Treason In The Age of Trump: Impeachment & Prosecution Won’t Suffice
Note: An addendum was appended to the end of this piece, including an interview of Vladimir Putin by NBC’s Megyn Kelly.
Adam Liptak splits a few strands of impeachment hairs in today’s New York Times when, at this point, we should be examining the entire head of hair. It is no longer appropriate to only worry about what the constitution doesn’t explicitly say about prosecuting a sitting president. Decisively making a case for what should be the nation’s first priorities in a crisis of this magnitude is.
“The closest the Constitution comes to addressing the issue is in this passage, from Article I, Section 3: “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”
This much seems clear: The president and other federal officials may be prosecuted after they leave office, and there is no double jeopardy protection from prosecution if they are removed following impeachment.
However, “whether the Constitution allows indictment of a sitting president is debatable,” Brett M. Kavanaugh, who served on the staff of Kenneth W. Starr, the independent counsel who investigated President Bill Clinton, wrote in a 1998 law review article. Mr. Kavanaugh, who is now a federal appeals court judge, also concluded that impeachment, not prosecution, was the right way to address a sitting president’s crimes.”
One should quite easily conclude that our founders and framers were wise to preclude the spectacle of a highly corrosive and political public trial for a president such as Trump by leaving the prosecution recourse out of the mix. Prosecuting someone who is as temperamentally-volatile and petty as Trump – while he still grips the reins of power of the presidency – would certainly bring our government to its knees.
What are we facing here? In “Kushner’s alleged back-channel attempt would be serious break from protocol,” Politico reports:
“National security officials who worked in the Obama administration were particularly concerned by the reports, which indicate Trump’s aides were trying to avoid having Obama officials overhear their conversations with the Russians.
“What could the Trump transition team not have the U.S. government hear them saying?” said Ned Price, a former CIA officer and National Security Council spokesman in the Obama administration. “Obviously this is improper and may have been illegal. … You don’t have an innocuous explanation for this. You can’t attribute this to carelessness.”
“The fact that they would want to hide it not just from the U.S. public but the U.S. government is unusual, and then they would want to embed the channel inside the Russian intelligence apparatus, if true, is entirely shocking and unprecedented,” said Evelyn Farkas, the former deputy assistant secretary of defense for Russia, Ukraine and Eurasia under the Obama administration. “It’s beyond improper.””
These are quite possibly the most serious allegations any president could ever have to face and our framers were right to prescribe removal and prosecution in the way they did. Logic and prudence dictate removing Trump from office first, and only then prosecuting him for any criminal activity he and his associates might have engaged in prior to, and during his time in office.
An accusation of treason should not be made lightly. That said, there has been plenty of reporting, between the New York Times and Washington Post, to give even the least sophisticated consumer of news a modicum of a clue as to where things are headed in the Trump-Russia investigation. From an article by the New York Times, entitled “Investigation Turns to Kushner’s Motives in Meeting With a Putin Ally:”
“Jared Kushner, the president’s son-in-law and senior adviser, was looking for a direct line to President Vladimir V. Putin of Russia — a search that in mid-December found him in a room with a Russian banker whose financial institution was deeply intertwined with Russian intelligence, and remains under sanction by the United States.
Federal and congressional investigators are now examining what exactly Mr. Kushner and the Russian banker, Sergey N. Gorkov, wanted from each other. The banker is a close associate of Mr. Putin, but he has not been known to play a diplomatic role for the Russian leader. That has raised questions about why he was meeting with Mr. Kushner at a crucial moment in the presidential transition, according to current and former officials familiar with the investigations.”
“Vnesheconombank has also been used by Russian intelligence to plant spies in the United States. In March 2016, an agent of Russia’s foreign intelligence service, known as the S.V.R., who was caught posing as an employee of the bank in New York, pleaded guilty to spying against the United States.
The spy, said Preet Bharara, then the United States attorney in Manhattan, was under “the guise of being a legitimate banker, gathered intelligence as an agent of the Russian Federation in New York.”
Mr. Gorkov is a graduate of the academy of the Federal Security Service of Russia, a training ground for Russian spies. Though current and former Americans said it was unlikely that Mr. Gorkov is an active member of Russian intelligence, they said his past ties to the security services in Moscow were a reason he was put in charge of the bank.”
We also know from other investigative reporting by the New York Times and others, that Mr. Kushner’s real estate holdings are highly leveraged, due to very large debts incurred at the start of the Great Recession. That fact alone would have barred anyone other than Kushner from attaining the most sensitive security clearance. Kushner is the perfect target for one of Putin’s “kompromat” scenarios.
For the particular instance we are now contemplating, it seems as if the one area in which our constitution is left wanting is what the founders and framers probably couldn’t imagine: American voters unwittingly putting a compromised president in the White House. There is no constitutional cure for that and, contrary to some analyses, nor is there one for removing a demonstrably mentally-unstable individual from office quickly and cleanly.
In a CBS News commentary entitled “An obscure way to oust an American President,” Will Rahn first asserts that:
“… the Constitution does provide a manual for what to do in case of presidential incapacity in the form of the 25th Amendment.”
Later in the piece, Rahn writes:
“Then comes Article 4, which has never been used. It stipulates how a vice president, together with a majority of the cabinet, can inform Congress that the president is “unable to discharge the powers and duties of his office.” Should that happen, the vice president becomes “acting president.”
Things get tricky, however, when the president disagrees that he’s incapacitated, decides to fight to remain in office, and informs Congress that he’s fit to serve. In that case, assuming they want to pursue the matter, the vice president and the majority of the cabinet have four days to tell Congress that the president is indeed unwell, and can’t function in office.”
The first barrier to removal, using Rahn’s interpretation of Article 4 of the 25th Amendment, is the very cabinet Donald J. Trump nominated and the U.S. Senate confirmed. How likely are any of the cabinet secretaries, singly or as a group, to conclude and then act on the president’s removal? Which of Trump’s secretaries is likely to take the lead in convening the cabinet behind Trump’s back?
If some of Trump’s possible crimes involve treasonous activity, as the newest allegations against his son-in-law, Jared Kushner, seem to indicate, then the first order of business must be to swiftly excise all traitors from their proximity to our nation’s secrets and the authority to take actions, using the vast power of our nation’s military and intelligence complex. Why would we allow a possible Russian mole to control our government any longer than it can possibly take to remove him from power?
In his piece, Liptak brings in both sides of the argument and, interestingly, Robert Bork, who was most famously derailed as a nominee to the U.S. Supreme Court, makes a solid argument as to why a president should not be prosecuted while in office:
“The Justice Department, in a brief signed by Solicitor General Robert H. Bork, disagreed. But, though the question was not before the court, Mr. Bork added that “structural features of the Constitution” barred prosecutions of sitting presidents.
Since the president has the power to control federal prosecutions and to pardon federal offenses, Mr. Bork wrote, it would make no sense to allow the president to be prosecuted until after he is removed from office and forfeits those powers.”
Indeed! What is the point in trying someone who can, with the stroke of a pen, make his prosecutions moot by absolving all of his associates’?
The issue we should be laser-focused on is what must happen should Special Counsel, Robert H. Mueller, collect enough material to proceed with criminal trials. The question whether or not Mueller and the FBI will be able to collect sufficient hard evidence of criminal activity is a real one. The Hill reports:
“Now that Trump’s current and former aides and allies officially know a probe exists, they’re responsible for preserving all available information that might be relevant. That’s a task complicated by the rise of auto-delete apps like Confide, Signal and WhatsApp, as well as the move his campaign staffers have made into the White House.”
As explained in the New York Times article I focus on here, using Robert Bork’s opinion as our guide, we must keep in mind that there already are memos at the DOJ that seem to indicate that a special counsel does not have the power to prosecute a sitting president. In that light, what we must worry about now, is the makeup of the present Congress and its willingness to be proactive.
Those in charge of the leadership and the committees and sub-committees tasked with doing their own investigations of the Trump-Russia matter all have, in one way or another, ended up protecting the president through their skeptical reactions as news of possible misdeeds have come to light. We’ve also heard flat out refusals to take more proactive roles in uncovering criminal activity, with particular members of the House and Senate making public statements on their support or opposition to naming a special prosecutor. Generally speaking, support has largely been on the Democratic side of the aisle, with a few notable defections on both sides. There have been lawmakers, like Senator Corey Booker, who have openly expressed their opposition to “rush to impeachment.” Senator John McCain, on the other hand, was early to sound the alarm on Trump. But he is most definitely in the minority when it comes to Republicans openly opposing Trump’s presidency.
Then, there are those, like Senator Linsdey Graham reacting to news of Kushner’s request from Ambassador Sergei Kislyak on CNN:
“I don’t trust this story as far as I can throw it.”
“I think it makes no sense that the Russian ambassador would report back to Moscow on a channel that he most likely knows we’re monitoring.” “The whole story line is suspicious.”
No less alarming is the long line of Trump administration officials who, all weekend, asserted in front of TV cameras that backchannels with Russia are a good thing. The Hill reports that John Kelly, Trump’s Homeland Security Secretary said:
“I would just tell you that I think any channel of communication, back or otherwise, with a country like Russia is a good thing.”
Whuut? The Red Scare is over? McCarthyism is finally dead?
Adding to our worries, Politico reports on the difficulties the Department of Justice is facing in filling top positions vacated at the end of the Obama administration, in “Russia scandal ices government lawyer hiring.”
““They were dealing with a pool that had already shrunk and, now, of course, some people will be avoiding it like the plague,” said one well-connected GOP lawyer.”
While Special Counsel Mueller does his work, we must not forget that Congressional committees are also probing the Trump-Russia allegations and, just as it happened during the Nixon Watergate, Iran-Contra, and Clinton investigations, Congress and the FBI, eventually, will come to a point where they are at cross-purposes. The Hill reports:
“Leaders on the Judiciary Committee, which has oversight of the FBI, say their requests for information are being stonewalled. Comey declined to testify publicly before their panel.
“We’re trying to get [Comey] before the Senate Judiciary Committee but we haven’t had any luck,” committee Chairman Chuck Grassley (R-Iowa) told reporters during a conference call. “Of course we could subpoena him but we don’t want to make that move until we have to.”
Grassley and ranking member Dianne Feinstein (D-Calif.) also want the FBI to hand over any of Comey’s memos, and have requested either Deputy Attorney General Rod Rosenstein or Acting FBI Director Andrew McCabe brief their committee.
A spokesman for Grassley didn’t respond to a request for comment on if the committee had heard back on either requests. But Feinstein said this week that they hadn’t gotten a response to their call for memos on Comey’s meetings with Trump and other top officials.”
It wasn’t that long ago that Senator Feinstein spent quite a bit of her question time publicly berating James Comey when he was testifying before her committee. Days later, of course, Comey was fired.
The Hill piece goes on to mention:
“The Senate Intelligence Committee’s probe hasn’t had such setbacks. Chairman Richard Burr (R-N.C.) and ranking member Mark Warner (D-Va.) were given broad subpoena authority and issued the latest round against Michael Flynn, Trump’s ousted national security advisor.
They’ve scored a major victory in getting Comey to agree to testify, had McCabe speak before their committee and met privately with Rosenstein.
Burr and Warner, who have the public backing of Senate leadership, remain tight lipped about closed-door deliberations but have started giving impromptu press conferences after Intelligence Committee meetings and are frequently mobbed by reporters in the Capitol. “
Readers need to be reminded, at this juncture, that while no immunity has been granted to possible witnesses yet, House and Senate committees will soon come up against witnesses who, under threat of prosecution by Robert H. Mueller, will begin to plead the Fifth in open hearings. That is when the temptation to give immunity will be at its strongest and most dangerous. Politico reminds us of Lawrence Walsh, the Iran-Contra Independent Counsel, that we’ve been down that path before. Immunity means freedom from prosecution in the courts:
“After the Iran-contra investigation was over, Walsh said he determined that while congressional immunity was supposed to be limited and leave open the possibility of bringing criminal charges against witnesses in high-profile investigations, the truth was that witnesses who had immunity could effectively never be prosecuted, since it was impossible to show that their congressional testimony had no effect on a prosecutor’s case. In his investigation, Walsh wrote in his 1997 memoirs, he came to see the White House request for immunity for North and Poindexter as a cynical ploy to avoid public scrutiny of more senior officials in the White House, including the president, and make the two former aides into “scapegoats” for the scandal. “Congress had destroyed the most effect lines of inquiry by giving immunity to Oliver North and John Poindexter so that they could exculpate and eliminate the need for the testimony of President Reagan,” he said.”
Will history repeat itself? There are certainly enough actors on both sides of Congress whose interests are served by repeating it.
Russian influence on our politics has been the topic of conversation since before the November 8 election. Curiously, the media has never included Russian influence over lawmakers in Congress as a part of it. There have been no analyses on the influence of foreign money on the election of lawmakers in our Congress. Yet, if we are to believe the Russian influence machine was able to successfully elect its own U.S presidential candidate, then, logically, why wouldn’t Russia hedge its bets by also influencing the election of a large number of federal lawmakers?
If there is any sway to the argument that Russia attempted a takeover of America, then the Congress angle must be thoroughly examined and the American public should receive some answers as to why, suddenly, so many among its lawmakers seem unconcerned that Trump officials were busy attempting to build back-channel communications even before taking office.
Assuming Trump will eventually be removed from office, and hoping that anyone he installed at the cabinet level will be removed with him, we are left with a different set of worries. How far does the sphere of compromise extend? Vice President Mike Pence has generally been described as being outside of Trump’s inner circle, and when faced with statements that might implicate him, such as defending Michael Flynn, Pence has been largely dismissed from suspicion on the grounds that he was lied to. Should he be? On what investigative basis? It isn’t yet clear.
Then, there are other very serious problems with Pence. In, “Trump Is Not An Evil Genius, So Does He Even Matter?” Professor Neil H. Buchanan writes:
“If Trump were suddenly gone, would anything substantive change? The answer to that question is now even more emphatically “no” than it was two weeks ago. Back in those innocent days, liberals who pined for Trump to take early retirement were quickly reminded, “What, you want Pence as President? We might as well have elected Ted Cruz!”
Reasonable people were quite right to be stopped short by that prospect, because Pence is perhaps the most extreme version of the most extreme type of conservatives who took over the Republican Party as it metastasized in the Bush and Obama years. On both social and economic issues, Pence supports a far-right vision that is fortunately still very much a minority view in the country. Why would we want to put him in charge?
The reason do-you-really-prefer-Pence was a rhetorical question for non-conservatives is that there was some sense that Trump is not really a Republican. Even through the transition period, including the daily announcements of lunatic conservative appointments to Trump’s cabinet (choose your least favorite among Sessions, DeVos, Puzder, Price, Pruitt and on and on), it was possible to imagine that there was something that would differentiate Trump from someone like Pence or Cruz.”
Richard Cohen is even blunter in the Washington Post:
“On any given day, Pence will do his customary spot-on imitation of a bobblehead. Standing near Trump in the Oval Office, he will nod his head robotically as the president says one asinine thing after another and then, maybe along with others, he will be honored with a lie or a version of the truth so mangled by contradictions and fabrications that a day in the White House is like a week on LSD.
I pick on Pence because he is the most prominent and highest-ranked of President Trump’s lackeys. Like with all of them, Pence’s touching naivete and trust are routinely abused. He vouches for things that are not true — no talk of sanctions between Mike Flynn and the Russians, for instance, or more recently the reason James B. Comey was fired as FBI director. In both instances, the president either lied to him or failed to tell him the truth. The result was the same: The vice president appeared clueless.”
One should also add the following consideration: by winning the presidency, however he won it, Donald J. Trump upended the decades-long investment the Koch Brothers made in their quest to take over America. As president, Mike Pence will hand that power right back to them.
Circling back to the original arguments in Liptak’s piece, three key actionable pieces stand out:
There is still no constitutional mechanism by which to swiftly remove a president who may either be a traitor or a madman.
A sitting president has no way to sound the alarm about a campaign during a presidential election. What did Barack Obama know and how was he hobbled before and after November 8?
For as long as McCutcheon v. FEC remains the law of the land, America will remain and oligarchy, vulnerable not only to corporate takeovers, but as vulnerable to takeovers from hostile nations with the patience and resources to invest in years of planning and implementation, as Putin and the Russian mafia may well have done.
While the U.S. constitution is far from being a flawed document, it is by no means flawless. What’s more, while our constitution was written by men wise beyond their time, we must recognize that modernity’s advances has made it possible for the greediest, most amoral among us to grab the reins of power in ways our nation’s founders couldn’t possibly anticipate. In the near future, if American voters are able to regain control, they must elect lawmakers in the states and federal legislatures, whose mission will be not only to rid our nation of the scourge that is corruption, but also shore up our constitution so that no Trump can ever get elected again.
James Comey is poised to testify before the Senate tomorrow. I will dedicate a separate post to that. I thought I would add a few thoughts, however, since we now have James Comey’s written statement to the Senate and we also have an interview of Vladimir Putin by Megyn Kelly of NBC. First, Putin, in a badly conducted interview. Ms. Kelly, clearly, was no match. Putin, however, may have said some things, particularly about kompromat, that may come back to haunt. Kompromat, defined above, is a technique Russia has used for ages in getting what it needs from those it targets. For Putin to even try to deny the technique is used was silly.
Why is it important? Well, if we go back to the revelations from the start of the year about opposition research that was done by a former MI5 agent and turned up rumors that Donald Trump was filmed in a hotel room with prostitutes, that salacious scenario is what James Comey was entasked to inform him of on January 6, as explained in the written statement published by the Washington Post.
Here is that statement, embedded for your perusal:
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Los Angeles Times: