Impeachment watch: LA Times editorial board draws a line in the sand

Drawing a line in the sand (Lars Plougmann/Flickr)

Where do you draw the line on what is an impeachable offense? I suggested on Wednesday that members of Congress be pressed to draw their lines in the sand, publicly and unequivocally.

Newspaper editorial boards and opinion columnists could also help clarify things by saying what they think constitutes treason, bribery, or other high crimes and misdemeanors.

To its credit, the Los Angeles Times editorial board drew just such a line in the sand on Friday.

The Times called Trump’s statement that a pardon for his former campaign chairman Paul Manafort is “not off the table” an alarming escalation in his efforts to undermine the rule of law.

“If Trump is rash enough to actually grant a pardon to Manafort or to others who have been caught up in Mueller’s dragnet,” the TImes wrote, “that should immediately trigger an impeachment investigation by the House of Representatives.”

That’s considerably more specific – and meaningful – than most major editorial boards have gotten so far, from what I’ve seen.

In a landmark editorial in April, the New York Times drew a  red line — but didn’t explicitly call for impeachment if it were crossed.

The TImes editorial board advised lawmakers to be prepared for the possibility that Trump might fire special counsel Robert Mueller, “because if and when it comes to pass, they will suddenly find themselves on the edge of an abyss, with the Constitution in their hands.”

There were grave words about how “history will come calling ” and “it will be up to Congress to affirm the rule of law, the separation of powers and the American constitutional order.”

But the Times’s choice of euphemisms, rather than the word itself, was a head-scratcher. Did it mean the Times does not necessarily support impeachment in that circumstance? Or did the authors simply avoid the word because they were squeamish?

A few months later, the Times advised newly victorious House Democrats in November to “Avoid the ‘I’ word for now” [my italics]:

Impeachment is neither a sensible nor a winning issue to open with. Even many Americans who dislike Mr. Trump will, absent overwhelming evidence of impeachable offenses, balk at efforts to remove a sitting president.

The “for now” word choice might suggest that the Times thinks impeachment is an inevitability. But the conditions the Times set were vague, and came with a big loophole:

Democrats would do well to wait and see if the investigation by the special counsel, Robert Mueller, turns up high crimes and misdemeanors before deciding whether to pursue the painful and divisive path of impeachment. If so, they’ll want to bring along at least some of their Republican colleagues.

The Washington Post editorial board, responding to rumors in June 2017 that Trump wanted to fire Mueller, first went out of its way to register its distaste for the idea of impeachment, then allowed that there might be a case for it:

We have viewed much of the talk to date about impeachment as overheated. But firing Mr. Mueller would, more than anything else the president has done in office, firm up a case that Mr. Trump is obstructing justice.

In October 2017, the Post editorial board argued that there was no need for Congress to pass legislation to protect the special counsel, as:

If Congress feels that it would be unacceptable for the president to dismiss the special counsel investigating him, it can respond to such an act with a mechanism already available: impeachment.

Not exactly a ringing endorsement.

The USA Today editorial board called on Congress to censure Trump after he asserted there were “very fine people” among the bigots and Nazis leading a march in Charlottesville. But, it noted:

Censure is not impeachment. Whether that’s appropriate will likely depend on the outcome of special counsel Robert Mueller’s investigation into ties between Russia and the Trump campaign.

Opinion columnists are of course considerably more varied and excitable than editorial boards.

The latest offering from them about impeachment comes from Bloomberg opinion columnist Jonathan Bernstein, who argues that Trump’s disdain for the rule of law makes him worse than former President Richard Nixon:

Nixon at least pretended that the law applied to him; he just lied about following it. Trump expresses contempt for the rule of law every day — some days, he shouts it from the mountaintops. That attitude, more than any of the specifics of the Russia probe or the obstruction investigation, is why this is such a malignant presidency. And why, unfortunately, the House may eventually have no choice but to act.”

Bernstein argues that Trump has done enough to justify impeachment, but not enough to demand it. Yet.

“Trump seems determined to force the issue with his flat-out contempt for the rule of law,” Bernstein writes, citing:

  • His attacks on Mueller.
  • His collaboration with Manafort behind Mueller’s back.
  • His public hinting about a pardon.
  • His installation of a loyalist as attorney general, without Senate confirmation.
  • His defiance of constitutional prohibitions on emoluments.
  • His frequent suggestion that his political opponents should be imprisoned.

On MSNBC’s “All In” with Chris Hayes, Georgetown University constitutional law professor Neal Katyal said Thursday night that the latest revelations may leave Democrats no choice.

“Even if the Democrats don’t want to do it – impeachment — they almost are going to have to look at it very, very seriously now,” he said.

Katyal said the fact that Russian officials knew Trump was lying when he denied contacts with them gave them leverage over him. “We as Americans are only learning about it today, but the Russians have known about it for two years,” Katyal said. “This is a matter about the national security of the United States.”

Katyal is right, lawyer and Harper’s Magazine contributor Scott Horton wrote on Facebook:

The question of impeachment process is not about what is politically convenient, but what is constitutionally required. The developments of the last 72 hours suggest that the House will need to take up the issue of impeachment and convene hearings to review the possible charges and facts … even if a conviction in the senate seems politically blocked. I am not sure where this process leads, but I no longer see its initiation as avoidable.

But it’s not up to opinion columnists

It’s up to this man: incoming House Judiciary Committee Chairman Jerry Nadler, who the New York Times profiles today.

Reflecting the current position of other House leaders, Nadler appears utterly conflicted about how to proceed. On the one hand, the Times reports:

Mr. Nadler… insists that some of Mr. Trump’s supporters would have to be with him before he moved forward with impeachment.

On the other:

Mr. Nadler already appears to have all but given up on the idea that he would be able to convince Republicans of any presidential wrongdoing.

And while Nadler “has said explicitly that he will wait for Mr. Mueller to finish his work before seriously considering a remedy like impeachment,” the Times notes that he has also “begun poring over texts on the subject.” So who knows?

Federal workers: Do not send this column to your coworkers

An advisory from the Office of Special Counsel, which enforces the Hatch Act, notified federal employees yesterday that advocating for or against impeachment – or using variations of the word “resist” in that context – is now considered illegal “political activity.”

As Charlie Savage reports in the New York Times, it is “a pronouncement that legal specialists say breaks new ground, and that some criticized as going too far.

See previous Impeachment watch items. And please consider making a donation to White House Watch.

Trump threatens to use declassification power to beat back Democratic investigations

New York Post cover.

Declassifying documents for political gain is one of the more loathsome modern presidential norms. It’s typically done covertly. (See, e.g. Bush/Cheney after the Iraq war.)

But by publicly threatening to do it – as revenge(!) with specific political opponents as his targets(!!) – Donald Trump is profoundly shattering even that sordid precedent.

And for those of us keeping track of presidential practices that Trump has shown need fixing after he’s gone, it’s time to add abuse of classification authority to the list.

Trump’s threat came in an astonishingly brash interview with the New York Post on Wednesday, which garnered the most attention for Trump’s essentially dangling a pardon in front of Paul Manafort, his former campaign manager turned target and witness for special counsel Robert Mueller.

The day after Democrats won the House, Trump warned them that if they started investigating him, “then it’s just — all it is, is a warlike posture.”

He expanded on that on Tuesday. “If they go down the presidential harassment track, if they want go and harass the president and the administration, I think that would be the best thing that would happen to me. I’m a counter-puncher and I will hit them so hard they’d never been hit like that,” he told the New York Post.

According to the Post, Trump “said he could declassify FISA warrant applications and other documents from Robert Mueller’s probe — and predicted the disclosure would expose the FBI, the Justice Department and the Clinton campaign as being in cahoots to set him up.”

Trump’s conclusion: “I think that would help my campaign. If they want to play tough, I will do it. They will see how devastating those pages are.”

Steven Aftergood, who writes the Secrecy News blog for the Federation of American Scientists, called the comments outrageous.

“There has always been a political dimension to the classification and declassification process, which empowers the classifiers and leaves others at a disadvantage,” Aftergood said in an email. “But here the President is talking about weaponizing classification and using it to threaten and extort his political opponents. Amazing. It would make for an entertaining satire, but as actual national policy it is really hideous.”

It could also be an empty threat. There is no reason to think there are any documents that would indicate misconduct by Democrats. When Republicans called attention to former FBI official Peter Strzok, in an attempt to expose how  anti-Trump bias had tainted the Russia investigation, it backfired.

Trump has talked about releasing classified documents aimed at embarrassing Democrats before, going so far as actually directing the FBI and others two months ago to release some. He quickly backtracked under enormous pressure from the intelligence community.

Trump told the New York Post that he took White House lawyer Emmet Flood’s advice on the timing. “He didn’t want me to do it yet, because I can save it,” Trump said. Now he can wait until the Democrats fire first, he said.  “It’s much more powerful if I do it then,” Trump said, “because if we had done it already, it would already be yesterday’s news.”

Donald Trump was never prepared to withstand this kind of scrutiny

Remember this?
The mind-shattering nature of Donald Trump’s election victory in November 2016 makes it easy to forget that right up until the end, no one – least of all Donald Trump – expected he was actually going to win.

But that explains so much of what we’re seeing play out in special counsel Robert Mueller’s investigation.

Trump never anticipated the kind of scrutiny he would get as president. During the campaign, he bobbed and weaved and distracted and made for such great television – and seemed like such a clown to most of the establishment media — that he didn’t even get the amount of journalistic scrutiny you would expect of a major presidential candidate.

He was entirely unprepared for the kind of digging into his past business practices that he would encounter as president. And he sure as hell wasn’t prepared for Robert Mueller.

Michael Wolff wrote in Fire and Fury (excerpted in New York Magazine) about Trump’s true intentions:

His ultimate goal, after all, had never been to win. “I can be the most famous man in the world,” he had told his aide Sam Nunberg at the outset of the race. His longtime friend Roger Ailes, the former head of Fox News, liked to say that if you want a career in television, first run for president. Now Trump, encouraged by Ailes, was floating rumors about a Trump network. It was a great future. He would come out of this campaign, Trump assured Ailes, with a far more powerful brand and untold opportunities.

He did it to promote his brand – and maybe sell a few steaks while he was at it.

He did not run a serious campaign. He did not have serious advisers. He surrounded himself with cranks and crooks. He effectively had no transition plan. He refused to release his tax returns. He kept control of his company – and kept making deals.

Getting elected was a disaster all around.

Trump offered reporters a rare insight into his thinking this morning, in response to questions about his former lawyer Michael Cohen’s admission that he and Trump engaged in negotiations to build a tower in Moscow well into the campaign, contrary to their prior public statements.

“There was a good chance that I wouldn’t have won, in which case I would have gotten back into the business, and why should I lose lots of opportunities?” he asked.

“My focus was running for president,” he said. “But when I run for president, that doesn’t mean I’m not allowed to do business. I was doing a lot of different things when I was running. After I won, obviously I don’t do business, from January 20… which is the following year. But more importantly, I ran a business.”

More importantly, he ran a business. Right up until Inauguration Day.

As for the Moscow deal, Trump said: “I decided not to do it. The primary reason — there could have been other reasons – but the primary reason, it was very simple, is I was focused on running for president. There would be nothing wrong if I did do it….

“I was allowed to do whatever I wanted during the campaign. I was running my business — a lot of different things — during the campaign.”

And keep in mind that while we are trying to figure out what Mueller has discovered, there’s one person who knows full well what he’s likely to dig up, and that’s Donald Trump.

Some of his prior misconduct may have seemed like ancient history. But he knew that right up to and even during the campaign, he had made any number of shady deals with foreign banks, foreign oligarchs and foreign governments. Some of his corruption was even in plain sight: his entire luxury real-estate business was fueled by money-laundering. He knew that once he became president, his various business partners — quite possibly including Russian oligarchs and Vladimir Putin himself — had leverage over him.

And then of course there’s the question of whether he knew about Russian interference in the election.

So imagine what is going through his mind right now. Ever since his election, he has feared and anticipated greater scrutiny of his past. When Mueller was appointed special counsel in May 2017, Trump realized he faced an existential threat. The last 18 months have been a protracted period of waiting for the boom to drop.

As priorities go, governing is a distant second. Survival is job one.

The most obvious “tell” is Trump’s obsession with demonizing the news media and maligning Mueller and his team – trying to discredit the messenger

There are signs here and there of how Trump’s world will fall apart. Trump’s longtime fixer, Michael Cohen, pled guilty in August to making illegal payments to Trump’s mistresses — a crime in which Trump was an unindicted co-conspirator. The latest news is that Cohen has evidently confirmed that Trump was trying to make deals in Russia well into his campaign.

No one can say precisely what will happen next, or when. But at some point, Mueller will complete his investigation and his findings will make their way to the House Judiciary Committee. As I wrote yesterday, it’s essential that members of Congress declare – right now – what they consider an impeachable offense, so they can’t wriggle away when Mueller spills.

The gravest concern is that Trump will find some new way to distract the media and the nation from his undoing. As psychoanalyst Justin Frank, author of Trump on the Couch, puts it, terrifyingly: “Which prospect is likely more frightening to Donald Trump: revealing his tax returns or starting a nuclear war?”

It’s just a matter of time — weeks, months, or even possibly years — before Act III begins. It will be Trump’s downfall. The only question is what he’ll take down with him.

[This story has been updated with quotes from Trump since its initial publication.]

How is that not an impeachable offense?

House vote on Dec. 19, 1998, passing the first of two articles of impeachment against Bill Clinton.
With the House passing to Democratic control and special counsel Robert Mueller getting closer to going public with the results of his investigation, the eventual impeachment of Donald Trump is a distinct possibility.

To political journalists at most major news organizations, however, impeachment is barely worth discussing — and even then, mostly in the context of whether it’s politically feasible, or politically desirable, how it polls, and who the winners and losers would be.

But right now – before Mueller tells us what he’s found out – the media should be abuzz with attempts to establish some baselines about what reasonably constitutes an impeachable offense.

Yes, of course Gerald Ford was technically correct when he said that “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”

But in the abstract, at least, there ought to be some consensus – or at least some coherent schools of thought – about what can reasonably be said to constitute treason, bribery, or other high crimes and misdemeanors.

Rather than asking Democratic members of Congress whether they think impeachment is politically savvy,  we should be asking them whether they agree with, say, Watergate veteran Elizabeth Holtzman‘s conclusion that by continuing to operate his businesses, Trump has repeatedly violated the Constitution’s emoluments clause “and possibly the ban on bribery as well.” Or whether they agree, at least in principle, with any of the various draft articles of impeachment here, here, here, or here. (Got any others? Email them to me.)

To the extent that members acknowledge that something Trump has done – like firing the FBI director, or taking children from their mothers at the border, or using active-duty troops to score political points — amounts to an impeachable offense, then the next, obvious question is why are they not impeaching him now, not: would they consider it in the future?

Then again, presumptive House Speaker Nancy Pelosi has essentially declared that impeachment is up to the Republicans. “If the evidence from Mueller is compelling, it should be compelling for Republicans as well, and that may be a moment of truth. But that’s not where we are,” she said in an interview with the New York Times Magazine.

So rather than asking Republican members of Congress about impeaching Trump, we should be getting them to say what they themselves consider impeachable offenses – arguably locking them in, when and if Mueller can prove they were committed.

These are straightforward yes-or-no questions:

  • If a president is found to have solicited or knowingly accepted help from a foreign government to influence an American election, isn’t that an impeachable offense?
  • If a president fires a special prosecutor investigating him, isn’t that an impeachable offense?
  • If a president directly orders the Justice Department to prosecute his political rivals, isn’t that an impeachable offense?
  • If a president pardons himself, isn’t that an impeachable offense?
  • If a president promises pardons to potential witnesses against him, isn’t that an impeachable offense?

And, bonus essay question:

  • What level of presidential lying to you consider an impeachable offense?

Keep in mind: Even Trump’s own White House lawyers felt that Trump would likely be impeached if he ordered the Justice Department to prosecute Hillary Clinton and James Comey.

This is not just liberal crazy-talk.

Former Obama DOJ official Harry Litman recently wrote in the Los Angeles Times that Mueller is most likely to file charges involving criminal conspiracies. “Charges, in other words, that not even the most ardent Trump die-hard could trivialize,” he wrote.

But couldn’t they? It would be harder, certainly, if they were already on the record saying yes, that would be too much, even for us.

Ideally, every member of Congress would be forced to go on the record now, clearly stating what they consider an impeachable offense. This would have all sorts of advantages.

It would help establish, for better or for worse, what Congress considers a punishable abuse of power.

And if you look at the reality, rather than the politics, it’s actually hard to argue that Trump hasn’t already conducted any number of impeachable offenses.

So for most Democrats, it would establish a threshold beyond which there would be no excuse not to proceed with impeachment proceedings — other than cravenness or pure politics. It might even force them to acknowledge that the threshold, by any historically normal reckoning, has already been reached and exceeded.

And Republicans would have to choose between publicly sanctioning obviously impeachable conduct – like helping a foreign government influence an American election – and saying that in this particular case, the rules don’t apply.

So, regardless of whether you think impeachment is politically feasible, or politically desirable, how it polls, and who the winners and losers would be, discussing impeachment – in fact, constantly discussing impeachment, and using impeachable offenses as a metric in measuring Trump’s day-to-day conduct – is a powerful way to avoid normalizing this very abnormal presidency.

See previous Impeachment watch items. And please consider making a donation to White House Watch.