I’d offer the same advice to the House Judiciary Committee as it considers a resolution to define the substance and scope of its impeachment inquiry. The Judiciary Committee reportedly will focus on a wide range of topics, including four pillars: (1) involvement by Trump associates in Russian interference in the 2016 election, (2) Trump’s alleged role in illegal hush money payments to two women who claim they had affairs with him, (3) Trump’s alleged dangling of pardons to immigration officials who might break the law to get a border wall built and (4) Trump’s potential Emoluments Clause violations and use of the presidency for personal profit.
If you look at that list and wonder, “What’s the connective tissue?” the answer is simple: President Donald J. Trump. However, beyond the fact that all four areas touch on potential wrongdoing by Trump, they share little or nothing in common. There is no substantive through-line. The audience — Congress and the American public — will have its focus fragmented, and the committee will find itself trying to run in four (or more) directions at once.
Sure, Trump has opened many doors by his norm-defying — and potentially illegal — conduct. But, strategically, Democrats won’t get far if they try to tackle everything Trump may have done wrong all at once.
The Judiciary Committee should focus primarily on the issue of emoluments and Trump’s alleged use of the presidency for personal enrichment. First, the notion of elected officials using public office to line their own pockets carries visceral appeal; people care and will not be apt to simply brush it aside. The Constitution prohibits a president from receiving any income or gift (beyond his regular government salary) from a foreign government, the US government or any state. And it is inherently offensive to fundamental notions of democracy for a president to profit from his office. Even Trump’s ideological supporters will have a hard time justifying profiteering.
Second, the proof looks strong, and the pattern is clear. Just in the past few weeks, we have seen Trump stumping for, and receiving, official business at his private properties. Trump openly contemplated hosting the next G7 summit at his own property in Florida. (Trump claimed other world leaders love the hotel’s location and “we haven’t found anything that’s even close to competing with it.”) Attorney General William Barr will reportedly spend $30,000 of personal money to throw a private holiday bash at a Trump hotel in Washington, DC. (The Justice Department stated that Barr received internal ethical clearance and tried to book two other hotels first). Vice President Mike Pence and his official entourage stayed at Trump’s resort in Doonbeg, Ireland, over 180 miles away from Dublin, where Pence was to meet government officials. (Pence claimed the choice was motivated by convenience). And Air Force crew members reportedly patronized a Trump resort in Scotland during refueling layovers, despite cheaper options available nearby. (Though Trump tweeted
that the Air Force’s use of the resort “HAS NOTHING TO DO WITH ME,” the New York Times reports he had an arrangement with the local airport designed to increase usage of the airport and his resort. Meanwhile, military officials defended the stay as within military guidelines.) Now, one incident could be a fluke or mistake; two gets harder to explain; and three looks like a pattern.
Third, the issue of emoluments and personal enrichment is new. Trump and his defenders have claimed that special counsel Robert Mueller’s investigation is over, and Congress merely wants a “do over.
” While Trump’s claim rests on a mischaracterization of Mueller’s conclusions — Trump has repeatedly claimed
“No Collusion and No Obstruction,” while Mueller concluded neither — Mueller’s findings have thus far not swayed a majority of Americans to favor impeachment and removal from office. But the personal enrichment issue is different, and Trump and his supporters cannot credibly claim that the issue already has been addressed.
Through the sheer breadth of his conduct, Trump has made the job of imposing accountability a difficult one. Now the House Judiciary Committee is showing a renewed sense of urgency in pushing forward its impeachment investigation. It will do well to pair that drive with a strategic focus designed to expose the misconduct most likely to resonate with the American public.
Now, your questions
Diane, Minnesota: If Trump is found to have violated the Emoluments Clause, what happens next? What is the remedy?
While the Constitution defines the term “emoluments,” it does not provide any specific remedy for a violation.
There is no criminal law punishing violations of the Emoluments Clause. Congress would need to pass a new statute (and the President would need to sign it) to create a new emoluments-related crime. If, however, prosecutors could show that a president received money from a foreign or domestic government entity in exchange for a promise of some official action — and no such evidence is currently known — then existing criminal bribery laws could apply.
There is civil litigation pending in federal courts over whether Trump has violated the Emoluments Clause, but it is unclear what remedy a court would have authority to impose. It is unlikely that a court could or would order Trump to forfeit the presidency, or that such an order would be enforceable. More likely, a court would order Trump to forfeit any profits he has earned during his presidency and possibly to divest his private interest in properties generating revenue in violation of the Emoluments Clause — though such an order would break new ground and likely end up before the US Supreme Court.
Apart from the courts, Congress has the power to investigate potential Emoluments Clause violations and to impeach. Indeed, the House Judiciary Committee will include potential Emoluments Clause violations in its expanding impeachment investigation. Whether the House takes meaningful action beyond an investigation and proceeds to impeachment is, of course, a separate question.
Jeff, Colorado: How would an impeachment inquiry actually work, and would such inquiry help House Democrats get witnesses and documents without as many roadblocks?
The House Judiciary Committee’s resolution defines not only the substantive scope of an impeachment inquiry but also its governing procedures. The resolution reportedly would allow the committee either to handle hearings as a full committee, or to designate certain issues to smaller, more efficient sub-committees. The resolution also would permit committee lawyers for both parties to examine witnesses directly, after committee members themselves have finished. And the resolution permits attorneys for the President to file written responses to the committee, and potentially to participate in live hearings.
Do not expect the White House to play along. Thus far, the White House has followed Trump’s “We’re fighting all the subpoenas” battle cry, contesting subpoenas on key witnesses, including former White House counsel Don McGahn, former White House communications director Hope Hicks and former White House aide Annie Donaldson — and fighting to prevent the House from obtaining grand jury materials from Mueller’s investigation. Count on the White House continuing to contest House subpoenas, and potentially the House’s proposed impeachment procedures.
Approval of a formal resolution governing an impeachment inquiry should help House Democrats in court. Courts considering whether to enforce contested subpoenas will look to the House’s need for the disputed information, as in the ongoing McGahn lawsuit. If House Democrats can tell a court, essentially, “We need this information because it relates to an ongoing impeachment inquiry, which has been approved by a resolution,” that is a stronger claim than the committee saying it might consider impeachment in some unknown format at some point in the future. The more definitive House Democrats can be in court about impeachment, the stronger their legal position will be.
Chris, Texas: The Justice Department Office of the Inspector General faulted former FBI Director James Comey for his handling of his own memos about his conversations with Trump. But given that Comey believed that the chain of command within the Justice Department may have been compromised, what was he supposed to do?
The Inspector General found that Comey broke FBI rules by, among other things, providing sensitive information about an ongoing criminal investigation to a friend outside the Justice Department, so that friend could then give the memos to the media. According to the report, Comey claimed that he felt he was doing the right thing by exposing Trump’s efforts to obtain a loyalty pledge and to shut down the investigation of former National Security Adviser Michael Flynn.
The problem is that Comey had various other avenues available to him within established FBI rules to report and expose Trump’s improper requests. Comey could have notified the appropriate leaders of the Justice Department. Perhaps Comey felt some of the Department’s leaders (such as then-Attorney General Jeff Sessions or then-Deputy Attorney General Rod Rosenstein) were compromised, but, at a minimum, he could have gone to the next-highest ranking official. Or, as the report notes, Comey could have gone to the independent Justice Department inspector general, to the Justice Department Office of Professional Responsibility, to Congress or even directly to the public, without disclosing sensitive information. Comey had plenty of options available within the rules of the very FBI that he led, but he simply chose to do it his own preferred way instead.
Three questions to watch
1) Will former Trump campaign manager Corey Lewandowski’s congressional testimony on September 17 provide new information about any Trump efforts to obstruct justice by pressing then-Attorney General Jeff Sessions to limit Mueller’s probe, or will Lewandowski defend Trump?
2) Will actress Felicity Huffman be sentenced to prison time in the college admissions bribery case?
3) Will Michael Flynn’s strategy to defy a House subpoena backfire on him in his still-pending criminal case by antagonizing prosecutors and the judge?