Should we be considering the impeachment of President Donald Trump?
Many tremble at the idea, fearing how Trump's supporters will react to an impeachment inquiry, worrying that it will only further polarize an already deeply divided nation or that there will not be enough votes in the Senate to convict him even if the House of Representatives votes to impeach.
I'm not afraid. As a junior congresswoman, the youngest ever elected at that time, I served on the House Judiciary Committee that voted to impeach President Richard Nixon for the high crimes and misdemeanors he committed in connection with the Watergate cover-up and other matters.
To evaluate the case against Trump fairly, we need to set aside his unremitting attacks on the environment, on our close allies, on almost every program that President Barack Obama put into effect (including the Affordable Care Act) and any disagreements we have over policy, as well as any personal animus.
With Trump again decrying special counsel Robert Mueller's investigation as a "phony witch hunt," we'll even leave Russia off the table. Potential collusion aside, there are still plenty of impeachable offenses. Two of the strongest are Trump's refusal to separate himself from his business interests (a potential violation of the bribery ban and the Constitution's emoluments clause) and his approval of a "family separation" immigration policy (a potential abuse of power).
Bribery
Bribery strikes at the heart of democracy and seriously endangers the country. It is one of the constitutionally specified grounds for impeachment for good reason, as a president who is swayed by bribes is no longer acting in the best interests of the country and its people.
Congress may not be strictly bound in an impeachment proceeding by the elements of the current federal bribery statutes or the recent Supreme Court decisions interpreting them. But impeachment for taking bribes should nonetheless encompass the knowing receipt by a president of money or something of value designed to affect the president's official behavior—whether the president's behavior is affected or not. This is the gist of bribery.
Trump, of course, is a prime target for such charges because, unlike his predecessors, he has refused to separate himself from his numerous and far-flung business interests, such as hotels and golf courses, and is still able, while president, to earn money from those businesses. Bribes may easily be disguised in the business context—for example, by overpayments for property, goods or services.
Three recent transactions involving Trump raise the specter of bribery and should be fully investigated. After initially questioning Beijing's "One China" policy, which considers self-governing, democratic Taiwan part of China, Trump reversed course after the Chinese government approved Trump Organization trademarks. Likewise, the president ordered the U.S. government to lift sanctions on Chinese company ZTE after China announced it was going to invest "bigly" in an Indonesia theme park with which the Trump Organization had a licensing deal.
This pattern of behavior extends to the Middle East. In June 2017, Trump joined a coalition of countries in a blockade of Qatar, which he called "a great sponsor of terrorism." A year later, however, Qatar became "a great friend" after a major partner of the Qatari government reached a financing deal for a failing building on Manhattan's Fifth Avenue owned by Trump's son-in-law and adviser Jared Kushner.
Moreover, nonpublic information may be in the hands of Mueller, other branches of the Department of Justice or our intelligence agencies. All the publicly available instances would require further investigation, which could be undertaken as part of an impeachment inquiry conducted by the House Judiciary Committee or another committee of the House or Senate.
As with high crimes and misdemeanors, impeachment for bribery need not be based on a conviction under a specific criminal statute. We do not have to wait for the president to be convicted of bribery before he can be impeached, a seemingly impossible precondition for impeachment since Justice Department policy appears to be that a president cannot be indicted while in office.
Emoluments
As with bribery, the framers of the Constitution provide no definition of emoluments, which are first cousins of bribery. Framers so strongly feared that emoluments would carve a path to corruption that they wrote two provisions to guard against it: one to bar the taking of emoluments from foreign governments and another to bar their receipt from states and the federal government.
From Andrew Jackson to Barack Obama, U.S. presidents have asked for the approval of either Congress or the Justice Department in regard to the propriety of potential emoluments, the latest being the Nobel Peace Prize of more than $1 million given to Obama. The Justice Department concluded that the prize was not improper, since it was not given by a "King, Prince or foreign State." Other presidents before Trump, including Abraham Lincoln and Ronald Reagan, tried scrupulously to adhere to the clauses.
Keeping the president free of this kind of foreign influence—and the appearance of it—was a major worry of the Constitution's framers. Trump's refusal to attend to this concern—in fact, his total disdain for it—is what makes his treatment of emoluments a great and dangerous offense. The porous line between his personal and governmental business, particularly in the area of foreign affairs, poses an imminent danger to America, and his steadfast refusal to rectify the problem may constitute a high crime and misdemeanor.
Trump's son Eric has said that he reports on the business regularly to his father. In late 2017, The Washington Post obtained an email from the director of revenue management for the Trump International Hotel in Washington that stated Donald Trump is "very much still involved."
In a violation of the foreign emoluments clause, foreign diplomats have repeatedly chosen to stay at Trump International despite its price being the highest in D.C. Trump has received millions while in office from rent and purchases by foreign governments and dignitaries from stays at his New York properties. Foreign governments and their partners have also made special accommodations to Trump Organization projects in Indonesia, Istanbul, Panama, and the Philippines's Manila.
Although Trump has been offered multiple ways to remedy these violations and urged repeatedly to do so, he has chosen not to. Perhaps above all, he has accepted emoluments without asking for congressional approval, flagrantly violating the Constitution.
Abuse of Power by Separating Children From Parents
There is nothing in U.S. immigration law that authorizes taking children from parents as a penalty for violation of immigration laws. In imposing such a penalty, therefore, Trump abuses the power of his office in a most serious way.
Taking children from parents (when done not to protect the child) is not just "horrible," as he himself has said. It is cruel, depraved and merciless. Yet, without lawful authority, the president has directed and approved what amounts to the kidnapping and torture of thousands of children. No concern for family reunification was apparent at any stage in the policy's implementation. The children and parents targeted, probably because of their Latin American origin, were not even viewed as human.
Furthermore, it appears that one of Trump's motives in creating this "horrible" program was to force the Democrats to accept his immigration policies, including his wall. He all but admitted this on Twitter on June 16: "Democrats can fix their forced family breakup at the Border by working with Republicans on new legislation." A lawsuit filed by state attorneys general against the administration decried this approach: "Families are intentionally being traumatized for political gain." The separation of children from parents for political gain is a great and dangerous offense.
There are other serious constitutional issues involved in the policy. Significantly, it was put into effect only on the Southwest border, where most border crossers are Hispanic. Trump's hostility to Hispanics is well known. He characterized Mexicans as "rapists" during his campaign, called El Salvador a "shithole country" and in May said of undocumented immigrants from Central America and Mexico: "You wouldn't believe how bad these people are. These aren't people. These are animals." Imposing a program of separating children from parents on a racial or ethnic basis is an abuse of power, and it also violates the constitutional rights of the children and parents to equal protection of the law.
Absent evidence that being together is harmful, it is also a violation of due process to separate children and parents without a court hearing of any kind.
A president who so deliberately, cruelly and casually inflicted serious mental and psychological harm on thousands—manifestly on an ethnic basis, as a deterrent to others and as a political tool to get legislation passed without regard to the rights of the children and parents—has subverted the Constitution.
→ This article is adapted from The Case for Impeaching Trump by Elizabeth Holtzman.
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