As the Trump impeachment process gained steam during the past year I perused two scholarly works devoted to explaining precisely what the Constitution provides should Congress should decide to impeach and then remove a President from office. Years ago I’d read and reviewed Raul Berger’s Government by Judiciary: The Transformation of the Fourteenth Amendment and commended the depth and perspicuity of its analysis. Knowing he’d written Impeachment: The Constitutional Problems (Cambridge: Harvard University Press, c. 1973), I acquired a copy and found it to be, in the words of Arthur M. Schlesinger Jr., “an admirable and powerful work . . . reliable and illuminating.” After devoting many pages to English legal history, demonstrating why the British Parliament had developed the process of impeachment, Berger (a Harvard Law School professor) showed how America’s Founders incorporated the process into the Constitution. Committed to an originalist position, Berger sought to follow the Founders’ injunction and primarily understand the Constitution by considering the explanations of those who actually wrote it. He especially sought to show what “treason, bribery, and other high crimes and misdemeanors” meant in 1787. These terms did not necessarily mean criminal behavior, for as Justice Joseph Story (an associate of Chief Justice John Marshall) said, three decades later, impeachment is: “‘a proceeding purely of a political nature. It is not so much designed to punish an offender as to secure the state against gross official misdemeanors. It touches neither his person nor his property, but simply divests him of his political capacity’” (p. 84). However, the Founders were determined to preserve the balance of powers they deemed essential for the republic and were especially concerned that the legislative branch might become dictatorial. “Nothing is clearer than the intention of the Founders to repudiate and reject ‘legislative omnipotence’” (p. 273).
Though impeachment is surely a political recourse, the Founders said it should be rarely used and then only for demonstrably egregious offenses. Thus, though the House of Representatives could draft articles of impeachment, it was left to the Senate to decide whether or not to remove a President. As Alexander Hamilton explained, this was ‘because what other body would be likely . . . to preserve, unwed and uninfluenced, the necessary impartiality between an individual accused, and the representatives of the people, his accuser.’ The senate was made judge, not in order to lessen the guarantees, but to insure that the accused would not be crushed by the oppressive weight of the House of Representatives. The President, no less than the lowliest citizen, is entitled to the protection of due process, and the essence of due process is fair play’” (p. 277). In accord with the English tradition, rooted in the Magna Carta, due process and fair play were due everyone.
When Berger wrote his book, only once in American history had a president been impeached—Andrew Johnson, who had defied a law he considered unconstitutional. Devoting considerable attention to that event, Berger declared the effort by Radical Republicans to remove a President with whom they disagreed overtly spurious. It serves as a historical reminder of “a gross abuse of the impeachment process, an attempt to punish the President for differing with and obstructing the policy of Congress. . . . . It undermined the separation of powers and constituted a long stride toward the very ‘legislative tyranny’ feared and fenced in by the Founders” (p. 308-309).
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Cass Sunstein is a Harvard Law School professor who recently published Impeachment: A Citizen’s Guide (New York: Penguin Publishing Group, c. 2019, Kindle Edition). Though issued amidst the clamor for President Trump’s impeachment, the book is “designed to answer more enduring questions, including: Why does the U.S. Constitution include an impeachment mechanism? What’s a ‘high crime or misdemeanor’? How does impeachment work? Is impeachment a question of law or politics?” (p. xiv). As a young man Sunstein had studied the impeachment endeavors targeting President Richard Nixon. Two decades later, he was brought to Washington as a distinguished professor to testify before Congress during the Bill Clinton hearings, trying to explain the “high crimes and misdemeanors” phrase in the Constitution. He also worked within the Clinton White House, preparing to defend the president when he was brought to trial before the Senate. Sunstein now seeks to take an impartial stance, intent on celebrating “the majesty, and the mystery, of impeachment under the U.S. Constitution” (p. 15).
Rightly interpreting the Constitution, of course, means different things to different folks! Justices such as the late Thurgood Marshall looked at it as a “living document” endlessly malleable in the hands of judges who install such things as abortion and same-sex marriage as constitutional rights. Others, such as Antonin Scalia, took an “originalist” view and tried to come to conclusions based upon what the Founders intended and take history as our surest guide. On most issues, Sunstein supports the “living document” approach, but when it comes to impeachment he actually thinks an “originalist” stance is best. In part this is because only two American presidents had been impeached and there are few judicial precedents to give the on-going tradition needed for a “living document” approach. Still more: the two actual impeachments (presidents Andrew Johnson and Bill Clinton) provide little guidance, for they both “were unconstitutional, even farcical—case studies in what the United States should avoid” (p. 86).
Sunstein concludes his treatise noting that Trump adversaries were calling for his impeachment as soon as he was elected. They were determined to do so and went looking for a reasons, ranging from tweets to insulting athletes to denying climate change. Whatever! “They did so not because they could point to impeachable offenses, but because they disliked him and they strongly opposed his policies.” Though Sunstein differs with the President on many issues, he finds him guilty of no impeachable offenses. So: “One of the original motivations for this book—not the driving force, but still—was to counteract what seemed to me to be reckless and irresponsible arguments for the impeachment of President Trump before his presidency even got started. My much larger goals were to correct some recurring misunderstandings of the impeachment clause, which have played a significant role in debates over impeachment at least since the 1990s” (p. 177).
And my guess is he would find the latest House of Representatives impeachment action sadly misguided—an offense to the majesty of the Constitution he reveres.
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During the past two years I’ve read a number of books devoted to the Democrats’ efforts to impeach and remove President Trump from office. These include: Compromised: How Money and Politics Drive FBI Corruption, by Seamus Bruner; The Russia Hoax: The Illicit Scheme to Clear Hillary Clinton and Frame Donald Trump, and its sequel, Witch Hunt: The Story of the Greatest Mass Delusion in American History, by Gregg Jarrett; The United States of Trump: How the President Really Sees America, by Bill O’Reiley; Resistance (At All Costs): How Trump Haters are Breaking America, by Kimberly Strassell; Ball of Collusion: The Plot to Rig an Election and Destroy a President, by Andrew McCarthy; Unmasked: Big Media’s War Against Trump, by Brent Bozell; Unfreedom of the Press, by Mark Levin; The Red Thread: A Search for Ideological Drivers Inside the Anti-Trump Conspiracy, by Diana West; and Spygate: The Attempted Sabotage of Donald Trump, by Dan Bongino. The authors include lawyers, journalists, and former federal prosecutors. They all tell essentially the same story, presenting evidence recently and almost totally confirmed in detail by the DOJ’s Inspector General’s report and by the FISA’s rebuke of the FBI’s duplicitous behavior. They critique the effort to remove President Trump from office, though they do so with considerable variety. Some authors—Andrew McCarthy, Gregg Barrett, and Mark Levin—provide meticulous documentation; others, such Kimberly Strassell are more journalistic in their approach. Some are Trump supporters; others mainly find the efforts to destroy him unfair and reprehensible. All together, however, they reveal an alarming event: a malicious effort to nullify a presidential election.
Rather than try to sum up these various treatises, I’ll examine in some detail one of the most recent and readable books: Lee Smith’s The Plot Against the President: The True Story of How Congressman Devin Nunes Uncovered the Biggest Political Scandal in U.S. History (New York: Center Street, c. 2019). Nunes, as chairman of the House Intelligence Committee, knows as much as any American could regarding the machinations of the intelligence community, for he was charged with their oversight. Smith, an experienced journalist who has worked for The Village Voice and The Weekly Standard, seeks “to present the known, as well as previously unreported, details in the anti-Trump operation. The basic outline of the story, however, is shockingly simple. Hillary Clinton’s campaign used political operatives and dirty cops to frame her opponent. When she lost, Obama officials employed the resources of the federal government to try to topple President Trump.” This endeavor was widely supported by the media, who “weren’t simply partisan or lazy or complicit” but were “an integral component” of the endeavor. “All in all, it is a tragic story about criminality, corruption, and a conspiracy of lies at the highest levels of important US institutions that were designed to keep the public safe, such as the FBI, and free, such as the press. But there is another story running parallel to that account, and that is a story about a small handful of Americans, public servants, who stood up, assumed responsibility, and did the right thing at a crucial time” (pp. 13-14).
The handful of heroes who did the right thing were Congressman Devin Nunes and the investigative staff he assembled which “uncovered the biggest political scandal in American history” (p. 14). (Contributing significantly to their work was Iowa’s Senator Chuck Grassley, Chairman of the Senate Judiciary Committee). Leading the investigation was Cash Patal, who had worked as a terrorism prosecutor at the Department of Justice (DOJ). He’d been outraged by FBI Director James Comey’s exoneration of Hillary Clinton. “‘He hijacked the Clinton investigation,’ he says. ‘That was not his call to make. You don’t go on TV and say, “I, the FBI director, am deciding what is a prosecutor’s decision.” And by the way, all my colleagues in the national security division, all truly apolitical, every one of us would have taken the Clinton case to a grand jury’” (p. 179). Patal had also became acquainted with some of the folks he would later investigate—Glenn Simpson, a journalist who had founded Fusion GPS, a firm known for doing “opposition research” (working for the 2012 Obama campaign looking for dirt on Mit Romney) that was hired by the Clinton campaign to find damaging information on Trump; Christopher Steele, a former British intelligence officer with some past Russian connections who often worked for the FBI; Bruce Ohr, a senior Justice Department official, and his wife Nellie, who did research for Simpson. These folks fed information to the FBI team (including deputy director Andrew McCabe, deputy assistant director for counterintelligence, agent Peter Strzok, and Lisa Page, McCabe’s special counsel) which orchestrated the “Crossfire Hurricane” investigation of the Trump campaign.
Early in 2016 they took aim at influential Trump advisors, including retired Lieutenant General Michael Flynn. He had gained renown for his significant work in military intelligence and was appointed by President Obama to head the Defense Intelligence Agency (DIA) in 2012. As a devoted reformer and outspoken critic, however, he quickly alienated establishment bureaucrats and offended Obama by challenging both the president’s refusal to release the documents captured in the Osama bin Laden raid and the Iran nuclear deal. Thus Flynn’s work for the White House ended within two years and he launched a consulting firm. He then became involved in the 2016 presidential campaign, advising Republican hopefuls such as Ben Carson, Carly Fiorena, and Donald Trump, because he “was willing to talk to anyone if it would help keep Hillary Clinton out of the White House” (p. 20).
Two days after the election, President Obama spent significant time defaming Flynn while talking with president-elect Trump. “Obama had allies throughout the intelligence community, hundreds of them. And they had their own reasons to go after Flynn. ‘Flynn was talking about remaking the NSC staff and getting rid of the Obama holdovers to put Trump’s people in there,’ says Nunes. ‘He was going to cut the NSC staff down to a third of its size under Obama.’ Even more significantly, Flynn was going to address the problems with the intelligence community as a whole. ‘He wanted to remake the entire IC,’ says Nunes. He had Trump’s ear. They were going to drain the Swamp” (p. 136). Flynn’s adversaries then launched a vicious and dishonest campaign to discredit and defame him, “erasing facts” and doctoring photographs in order to suggest the Trump team was aligned with the Kremlin. He would be the first of Trump’s appointees to be fired—within a few weeks of the inauguration. Trump thought this would end the Russia controversy, but: “‘He was getting bad advice from some of his advisers,’” says Nunes. ‘He didn’t understand that after they got Flynn, they’d have momentum. After Flynn went down, they believed they could get the president, too’” (p. 147).
Central to the plot against the president was what came to be known as the “Steele Dossier.” In April 2016, Hillary Clinton and the DNC “hired Fusion GPS to build a Trump-Russia echo chamber. Fusion GPS garnered more than $1 million to compile information about Trump’s ties to Russia and distribute it to the press. By the end of the spring, every major US media organization was involved in pushing the big story about the Republican candidate: Trump and his associates were tied to Russian and other former Soviet Bloc business interests. Fusion GPS was the Clinton campaign’s shadow war room—and subsequently became its dirty tricks operations center” (p. 42). Christopher Steele was recruited (and paid $168,000) to gather information on Trump’s Russian ties and proceeded to pen a number of unsubstantiated allegations and rumors. “What had started as an opposition research project that had turned up little of substance had transformed into a smear campaign” (p. 74). Thus the “Steele Dossier” became the main basis for the FBI’s appeal to the FISA court for permission to surveil suspected members of the Trump team. “But the dossier is not an ‘intelligence’ product. It’s a fiction, a literary forgery, populated with real characters, but who did not do or say the things attributed to them. And the dossier’s authors are not intelligence officers but journalists and academics accustomed to running smear campaigns and dirty tricks operations and lying” (p. 286).
The dossier mentioned Carter Page, a volunteer consultant on the periphery of the Trump campaign staff. A graduate of the Naval Academy with considerable knowledge of and contacts in Russia, Page had frequently worked with the CIA, providing information gained on some of his trips abroad. Though the Crossfire Hurricane group claimed he was a foreign agent, he’d actually helped the FBI locate Russian agents working in New York. (We now know the FBI actually altered a CIA document indicating Page had worked with the agency to say he had not worked for it!) The evidence cited by the FBI was little more than the Steele Dossier, as well as newspaper articles which were based upon Fusion GPS claims. Page had earlier left the Trump campaign, but the FBI wanted to uncover his past emails and find incriminating evidence. The claimed Page was paid involved in a deal which involved hundreds of millions of dollars. But he obviously didn’t have that kind of money and it could have easily been disproved had the FBI wanted to do so. “It was clear the story in the dossier was nonsense” (p. 183). What Crossfire Hurricane actually wanted was permission to surveil Page in order to get at Trump and, as Nunes says, “‘They were sure they were going to find something, the golden ticket’” (p. 98). But they found nothing! And they virtually destroyed an honorable man.
All of this took place before the 2016 presidential election, when Crossfire Hurricane assumed Hillary Clinton would be elected and their activities safely ignored. But when Trump was elected “the operation designed to undermine his campaign transformed. It became an instrument to bring down the commander in chief. The coup started almost immediately after the polls closed” (p. 103). On December 6, 2016, President Obama directed CIA director John Brennan to “review of all intelligence relating to Russia and the 2016 elections” (p. 106). Brennan almost immediately reported that the Russians had helped Trump win the election—and then leaked that information to a variety of friendly media outlets. Congressman Nunez immediately saw what was transpiring—an effort to destroy Trump. “‘I couldn’t have dreamed they’d be that dirty,’ says Nunes. ‘As soon as we saw they’d abused the FISA process, we opened up the investigation right away because the FISA issues bled into other matters, like how they started the whole investigation. It was all a setup.’ It was then he realized he’d come across the biggest political scandal in US history. ‘They used the intelligence services and surveillance programs against American citizens,’ he says. ‘They spied on a presidential campaign and put it under a counterintelligence investigation so they could close it off and no one else would see what they were doing. They leaked classified intelligence again and again to prosecute a campaign against a sitting president. Ninety percent of the press was with them, and the attorney general was out of the picture.’ That meant it was up to Nunes and his team to expose the hoax, get out the truth, and uphold the rule of law” (p. 172).
They found that when President Trump fired Director Comey, the acting director, Andrew McCabe, urged deputy attorney-general Rod Rosenstein to name a special counsel. Comey then leaked a story to a friend which was printed in the New York Times claiming Trump had urged him to “drop the Flynn investigation.” That story, said Rosenstein, justified the appointment of a special counsel—former FBI director Robert Mueller III. He assembled a dozen of anti-Trump prosecutors who did everything possible in the next two years to show how Russia supported Trump and enabled him to win the 2016 election. “‘It was a team of dirty cops,’ says Nunes. ‘Andrew Weissmann was the worst. He already had a history as a hard-core anti-Trump partisan.’” (p. 205). For these upper-echelon bureaucrats, “Trump wasn’t their president. And the America that had elected him was beneath contempt” (p. 199).
The Crossfire Hurricane group imagined themselves to be replicating the work of the heroic FBI “deep throat” agent who helped spark the resignation of Nixon. “‘They all wanted to become the next Deep Throat,’” says Nunes. And they benefited from “elite teams” of journalists ensconced in the Washington Post and New York Times whose articles largely shaped the media frenzy calling for Trump’s removal from office. The two papers’ staffs were awarded a joint Pulitzer Prize for “‘deeply sourced, relentlessly reported coverage in the public interest that dramatically furthered the nation’s understanding of Russian interference in the 2016 presidential election and its connections to the Trump campaign, the President-elect’s transition team and his eventual administration’” (p. 274). These bureaucrats and journalists envisioned a paper coup d’etat and knew, as Edward Luttwak says in Coup d’État: A Practical Handbook, that the media are essential: “‘Control over the mass media emanating from the political center will still be our most important weapon in establishing our authority after the coup’” (p. 193). “‘The anti-Trump operation,’ says Luttwak today, ‘was a very American coup, with TV denunciations by seemingly authoritative figures as a key instrument.’ The plot against Trump was a bureaucratic insurgency waged almost entirely through the printed word. It was the ‘Paper Coup’” (p. 193).
But after two years of investigating every lead, the Mueller Commission failed to establish any “Russian collusion” with the Trump campaign. There was a fully fraudulent endeavor to remove a president, and it failed. So, almost immediately the Democrats found another cause celebre—Trump’s phone call to Ukraine. Thus the beat of the impeachment drums goes on!