Sunday, November 18, 2018

The Watergate Blueprint for Impeaching Donald Trump

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The Watergate Blueprint for Impeaching Donald Trump

Elizabeth Holtzman
November 15, 2018
The Intercept

  WHEN DONALD TRUMP’S presidential election victory was announced in the early morning hours of November 9, 2016, like many Americans, I rubbed my eyes in disbelief and dismay. Two questions raced through my mind:

     What had become of America that a man so unfit, so small-minded, so mean-spirited could be elected? A man whose ethnic and racial bigotry had set the stage for his presidential run when he called Mexicans rapists and made racist birther attacks on President Barack Obama. Whose vulgarity and misogyny were laid bare in the Access Hollywood tape when he bragged about forcibly grabbing women by their genitals. Whose performance at pres­idential debates showed him not only flagrantly ill-informed, but manifestly unwilling to get informed.

   My second question was how much harm this man would do to America as its 45th president.
I have my answer now to the latter, less than two years after the election. President Trump has damaged American democracy far more than I would have guessed. He has relentlessly attacked the administration of jus­tice, in particular the investigation into a possible conspiracy with Russia regarding the 2016 presidential election, putting himself above the rule of law; he has failed to separate his personal business from the country’s, flout­ing the Constitution’s requirements; he has violated the constitutional rights of the people in separating children from parents at the Southwest border without due process of law; and he has refused to acknowledge Russia’s central role in interfering in our 2016 elections and to publicly lead a full-scale effort to protect against further interference. To cover up these misdeeds, moreover, he has flagrantly lied and assailed the press as an enemy of the people. These are “great and dangerous offenses” that the framers of our Constitution wanted to counteract and thwart. They provided a powerful remedy. Impeachment.

   Many tremble at the word, 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 Republican-controlled Senate to convict him even if the newly empowered Democratic majority in the House of Representatives votes to impeach. Just calling for an inquiry will be viewed as a Democratic Party attack on the head of another party, a kind of coup d’état. It’s easy to find reasons to be anxious.

  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. Thorough, fair, and above all bipartisan, the committee acted on solid evidence pre­sented in televised hearings that riveted the nation, handing us the blueprint for how impeachment can be successfully pursued today. In our 225 years of constitutional democracy, the Nixon impeachment process has proven to be the only presidential effort that worked. Though Nixon resigned — the only president ever to do so — two weeks after the committee’s impeachment vote, he did so to avoid the certainty of being impeached and removed from office. We became a better nation for having held the president accountable.

   All of which raises two further questions: Should we be considering the impeachment of President Donald J. Trump? Will we again become a better nation by pursuing that option? To answer, we need to set aside Trump’s unremitting attacks on the environment, on our close allies, on almost every program that Obama put into effect, including the Affordable Care Act, and any disagreements we have over policy, as well as any personal animus, and ascertain simply whether he has engaged in the kind of egregious conduct that would meet the constitutional standards for impeachment and removal from office.

   This means we have to focus sharply on his potentially impeachable offenses. In so doing, we will find it useful to compare them, when possible, to similar offenses by Nixon found to be impeachable by the House Judiciary Committee in 1974. Here is a list of some of Trump’s potentially impeachable offenses developed as of this writing:

   A possible interference with or obstruction of the administration of justice and an abuse of power. On May 9, 2017, Trump fired FBI Director James Comey, who was investigating both his national security adviser, Michael Flynn, and Russia’s ties to the Trump campaign in connection with influencing the 2016 presidential election. Two days later, Trump admitted to NBC’s Lester Holt that Comey’s firing had to do with “the Russia thing” — in other words, Trump acknowledged that he was trying to shut down the FBI investigation into his possible conspiracy with Russia. (Flynn has since pleaded guilty to lying to the FBI.)

  The Comey firing uncannily echoes Nixon’s firing of the special Watergate prosecutor for seeking highly damaging information about the president — a brazen defiance of the rule of law that triggered the start of impeachment proceedings against Nixon.Former FBI Director James Comey arrives to testify about President Donald Trump before a Senate Select Intelligence Committee hearing on June 8, 2017.

   A second possible interference with or obstruction of the administration of justice and an abuse of power. Trump has persistently and publicly attacked those heading the Russia investigation, including special counsel Robert S. Mueller III and Deputy Attorney General Rod Rosenstein, and has repeatedly condemned Attorney General Jeff Sessions for recusing himself, suggesting that he wants to fire any and all of them in order to get control of the Russia investigation. (He actually did give an order to fire Mueller.) The president’s firing of Sessions and replacement of him with Matthew Whitaker, an avowed critic of the investigation who has not recused himself from overseeing it, is the most recent — and possibly the most dangerous — assault on the investigation.

  A failure to take care that the laws are faithfully executed, as required by the Constitution. To try to deflect public concern about his possible role in con­spiring with Russia about the 2016 election and to undermine the legiti­macy of the investigation into that matter, Trump has persistently attacked the Russia investigation as a witch hunt and a hoax, even though 34 people either pleaded guilty or were indicted as a result of that investigation. The indictments included Russian agents who allegedly inter­fered with the 2016 election by manipulating social media, hacking into computers of the Democratic National Committee, targeting election machinery in various states, and using other methods.

   Similar behavior by Nixon became one of the grounds of the first article of impeachment against him. As part of the Watergate cover-up, Nixon was charged with making “false or misleading public statements for the purpose of deceiving the people of the United States.” This included Nixon’s claim that White House investigations had cleared everyone of any involvement with the break-in, for example, and that his aide H. R. Haldeman, who had perjured himself before the Senate Watergate Committee, had tes­tified accurately.

   A second failure to take care that the laws are faithfully executed, as required by the Constitution. Trump has failed to undertake his constitu­tionally mandated leadership role to protect our elections from further interference by the Russian government, including his continued refusal to acknowledge unequivocally Russia’s interference in 2016, despite the paramount importance of ensuring honest elections in our democracy. For example, cyber countermeasures were apparently undertaken starting in the summer of 2018, but without the president’s involvement. His continued hands-off approach has left too many Americans doubting the existence of Russian interference and failing to insist on robust government protective measures. In the absence of that protection, the Russians may renew the cyberattacks and other interference previously used against us.

   An abuse of power. He has used the power of his office to remove or threaten to remove the security clearances of people who criticized him or who he believed were associated with the Russia investigation or could be possible witnesses against him. A historical equivalent is Nixon’s creation of an “Enemies List” of anti-Vietnam War activists, whom he directed to be audited by the Internal Revenue Service in retaliation for their political positions — actions that formed part of an article of impeachment.

   A second abuse of power. He approved a lawless, ethnically based, and infinitely cruel policy of separating children from parents at the Southwest border, depriving both children and parents of their constitutional rights and subjecting them to horrific mental anguish that may result in long-term psy­chological damage, a policy that the courts struck down.

   An assault on our democratic values. He has systematically lied to the American people about government policies and actions, crippling their abil­ity to make sound judgments about the direction of their government.

   A violation of a specific constitutional prohibition. He has refused to sepa­rate himself from his business interests, which have received things of value from foreign and U.S. governments, ranging from Chinese trademarks to pay­ments for the use of his Washington hotel, suggesting that the presidency is open for business and that his personal business interests may influence his governmental decisions — all apparent violations of the emoluments clauses of the Constitution and possibly the ban on bribery as well. Though the House Judiciary Committee voted against an article of impeachment involv­ing Nixon’s receipt of emoluments from the federal government, notably in the form of improvements to his California and Florida properties, Trump’s business interests are far greater than Nixon’s, and Trump could have tried to cure the problem of foreign emoluments by getting con­gressional approval, which he has steadfastly refused to do.

   An effort to undermine a core democratic institution. He has repeatedly attacked the media as the enemy of the people (a term used in the Stalinist purges against untold thousands of innocent people ultimately killed by the Soviet regime), encouraging Americans to disregard what they see and hear in the press as “fake news.” Seriously undermining the free press hampers the public’s right to know, which in itself hurts a democracy.

   Nixon also attacked the press. He illegally ordered the wiretapping of journalists and placed a number of them on his Enemies List, targeting them for harassing IRS audits. Both actions formed a basis for Nixon’s impeachment.

   DONALD TRUMP IS a clear and present danger to our democracy. Whether it is his effort to impede and obstruct the investigations into Russian interference, his declining to protect our election system from Russian manipulation, his open hand to payments his businesses receive from foreign governments and domestically, or his assault on the rights of thousands of children at the border, the president’s misdeeds cast a wide net. They are ongoing, with no end in sight. And he continues to spin a web of incessant and brazen falsehoods, deceptions, and lies to disguise and conceal the misdeeds.

   In 1973, the country also faced a president run amok. Richard Nixon, whose campaign minions broke into the Watergate complex, orchestrated a vast, multipronged effort to stymie investigations into the burglary. Nixon engaged in other nefarious activities and abuses of power: He violated the rights of Americans though illegal wiretaps of journalists, an illegal break-in into a psychiatrist’s office for damaging information, an order for IRS audits of political opponents — the Enemies List — to name a few.

   Nixon’s cover-up was effective: It got him re-elected with one of the largest electoral margins in American history. Then, it began to unravel. Evidence harmful to him came to light, and, in a grandiose move of maximum presi­dential authority, he ordered the special prosecutor investigating him to be fired. That’s where the American people drew the line. They demanded that Congress take action, and it did. It started an inquiry, which resulted in a bipartisan vote for articles of impeachment, forcing Nixon to resign.

   It was in response to obstruction that the articles of impeachment against Nixon were adopted. Their message? Presidents cannot block, tam­per with, and destroy the machinery of justice that is aimed at them. If they do, it is at their peril. They face impeachment, removal from office, even imprisonment. But if we allow presidents to block, tamper with, and destroy the machinery of justice that is aimed at them, we do so at our peril. The rule of law will go up in smoke. We will enshrine two standards of justice, one for the powerful and one for everyone else. We will find ourselves on the road to tyranny.

  It is a road that we’re dangerously close to traveling today.

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  Nixon worked mightily to stop the institutions of justice from closing in on him and his associates. So has Trump. Not every aspect of Nixon’s impeachable offenses is replicated in Trump’s behavior. Still, there are astonishing and troublesome parallels, particularly in the Russia investigation, including Trump’s firing the FBI director (Nixon had the special Watergate prosecutor fired); Trump’s demanding that the recused attorney general resign and replacing him with an acting attorney general who is outspokenly hostile to the investigation and who has suggested ways of terminating it by such means as defunding it (Nixon tried to fire the special Watergate prosecutor, a more direct way of ending the investigation into himself); dangling pardon possibilities to those under investigation (Nixon did the same); making relentless and false attacks on the investigation and those conducting it (Nixon called for an end to the investigations and engaged in other attacks); and deceiving the public and Congress constantly and systematically (Nixon did that, too).

   Watergate started with burglars who used burglars’ tools to break into the Democratic National Committee headquarters at the Watergate Hotel complex in Washington, D.C. They were interfering in the 1972 presidential election. The investigation of Donald Trump started with the Russians’ using cyber tools to break into the DNC computer servers and interfere in the 2016 presidential election. We don’t know what the Watergate burglars were look­ing for. We don’t know what the Russians’ real objective was, or even the full impact of their interference. It may even have vaulted Donald Trump into the White House.

   But we do know that on July 27, 2016, Trump publicly called for Russian help in winning the election — and later repeatedly applauded WikiLeaks’ release of illegally hacked Clinton campaign emails. And we know that Russia gave him help — targeting, for example, Hillary Clinton’s personal office for the first time the day after Trump’s request and targeting 76 of her staffers as well.
Was the help coordinated with the Trump campaign or just coinciden­tal? If coordinated, then Trump has committed a high crime and misde­meanor of the gravest kind — working with a foreign power in violation of our campaign finance and other laws to get elected. It is impera­tive for Congress to ascertain the facts, and not leave us to speculate or with a secretly beholden president.

   Trump’s effort to block the investigation into his possible collusion with the Russians over the 2016 election on the face of it warrants an impeach­ment inquiry. It may well be that a full examination of his behavior will exonerate him, but, given the record of his tweets and his public statements, not to mention his firing of James Comey, it is more likely that his actions have been prompted by the impermissible and impeachable objec­tive of stopping the investigations before they find him out.
Trump’s misconduct does not stop with his repeated attempts to impede the Russia investigations. He has steadfastly refused to accept that Russia seriously interfered in our 2016 elections and to take a public role in developing and announcing plans to protect against further Russian attacks, failing to fulfill his central obli­gation as president to take care that the laws be faithfully executed. This failure, too, is related to his effort to impede the Russia investigation. If the American people, including his “base,” fully understood the seriousness and scope of the Russian attacks, they would demand effective measures from the president to stop them, but they also might question why Trump is calling the investigation a hoax when the Russians really attacked us, as our intelligence agencies, the Justice Department, grand juries, and private social media com­panies have found.

  The president has also defied and flouted the Constitution’s ban on emoluments on a very large scale, creating the appearance, if not the reality, of influence-peddling at the highest level of our government. This is another assault on our democracy.

   Finally, Trump’s heartless separation of thousands of children from parents on the Southwest border is an action that violates our Constitution’s deepest promises of due process and equal protection. The willingness to assault the Constitution by harming so many threatens all of us.

  Together, Trump’s actions are indicative of a president who has established a different standard of justice for himself — exactly the kind that we declared impermissible in Nixon’s articles of impeachment. He has done so at the expense of democracy. And he’s done so at his own peril.
There is a remedy — and I participated in it and lived through it and saw it work. The solution is what Congress, the courts, and the press used in dealing with Nixon in Watergate. It means imposing accountabil­ity and holding the president to the rule of law, as we did then.

  In Watergate, there was a criminal investigation and there were congres­sional inquiries, including an impeachment process. All were thorough and fair; all won the respect of the public. And together they re-established the public’s faith in the viability of our democracy and the Constitution.
No one, not even a president, is above the law. That is the lesson of Watergate, and it must continue to be the lesson today.

   Today we have the advantage of knowing what to do, of having the model for action — full-throated congressional inquiries, a bipartisan impeachment inquiry, and an investigation by Robert Mueller that proceeds without inter­ference until it is properly concluded. These are simple, realizable objectives.

  The American people can force action on this agenda as they did in response to presidential misconduct in Watergate. We have the power. We are still a democracy.

This article is adapted from the book “The Case for Impeaching Trump” by Elizabeth Holtzman.
Elizabeth Holtzman is a former four-term Democratic congresswoman from New York. She served on the House Judiciary Committee that investigated the role of President Richard M. Nixon in the Watergate scandal and voted to impeach him. Her accomplishments in Congress include bringing Nazi war criminals in the U.S. to justice, creating the bipartisan caucus of congresswomen, and co-authoring the first special prosecutor legislation and the 1980 Refugee Act. She was later elected Brooklyn district attorney and comptroller of New York City, the first woman to hold either office. Holtzman is a graduate of Harvard Law School and Radcliffe College and practices law in New York. 
She is a frequent speaker about political affairs on MSNBC and CNN and other major news networks, a well-published author in the New York Times and other media outlets, and the author of “The Impeachment of George W. Bush,” “Who Said it Would be Easy?” and “Cheating Justice.”

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