Under the government outlined in the Articles, the states had much more power than the federal government. Consequently, the Framers were concerned that a powerful state like Virginia might sway the president’s decisionmaking to its own benefit. Further, they confronted concerns that officials in the new government were corruptly blending public and private ventures. For example, Robert Morris, the superintendent of finance under the Confederation, was routinely accused of corruption, accusations that risked weakening public support for the Union. To prevent against these types of abuses, the Framers developed the Domestic Emoluments Clause, at Article II, Section 1, Clause 7, which is a blanket prohibition against the president receiving any sort of advantage from any state government, or from the new federal government.

View our frequently updated Impeachment Resources for analysis by legal experts in the ACS network.

It is worth reiterating that the emoluments clauses are our country’s original anti-corruption laws. They are written into the document that created our government and defined our system of law. President Trump’s corruption has been one of the defining stories of his presidency and has begun to normalize levels of corrupt and unethical behavior that we have not seen in decades—if ever.

As such, while Trump’s specific constitutional violations are critical to determining his legal liability, an impeachment investigation can and should go beyond the specific letter of the law to other areas that violate the basic anti-corruption spirit of the clauses. So, for example, during the bombshell July 25, 2019, conversation that catalyzed the current impeachment inquiry, the president of Ukraine tried to curry favor with President Trump by mentioning that he patronized Trump’s business. While this incident itself might not rise to the level of a strict constitutional violation because Zelensky was not elected when he spent money at Trump’s property, it, and other similar incidents, should still be part of an impeachment investigation as they represent significant violations of the spirit of the Constitution. This particular incident—where a foreign power is using a private connection to the president’s finances to curry favor—is a perfect encapsulation of the type of threat the Framers had in mind when they wrote the Foreign Emoluments Clause.

This brings us back to the original sin of this administration—the president’s decision not to divest from the ownership of his businesses. None of these issues, whether it’s the president of Ukraine trying to curry favor with the president in order to buy more missiles, the government of Saudi Arabia funding hundreds of thousands of dollars in spending at his D.C. hotel prior to murdering a U.S. journalist, or the Romanian president patronizing the Trump Hotel in Washington the day before meeting with the president, would have been a problem if he had fully divested from his businesses.

In every prior presidential impeachment proceeding in our country’s history, a central element of the charges was that the president—be it Johnson, Nixon or Clinton—acted in a manner contrary to his position of trust as president. The remedy for egregious violations of the public trust is impeachment. Throughout his tenure in office, President Trump’s conduct has undermined public faith that the government acts only for the good of the American people rather than for his own self-enrichment. This belief in an impartial, neutral government is critical for democracy to function; once the integrity of government institutions comes into question, the faith in the entire government superstructure breaks down.

The Framers were unambiguous in this respect. Impeachment is a proper remedy for egregious violations of the emoluments clauses’ prohibitions on accepting things of value from prohibited sources. Edmund Randolph, one of Virginia’s delegates to the Constitutional Convention, noted pointedly that there was “another provision against the danger . . . of the President receiving emoluments from foreign powers. If discovered he may be impeached.” Undermining the legitimacy of our democratic institutions to make private profit off of the office of the presidency strikes at the heart of what Alexander Hamilton described as “injuries done immediately to the society itself.”

This type of harm, he argued, can only be remedied by impeachment.

Don't Forget the Cover-Up(s): On Trump's Abuse of the Executive's Secret-Keeping Powers

This blog is one in a series of blogs in a symposium examining different legal aspects of the impeachment inquiry of President Trump. View the entire Impeachment Blog Symposium.

In Federalist 65, Alexander Hamilton described impeachment as directed toward “the abuse or violation of some public trust.” It is hard to envision acts more squarely within that definition than those that entail leveraging the awesome powers of the presidency solely for the president’s own personal or political gain. A number of commentators have argued – convincingly, in my view – that the President’s efforts to pressure Ukraine to take actions harmful to a political rival may well constitute such an abuse. In this post, however, I wish to focus on a related issue that is also shaping up to be part of the House’s impeachment inquiry: President Trump’s misuse of the executive’s secret-keeping tools to keep Congress and the American people in the dark about his actions toward Ukraine. As I explain below, the House of Representatives must include in its impeachment inquiries at least two such abuses: First, the President’s alleged misuse of the classification system to hide records of his communications with world leaders in order to protect himself personally and politically, and second, the President’s possible role in attempting to keep the August 2019 whistleblower complaint from the congressional intelligence committees and to intimidate the whistleblower, his or her sources, and other potential whistleblowers. Finally, should the House include these transgressions in one or more articles of impeachment, they would be wise to situate them within President Trump’s broader pattern of abusing the executive’s vast secret-keeping powers not to protect the national interest, but to keep from the American people and their representatives information that might embarrass him or otherwise harm him personally.

To find a potential abuse of the classification system, we need look no further than the now-famous whistleblower complaint. After describing the July 25th phone call between President Trump and Ukrainian President Volodymyr Zelensky, the whistleblower recounts having been told by White House officials that White House lawyers directed them to “remove the electronic transcript [of the call] from the computer system in which such transcripts are typically stored.” Instead, writes the whistleblower,

 

the transcript was loaded into a separate system that is otherwise used to store and handle classified information of an especially sensitive nature. One White House official described this act as an abuse of this electronic system because the call did not contain anything remotely sensitive from a national security perspective.

 

White House officials also told the whistleblower that “this was ‘not the first time’ under this Administration that a Presidential transcript was placed into this codeword-level system solely for the purpose of protecting politically sensitive – rather than national security sensitive – information.”

As part of their impeachment inquiry, House members must investigate whether the President himself ordered or encouraged such abuses of the classification system. Such presidential involvement would hardly be a surprise. Readers might recall that, among the earliest targets of President Trump’s wrath toward “deep state” subterfuge, were whoever leaked embarrassing details of his phone calls with world leaders. The New York Times recently reported that these early leaks indeed inspired the White House to curtail access to call records.

Apart from the contents of the whistleblower’s complaint, the President’s reaction to the complaint itself warrants investigation as a possible abuse of power. We know from a now-public recording that the President told a crowd of staff and families of the U.S. delegation to the United Nations that whoever “gave the whistleblower the information” is “close to a spy,” and asked, “You know what we used to do in the old days when we were smart? Right? With spies and treason, right? We used to handle them a little differently than we do now.” Although this could be written off as Trump’s trademark political bluster, it could also be seen as part of a larger attempt to intimidate the whistleblower, his or her sources, and future whistleblowers. This is particularly so when the statement is considered alongside Trump’s many other efforts throughout his presidency to intimidate potential whistleblowers.

In probing the President’s response to the whistleblower complaint, it is also essential that House members determine what role, if any, the President played in trying to circumvent the requirements of the Intelligence Community Whistleblower Protection Act (ICWPA) to keep the complaint from the congressional intelligence committees.  As the (Acting) Director of National Intelligence (DNI) himself concluded, the whistleblower followed the ICWPA’s requirements by presenting his complaint to the Inspector General (IG) for the intelligence community. The IG determined that the complaint was credible and raised an “urgent concern.” Under the ICWPA, the IG was required at that point to transmit the complaint to the DNI. Although the IG did just that, the DNI did not follow the statutory command that, at that point, he “shall, within 7 calendar days . . . forward [the complaint] to the congressional intelligence committees.” Rather, the DNI acknowledges that he brought the complaint to the White House and the Department of Justice. The Justice Department’s Office of Legal Counsel – despite serious questions as to whether it had a legitimate role in this process at all and the selectivity of its analysis – wrote an opinion concluding that the complaint did not state an urgent concern and did not need to be transmitted to members of Congress. Congressional investigators must determine what role, if any, President Trump played in attempting to bypass the ICWPA’s requirements and to keep the intelligence committees in the dark.

Finally, the House should situate any articles of impeachment regarding these abuses within President Trump’s wider pattern of exploiting the presidency’s secret-keeping capacities not to protect the national interest, but to bury information that might harm him personally. The House’s inquiry into classification system abuses to lock down embarrassing phone call records surely will include episodes beyond the Ukraine phone call, given indications that this or similar practices date back to the administration’s earliest days and cover multiple phone calls and in-person conversations. Other possible abuses extend to the administration’s repeated, extraordinarily broad invocations of executive privilege – or even of the possibility that the privilege might at some point be invoked – to block congressional fact-finding, and the White House’s wielding of almost-certainly unenforceable non-disclosure and non-disparagement agreements to threaten employees who might speak to the press. Although these are far from the only examples, they sharply illustrate the President’s broader pattern of abusing his powers to keep damning information about himself from the American people and from those who work for them.