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.

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 25^th 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.

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.

Overseeing the executive branch is one of Congress's most important responsibilities, with impeachment being the most solemn and severe form. The power of Congress to investigate is fundamental to our system of checks and balances. When a president broadly obstructs Congress’s oversight function, especially during an impeachment investigation, it undermines that system and may violate the president’s constitutional obligation to “take Care that the Laws be faithfully executed.” Accordingly, in grave cases, that obstruction can qualify as an independent basis for impeachment.

In our daily politics, congressional oversight can often look like squabbling between political rivals in Congress and the White House. Dueling letters and rhetorical performances at hearings look a lot like all our other political fights.

But congressional oversight is rooted in the Constitution and our system of co-equal branches of government, and it is often how the separation of powers is manifested. The Supreme Court has held that Congress’s power to investigate is “essential and appropriate” and that it must be backed by “means of compulsion ... to obtain what is needed.” The power is “penetrating and far-reaching” and is at its zenith when used to “inquire into and publicize corruption [and] maladministration” in government. When a president improperly obstructs valid congressional oversight, Congress has several means of recourse, from holding officials in contempt and seeking judicial intervention, to using the power of the purse to compel cooperation, to — at least historically — detaining or fining officials under its “inherent contempt” powers.

Impeachment is perhaps Congress’s most potent way to hold government officials accountable. And in the past, Congress has cited obstruction of congressional oversight as a basis for impeaching a president. The second article of impeachment against President Richard Nixon included the allegation that he failed to act “when he knew or had reason to know that his close subordinates endeavoured to impede and frustrate lawful inquiries by duly constituted ... legislative entities.” The third article of impeachment cited Nixon for having failed “without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives ... and willfully disobeyed such subpoenas.” In other words, the House Judiciary Committee approved articles of impeachment against Nixon for obstructing congressional oversight.

The fourth article of impeachment against President Bill Clinton — passed by the Judiciary Committee but not adopted by the full House — claimed Clinton “impaired the due and proper administration of justice and the conduct of lawful inquiries, and contravened the authority of the legislative branch and the truth seeking purpose of a coordinate investigative proceeding.” It cited Clinton for failing to respond to certain written requests and for making false and misleading sworn statements in response to congressional requests.

It is clear, however, from historical practice, constitutional design, and politics that impeachment is not appropriate every time Congress’s efforts to investigate a president are stymied. Not all noncompliance with oversight is impeachable or even wrong. The separation of powers contemplates a struggle between the executive and legislative branches. Legitimate volleys in that struggle should not be impeachable — the difference between negotiation and obstruction in the context of congressional oversight is often in the eye of the beholder. Many members of Congress have described accommodation efforts as obstruction.

Whether a president’s refusal to cooperate with congressional investigations rises to the level of an impeachable offense should turn, at least, on two factors. First, drawing from the law of obstruction of justice, Congress should find the president has acted with corrupt intent vis-à-vis oversight requests. Not all acts that could “obstruct” a criminal case are appropriately charged as obstruction of justice, such as filing a good faith motion to quash a subpoena or validly asserting one’s Fifth Amendment rights. In contrast, tampering with witnesses or destroying evidence can warrant a criminal charge.

Likewise, to rise to an impeachable offense, obstruction of congressional oversight should include some level of corrupt mens rea. Professors Daniel Hemel and Eric Posner argue for a meaningful mens rea standard when analyzing when a president, who runs the Department of Justice, can be said to have engaged in obstruction of justice. They argue a president may commit obstruction of justice if he or she “significantly interferes with an investigation, prosecution, or other law enforcement action to advance narrowly personal, pecuniary, or partisan interests.” They contrast that with a decision to stop a prosecution that might expose a covert operative.

A similar standard is appropriate in the congressional oversight context. If the president blocks inquiries to protect his personal, pecuniary, or partisan interests — as opposed to the public interest — he or she may be said to be “obstructing.” Likewise if the president refuses to turn over information based on invalid legal theories or in defiance of a court order. For example, the articles of impeachment against Nixon asserted he thwarted congressional requests for information “without lawful cause or excuse,” to protect himself based on improper assertions of privilege.

Trump’s total war on oversight presents a challenging question for impeachment. On matters grave and small, he has directed his administration to resist all scrutiny, famously saying he was “fighting all the subpoenas” and pledging to adopt a “warlike posture” to investigations. While many of the issues at stake do not implicate the president’s personal interests — many do, of course — the aggregate level of defiance is unprecedented and highly problematic. Impeachment for such conduct would be equally unprecedented but not necessarily improper. Congress would need to tie the aggregate defiance to a corrupt intent. For example, evidence that Trump ordered the blockade of all oversight to lend cover to one area in which he needed to protect himself would show the blockade is self-interested. And conceivably Congress could make the case that the total scale of the blockade reflects a corrupt approach to governance and a violation of Trump’s presidential obligations. But the case would need to be very compelling or it would risk turning routine oversight negotiations into scandals, which historically they are not.

The second factor in determining whether a president’s actions rise to the level of impeachment is the severity of the obstruction. Routine separation-of-powers struggles over oversight should not be sufficient. Impeachment is most appropriate where the obstruction (a) substantially thwarts (b) a legitimate congressional inquiry (c) into a matter of significant constitutional or legal importance.

When the president crosses this line is always going to be a matter of debate. With Nixon and Clinton, the alleged obstruction came in the context of impeachment proceedings, meaning that the House had already determined that the subject matter of its investigations met the threshold for impeachment. If, as with the Trump administration, obstruction of an impeachment inquiry is part of a consistent pattern of obstruction of all oversight, then that broader narrative could serve as atmospheric evidence in support of impeachment.

Finally, as with the crime of obstruction of justice, obstruction of oversight could conceivably offer a stand-alone basis for impeachment. In the criminal context, many obstruction of justice charges are brought without also charging the underlying crime. It would be a terrible incentive if a president could immunize himself from impeachment by thwarting all requests for information from Congress.

Nevertheless, impeachment for obstruction of oversight is probably best paired with a substantive basis for impeachment. Demonstrating the severity of the underlying conduct that is being investigated would help show why the obstruction of congressional oversight is also severe. In addition, before pursuing impeachment for obstruction of oversight as a stand-alone charge, Congress should also consider whether its other tools, such as the power of the purse or enforcement of a subpoena in court, provide an alternative mechanism to obtain compliance with its demands.

Our constitutional system depends on checks and balances. Thwarting Congress’s ability to check the president undermines that system and makes our government less accountable. It is no surprise that Congress has previously found obstruction of oversight to be an impeachable offense. The current administration’s wholesale blockade of oversight presents an unprecedented fact pattern for potential impeachment. But as of this writing, it appears Congress will not be faced with the question of whether to pursue obstruction as a stand-alone basis for impeachment. Instead, the administration’s posture toward accountability will be considered alongside alleged cases of brazen misconduct.