Kitabı oku: «The Case for Impeachment», sayfa 2

Some scholars and journalists have asserted that President Trump could not be charged with treason even if he colluded with the Russians, or charged with misprision of treason if he failed to report collusion, saying that treason can be charged “only during a state of war.” Yet the American intelligence community has established that Russia did engage in acts of war against America during the 2016 presidential campaign. This was a modern form of warfare, carried out not with bullets and bombs, but via a cyberattack on the foundations of American democracy. According to the Gerasimov Doctrine, a 2013 paper written by General Valery Gerasimov, chief of the general staff of Russia’s Armed Forces, “the very ‘rules of war’ have changed. The role of nonmilitary means of achieving political and strategic goals has grown, and, in many cases, they have exceeded the power of force of weapons in their effectiveness.”¹⁸

If Trump did, in fact, collude with the Russians, he likely violated other federal criminal laws in addition to treason. These include, but may not be limited to, the Logan Act, which forbids private persons from negotiating with a foreign power; a federal election law that bans campaigns from knowingly soliciting or accepting anything of value from foreign nationals; and the Computer Fraud and Abuse Act, which prohibits any aiding or abetting of illegal computer hacking.

The Russian attack on the U.S. presidential campaign turned out to be more widespread and nefarious than first believed. After an inexplicable eight-month delay, Trump’s Department of Homeland Security revealed in September 2017 that the Russians sought to hack into the registration rolls of twenty-one states, and in some cases, may have succeeded. They also ran thousands of paid, targeted political ads on Facebook. Investigators are probing whether the targeting insights they acted on came from the Trump campaign. Kushner, who took the lead in developing the campaign’s social media operation, is on the record as having said, “I called somebody who works for one of the technology companies that I work with, and I had them give me a tutorial on how to use Facebook micro-targeting.” Special Counsel Mueller has obtained a warrant for Facebook records, meaning he’s convinced a federal judge that there exists probable cause of criminal violations.¹⁹

Beyond denying any collusion with the Russians, Trump also contradicted the findings of the American intelligence community—under both Obama’s and his presidency—with his claim that Russia did not meddle in the 2016 campaign on his behalf. On September 22, 2017, he said, “No, Russia did not help me, that I can tell you, OK?” Any claim to the contrary, he added, “was one great hoax.” This presidential denial carries fateful consequence for the country, in that the Trump administration is doing little or nothing to protect America from future attacks on its democracy by foreign adversaries. Rather than establishing an independent commission to recommend means for safeguarding our democracy, Trump instead set up a “fraud” commission to validate his bogus claim that between three and five million illegal voters denied him a popular vote victory.²⁰

On October 30, 2017, Special Counsel Mueller unsealed indictments of Manafort and his associate Rick Gates, and a guilty plea by former Trump campaign foreign policy advisor George Papadopoulos. Emails from the Papadopoulos plea showed an openness by top campaign officials to collude with the Russians. His testimony establishes that Trump was present at a meeting when Papadopoulos proposed using his Russian connections to set up a Trump-Putin meeting. Papadopoulos further testified that in April 2016, one of his Russian contacts told him, “They [the Russians] have dirt on her;” “the Russians had emails of Clinton;” “they have thousands of emails.” Along with the Goldstone and Sater emails, this is the third time that Russians communicated to Trump associates intending to help Trump win the election.²¹

OBSTRUCTION OF JUSTICE

Among those who speak of scandal, there exists a popular mantra—“the cover-up is worse than the crime.” Catchy as it may sound, it’s a saying that risks trivializing the significance of possible collusion between Trump’s campaign and America’s Russian adversaries. It also plays into the hands of Trump and his backers, who’ve hinted that, even if collusion did transpire, its occurrence was not a serious matter. For example, referring to the June 9 meeting, Trump Sr. said, “Most people would have taken that meeting … it’s very standard.” If such conduct were ever to become standard, American democracy would suffer a grievous, perhaps even fatal blow.

Nonetheless, and based on publicly available information only, there is now at least as robust an obstruction of justice case against President Trump as there was against President Clinton. The difference is that, this time, it’s on a vastly more consequential matter than a consensual, personal affair. The cover-up began early in Trump’s term, when he delayed firing then–National Security Advisor Michael Flynn for eighteen days after the Acting Attorney General had warned that the Russians likely compromised Flynn. Since vacating his position, Flynn has said that he has “a story to tell,” a story that Trump likely hopes to keep untold.

To derail the House Intelligence Committee’s Russia investigation, Trump’s White House worked with Committee Chairman Devin Nunes, who served on Trump’s transition team. In private, Trump reportedly asked CIA Director Mike Pompeo to influence the FBI into backing off the Russia investigation. Former FBI Director James Comey testified under oath that Trump asked him for personal loyalty and to “let go” of the Flynn investigation. Trump then fired Comey, only admitting at a later point that he’d had “Russia on his mind” in doing so. He has since engaged in a campaign to discredit Comey, even breaching the separation between the White House and Justice Department by having his press secretary recommend that federal prosecutors consider indicting Comey—a potential witness against Trump—for using an FBI computer to type personal memos about these exchanges with the president. And, as already touched upon, Trump drafted or participated in drafting the misleading response to the June 9 meeting.²²

CONFLICTS OF INTEREST

Trump has not merely failed to divest himself from his domestic and foreign business interests, he has enmeshed himself even further in arguably unconstitutional conflicts of interest. In likely violation of the Constitution’s Foreign Emoluments Clause, in June 2017 Trump gained preliminary approval from China for nine potentially lucrative Trump trademarks that it had previously rejected. The Trump International Hotel in Washington, D.C., has become a magnet for foreign interests, who rent rooms and hold events on its grounds. Trump has claimed that he will hand over to the U.S. Treasury any hotel profits from these foreign governments, but he failed to indicate how he will calculate revenue above costs.²³

In violation of Trump’s pledge to launch no new foreign ventures, his organization has partnered with billionaire Hussain Sajwani to develop the Trump Estates Park Residences in Dubai, United Arab Emirates. Ongoing projects also enmesh Trump in potentially serious conflicts of interest. In Azerbaijan, one of the world’s most corrupt countries, Trump has entered into a development deal with Anar Mammadov, the son of the nation’s transportation minister. A Trump residential building and an office tower, funded by unknown investors whose money came through banks in Cyprus and Mauritius, is scheduled for completion during the next five years in a suburb of New Delhi, India. In Indonesia, Trump has launched two projects: a resort near Jakarta, and Trump International Hotel and Tower Bali. Trump’s partner, the billionaire Hary Tanoesoedibjo, has founded a new political party in his country and expressed an interest in emulating Trump by running for president of his nation. In Scotland, meanwhile, Trump’s company is embroiled in a permit dispute with the environmental agency over the development of a second golf course near Aberdeen. These and other foreign ventures likely violate the constitution, whether through the direct or indirect involvement of foreign officials and their patronage of Trump properties, or through their granting of discretionary permits, tax breaks, complementary infrastructure development, regulatory easements, and other concessions.²⁴

A lawsuit, filed by the attorneys general of the District of Columbia and Maryland in June 2017, has called attention to President Trump’s violations of the Constitution’s Domestic Emoluments Clause. Recall, though, that the courts have no power to order impeachment, that authority rests solely with the U.S. House. According to Article 2, Section 1, Clause 7 of the Constitution, known as the Domestic Emoluments Clause, “The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them (emphasis added).” This means that, beyond his salary, the president cannot receive anything of value from the federal government or any state or local government.

The framers advisedly applied this prohibition only to the president. As Alexander Hamilton explained, the Domestic Emoluments Clause ensures that the federal and other governments “can neither weaken his fortitude by operating on his necessities, nor corrupt his integrity by appealing to his avarice.” Like the Foreign Emoluments Clause, its prohibition is absolute, with no quid pro quo specified.²⁵

As president, Donald Trump has received and continues to receive unconstitutional domestic emoluments. According to an investigation by Reuters, state and municipal pension funds in at least seven states have made substantial investments in the CIM Group, and pay the Group a few million dollars in quarterly fees to manage those investments, including the controversial Trump SoHo Hotel Condominium in Manhattan. In exchange for managing and marketing the property, says Reuters, “In 2015 and the first five months of 2016, Trump International Hotels Management LLC drew at least $3.1 million from the SoHo, and Trump received $3.3 million in income from the hotel management company, hotel records and campaign filings show.” Thus, “it’s a payment chain from state pension funds to President Trump,” said Jed Shugerman, Professor of Law at Fordham University. “This looks like an emolument to me.”²⁶

Trump built his business empire on concessions from local governments, and at least one of these emoluments, a New York City tax abatement for his Grand Hyatt Hotel, has persisted through his presidency. An analysis by the New York City Finance Department conducted for the New York Times found that in 2016, the tax break, which continues for another four years, netted Trump $17.8 million. That’s just one example of the tax breaks and lease arrangements from government that pose a constitutional violation. Trump has an application pending for a $32 million historic preservation tax credit for his Trump International Hotel in D.C., which he built on the bones of the famous Old Post Office building. The National Park Service, a federal agency under Trump’s control, must give final approval for this application.²⁷

Trump likely received another form of federal emolument when his appointed head of the General Services Administration (GSA) approved his continuing hold on a lease to the Old Post Office property, thereby maintaining his privilege to own, operate, and profit from the hotel. Yet the terms of the lease state, “No member or delegate to Congress, or elected official of the Government of the United States or the Government of the District of Columbia, shall be admitted to any share or part of this Lease, or to any benefit that may arise therefrom.” Designed to avoid conflicts of interest between the GSA, which administers the lease, and other government officials including the president, the provision is not gratuitous. In what could be viewed as a strategic maneuver, Trump appointed a former member of his transition team as the GSA’s Administrator. This Administrator then approved the lease arrangement, which effectively rendered the president the simultaneous tenant and landlord of the property.²⁸

When it comes to Trump’s conflicts with the Domestic Emolument Clause, some violations—like the direct payments made by the federal government to Trump-branded businesses—are especially glaring. The federal government has likely spent substantial sums at the Trump-branded golf resorts, for instance, that Trump has visited many times since his inauguration. The exact amount spent is unknown, because the administration has not responded to a request by congressional Democrats for an itemized accounting. In another textbook case of the types of conflict that framers sought to avoid, the Secret Service rented out space in Trump Tower. They’ve since withdrawn in early July, but only because of a dispute with management over the terms of their lease.²⁹

A CRIME AGAINST HUMANITY

Scientists have long warned that climate change poses a threat to humanity’s well-being and survival, and yet there are those who still insist on denying it. “There is no morally responsible way to downplay the dangers that negligent policies—expected to accelerate human-caused climate change—pose to humankind,” said Lawrence Torcello, an associate professor of moral and political philosophy at the University of Rochester. “There can be no greater crime against humanity than the foreseeable, and methodical, destruction of conditions that make human life possible … We will search in vain for a better reason to depose elected officials.”³⁰

I am not advocating impeachment over a policy difference, but rather saying that impeachment should take place only upon proof that President Trump’s retreat on climate change threatens the well-being and survival of humanity. As I previously explained, crimes against the environment as a form of genocide are well recognized in international law. Hurricanes Harvey, Irma, and Maria have inarguably brought the tragedies of climate change home to the American people, and yet, in their wakes, the statements issued by Trump have been contradictory. “Hurricane Irma is of epic proportion, perhaps bigger than we have ever seen,” Trump tweeted. But when asked to comment about recent storms and climate change, Trump contradicted himself, saying, “We’ve had bigger storms than this,” referring vaguely to storms that occurred in the 1930s and ’40s. Trump is “just not correct,” said meteorology professor Kerry Andrew Emanuel, an authority on hurricanes. Harvey soaked Texas and Louisiana with a record 51 inches of rainfall, and Irma was the most sustained Category 5 hurricane on record. The bill for these storms may top $200 billion, far exceeding the cost of any two storms in U.S. history. Following closely in their wake, Maria obliterated Puerto Rico and shattered historical precedent in the process. Never in recorded history had three Atlantic hurricanes of at least Category 4 force made landfall in a single year—until 2017.³¹

It would be false to claim that climate change creates hurricanes, but warmer water temperatures do strengthen hurricanes, thereby increasing their intensity, and rising sea levels make for more severe storm surges. This toxic mix is a recipe for the perfect catastrophic storm. “The most dangerous myth that we have bought into as a society is not the myth that climate isn’t changing or that humans aren’t responsible,” said Katharine Hayhoe, director of the Climate Science Center at Texas Tech University. “It’s the myth that ‘It doesn’t matter to me.’ And that’s why this is absolutely the time to be talking about the way climate change amplifies or exacerbates these natural events. This brings it home.”³²

And the effects of climate change are not limited to destructive storms; they’ve also given us droughts, heat waves, record floods, and runaway wildfires like those that have claimed dozens of lives in California. New studies carry dire warnings for our future. A September 2017 study by NASA researchers found that warming Antarctica waters recently led to a tripling of the amount of ice loss. The greater the ice melt, the more that sea levels will rise. A July 2017 study by the Union of Concerned Scientists warned that 90 American communities already face chronic flooding and that this number will likely rise to 170 by 2035 and to 490 by 2100. At century’s end, chronic flooding will afflict “40 percent of all oceanfront communities on the East and Gulf Coast,” including Cambridge, Massachusetts; Oakland, California; Miami and St. Petersburg, Florida; and four of the five boroughs of New York City. If, however, the world met the emission reduction goals of the Paris Accord, which Trump has repudiated, the great majority of U.S. communities (380 of 490) could avoid this grim, watery fate.³³

In June 2017, Trump followed through on his promise to withdraw the United States from the Paris climate accord. Rumors circulating in September that Trump might be reconsidering his decision sparked hope among the environmentally minded, but the White House was quick to deny them. Climate Advisers has quantified the “Trump Effect” from his retreat on climate change as equaling by 2025 an enormous annual increase of nearly half a gigaton of new greenhouse gas pollution.³⁴

ABUSE OF POWER

In a 1987 decision, the Supreme Court recognized that judicial contempt vindicated the authority of the courts and protected the separation of powers: “Thus, although proceedings in response to out-of-court contempts are sufficiently criminal in nature to warrant the imposition of many procedural protections, this does not mean that their prosecution can be undertaken only by the Executive Branch, and it should not obscure the fact that the limited purpose of such proceedings is to vindicate judicial authority.”³⁵ Since assuming office, Trump has exploited his presidential power in flagrant disregard for this concern. Recall the contentious case of former Arizona sheriff Joe Arpaio, who was found guilty by a federal judge of criminal contempt for disregarding a court order to cease targeting and detaining suspected undocumented immigrants based on racial profiling—a violation of the constitutional rights of Hispanics. Trump asked his Justice Department to dismiss the case and then pardoned Arpaio, prior to sentencing and without the standard Justice Department review. In the history of our nation, no other president has ever fully pardoned someone convicted of criminal contempt prior to sentencing.³⁶

Trump has continued his assault on the free press, even retweeting and then deleting a violent image of a train smashing into a man with the CNN logo covering his face. At a campaign rally, he abused the power of the presidency to call on NFL owners to fire any players who exercised their right of peaceful protest by kneeling during the playing of the National Anthem. Bluntly put, President Trump had shattered precedent by using the power of his office to say that “those people,” whom he called “son[s] of bitch[es],” oblivious or maybe not to the slur on their mothers, should lose their livelihood for a nonviolent, principled protest.³⁷

To date, Republican indifference to revelations of President Trump’s transgressions have blocked prospects for an impeachment investigation. Yet there remain so many real possibilities for a change of direction that the odds still favor an impeachment investigation no later than the beginning of 2019, but likely sooner than that. Early January 2019 marks the seating of a new Congress. An impeachment investigation would quickly follow if Democrats recapture the U.S. House of Representative in the 2018 midterm elections. To date that remains a long-shot result, but political calculations are rapidly changing in the era of Trump, and the party holding the White House typically loses dozens of seats in midterm contests. Midterm voters usually turn out to register their opposition to an incumbent president, especially one with the dismal approval ratings of Donald Trump. It would take only a net gain of some two dozen seats for Democrats to regain the House majority they held until the 2010 elections.

Even barring such a political turnabout, the Mueller investigation, although not directly targeting impeachment, could issue findings damning enough to jolt the two dozen House Republicans into joining with Democrats for a majority vote on an impeachment investigation. Prosecutors use such pressure on underlings to cut immunity deals for testimony against the person at the top of the chain, in this case President Donald Trump. If Mueller flips high Trump officials, and their testimonies against Trump are damning enough, it could inspire public demands for an impeachment investigation and shock Republicans into action.

The president could pardon anyone subject to federal prosecution. However, such pardons pose the risk of making the obstruction of justice case against him compelling enough for many Republicans. “Unlike the pardon of Arpaio, which is a despicable blow to the rule of law,” said law professor Peter Shane of Ohio State University, “pardoning anyone who might have been a co-conspirator in misconduct involving Trump himself would much more plausibly be impeachable.”³⁸

Similarly, Mueller may uncover direct “smoking gun” evidence of collusion through intercepted conversations between members of the Trump team and the Russians. We know that American intelligence agents have wiretapped Manafort’s phones pursuant to a warrant from the U.S. Federal Foreign Intelligence Surveillance Court, which requires probable cause that he was acting as a hostile foreign agent. Such evidence, like the Nixon tapes, could prove collusion from the mouths of the conspirators themselves and create unstoppable momentum for an impeachment investigation.³⁹

Lastly, Mueller could uncover proof of other felonies committed directly by Donald Trump. If he finds, for example, that the evidence supports allegations of obstruction of justice, money laundering, or tax evasion, even House Republicans would be hard-pressed to oppose an impeachment investigation. Mueller has been investigating obstruction and CNN has reported that “the IRS is now sharing information with special counsel Robert Mueller about key Trump campaign officials,” although it is unclear whether he has yet sought to obtain the president’s tax returns. The mills of special counsel investigations typically grind slowly, but Mueller seems intent on moving quickly. Bombshell revelations could occur by early 2018 or even sooner.⁴⁰

The final scenario turns on the self-interest of House Republicans. The first rule of politics for an incumbent officeholder is survival. If, by the summer of 2018, vulnerable Republicans come to believe that Trump threatens their reelection and see that the American people are demanding impeachment, enough of them could turn against the president and join with Democrats in support of an impeachment investigation.

Americans can only hope that, as in Watergate, patriotic Republicans will grasp the dire consequences of failing at least to investigate the impeachment of Donald Trump. Inaction would nullify constitutional safeguards against the corruption of presidential service through the pursuit of private profit. It would leave our democracy vulnerable to destruction by the undeterred foreign manipulation of elections abetted by the collusion of unscrupulous campaigns. Inaction would normalize the Orwellian doublethink of the Trump regime, in which reality no longer exists and lies become truth. It would validate the divisive politics that threaten America’s national unity by inflaming ethnic, racial, and religious prejudice.⁴¹

There are yet deeper issues raised by Donald Trump’s impeachment. In his first speech to the United Nations, on September 19, 2017, Trump mentioned the words “sovereignty” or “sovereign” no less than twenty-one times. “President delivered a speech to his alt-right, anti-globalist base from the podium of the United Nations General Assembly,” warned David Rothkopf, a visiting professor of international relations at Columbia University. What Trump failed to deliver was any remark whatsoever on the gravest external threat of all to American sovereignty: Russia’s interference in the 2016 election.⁴²

But if Russia’s interference in the election poses the gravest external threat to our nation and all it stands for, then it’s Trump who poses the gravest threat domestically and existentially—though even many of Trump’s critics miss the deepest menace of his presidency. Trump is neither a modern liberal nor a conservative, but that is not to say he’s a blank slate ideologically. Rather, he is a true reactionary who would turn back the clock to an era of xenophobic nationalism, a vision shared by the most backward-looking of Americans, the neo-Nazis and the white supremacists. Like Trump, these reactionaries yearn for a return to an America dominated by white men and guided by a narrow conception of traditional culture, an America insulated from the world by tariff walls, restrictive immigration quotas, and isolationist policies. “We are determined to take our country back,” announced David Duke from the far-right rally in Charlottesville, Virginia. “We are going to fulfill the promises of Donald Trump. That’s what we believed in. That’s why we voted for Donald Trump.”⁴³

At one point in time, extreme nationalism functioned as a foundation for building strong nation states across the world, but it cannot represent the future of the United States—not in our modern day. By the early twentieth century, unchecked insular nationalism had culminated in a worldwide depression, two catastrophic world wars, the collapse of multiple democracies, and the rise of dictatorships around the globe. In recognition of these tragedies, much of the world has moved toward the only viable future: one of gender and racial equality, global cooperation, free trade, common democratic values, and a united approach to fighting the catastrophic climate change that threatens human civilization. The number of worldwide democracies has soared—from just twelve in 1942 to more than one hundred by the end of the twentieth century—but democracy remains imperiled across the globe, endangered by the same reactionary forces that Trump now has unleashed in America.

Trump’s reactionary worldview is best symbolized by his commitment to erecting a wall along America’s southern borders—a throwback to the unsustainable walled cities of medieval times. People could not prosper or thrive in these conditions. They suffered due to polluted water, shortages of food and consumer goods, crumbling habitation, and deficient sanitation. They were ravaged by diseases, like smallpox, dysentery, and the catastrophic Black Death. For a short while, the walled cities may have provided protections, but as technology advanced—as it always does and will continue to do—the walls became useless for defense.

This vision of a walled-off nation is not populist, but profoundly elitist. It reeks of the fortress mentality of privileged Americans who, like Trump, have retreated into the shelter of gated enclaves—guarded versions of medieval castles. He hides out in Trump Tower, away from the very people who flock to his rallies. In the words of renowned late scholar Umberto Eco, “Such postmodern neomedieval Manhattan new castles as the Citicorp Center and Trump Tower [are] curious instances of a new feudalism, with their courts open to peasants and merchants and the well-protected high-level apartments reserved for lords.” In 1984, Trump even planned to build a literal “Trump Castle” in Manhattan, complete with battlements, a moat, and a drawbridge. The project’s architect said that the castle’s medieval-style defenses were “very Trumpish.” Potential tenants could buy into a castle residence for $1.5 million, but Trump’s dream project collapsed when the owners of the proposed site declined to participate.⁴⁴

Even if the president’s backers cannot access the upper reaches of Trump Tower, they can still hold out hope that his walled-off America will protect their threatened livelihoods and culture. “Protection,” Trump proclaimed in his inaugural address, with literal and figurative connotation, “will lead to great prosperity and strength.” Sadly, for the people who have bought into it as well as for those who have not, it’s an unfathomable vision. Trump cannot wall off the nation from the findings of science, from invasive pathogens like the Zika virus, or from the ravages of monster storms, chronic floods, runaway wildfires, and killer droughts. He cannot block out the technological advances that have rendered coal mines and old-style smokestack industries largely obsolete in the United States. He cannot insulate America from the global economy, or from progress that’s well underway. And Trump cannot re-create a culturally uniform, white “pioneer stock” America through any amount of immigration restrictions or mass deportations; already, the demographic die is cast for a pluralist future.

Trump’s reactionary impulse is inevitably authoritarian, and it explains much of his overreach as president. Reactionism cannot withstand a democratic process broadly open to all voters in an increasingly pluralistic nation; it cannot withstand challenges to autocratic control over the flow of information and ideas. Hence the obsession with alleged voter fraud, the free press, and internal “leakers.” The future of America cannot, will not, be that of a walled-in nation, either literally or figuratively.