The US Presidency: Impeachment update

Michael D Goldhaber, IBA US Correspondent

The tone of the first public impeachment hearings was set on 12 November by Bill Taylor, the top US diplomat in Ukraine and a paragon of the bipartisan foreign policy establishment. With his earnest devotion to public service and warm solicitude for Ukrainian defenders of democracy, Taylor was slow to comprehend the President’s cynical game. The scales finally fell from Taylor’s eyes when – as it emerged in surprise testimony – the US Ambassador to the EU told Taylor’s staffer that Trump didn’t care about Ukraine, but only about the ‘Biden investigation’ the President demanded the Ukraine launch if it wished to receive military aid.

Although that EU Ambassador is a Trump donor, and no model diplomat, his testimony was most damaging of all. ‘Was there a quid pro quo?’ Gordon Sondland asked. ‘[T]he answer is yes.' Then, for good measure, Sondland appeared to remove any scope the President might have had for a defence, stating that he was operating 'on the President's orders.’

You need independent counsels, you need to protect the inspector generals, and you need to be able to prosecute a sitting President

Richard Painter
Chief White House ethics lawyer under President George W Bush

Meanwhile, Republicans on the House Intelligence Committee acted as if they were the President’s defence counsel rather than finders of fact. In wrapping up the first set of hearings on 21 November, National Security aide Fiona Hill chided them for accepting that ‘Ukraine—not Russia—attacked us in 2016.’ By parroting this bizarre theory, she noted, the President and his defenders were legitimising ‘a fictional narrative that has been perpetrated and propagated by the Russian security services themselves.’

Jared Stamell, who served as a Democratic counsel to the House Judiciary Committee during Watergate, recalls a less partisan era. Back in the 1970s, he and his Republican counterpart used to do each other’s work when one of them was on vacation. Amazingly, the signature question of the Watergate hearings – ‘What did the President know and when did he know it?’ – was posed by a Republican. No fewer than six Republicans on the House Judiciary Committee would vote to impeach their party’s President.

Looking back on Watergate, Stamell says that the underlying crime and the stonewalling are both worse today. ‘Nixon took the rights of the Presidency to an extreme,’ he says, ‘ – and Trump is going further.’ But the biggest difference is the timeline. In 1973 Congress began fact-finding during Nixon’s first 100 days, and took 15 months until impeachment. Today’s Congress aims to do it all in less than two months. The House Judiciary Committee convenes on 4 December, with the goal of drafting articles of impeachment and putting them to a vote by the full House of Representatives before the new year.

Richard Painter, who served as White House ethics chief under President George W Bush, says the evidence already proves that the President committed extortion. Even worse for the President, Painter sees clear proof of bribery (an offence the Constitution lists as a high crime or misdemeanour), and abuse of power (an offence established as impeachable in hoary Anglo-American precedents). If Democrats wish to keep their story simple – with one eye on the 2020 election and how impeachment proceedings are perceived by the American people – their bill of indictment will stop there.

But Senate Republicans reportedly aim to defend the President by refocusing the Senate trial on the fact that Vice President Joe Biden’s son, Hunter, accepted a lucrative board seat at a Ukrainian gas company under investigation for corruption while his father conducted regional diplomacy. Never mind that the Senators involved from both parties say Joe Biden only promoted anti-corruption efforts.

Stamell urges House Democrats to respond by probing the conflicts of Trump’s children and son-in-law in their international fashion, hotel and property businesses. Unlike Hunter Biden, they advise the White House on policy. Painter would go a step further. He argues that the President himself routinely accepts gifts from foreign nations through The Trump Organization. Violating the Constitution’s ‘emoluments’ clause is obviously impeachable, says Painter, so putting emoluments in the House indictment is the right thing to do legally. It’s also smart strategy, he says, as it would decisively open the door to probing the Trump family’s business conflicts at the Senate trial itself.

When it comes to Russia, Democratic leaders calculated last spring that the story was too complex to sell the public as the sole basis for impeachment. That bothered many Trump critics, and left others ambivalent. Now that Ukraine has opened up impeachment, it may offer an occasion to revisit Russia charges. ‘Part Two of the Mueller Report makes a very clear case that Trump obstructed justice—and they should impeach him for that too,’ says Painter. ‘They should not walk away from the Mueller Report.’

Stamell agrees: ‘If Trump has a relationship with Russia that's more important to investigate than the salary of Biden's son,’ he says. ‘You can’t close up shop now.’

In the same spirit, former NATO Ambassador Ivo Daalder calls upon Capitol Hill Democrats to subpoena the transcripts of all eight phone calls between Vladimir Putin and President Trump – and to depose the American interpreters from each of their personal meetings (in Hamburg, Buenos Aires and Helsinki). Meanwhile, House Democrats are still seeking to compel testimony arising out of the Mueller Report. They hope in time to win access to the President’s tax returns, as well as to the unredacted Mueller Report.

In a surprise twist on 25 November, Judge Ketanji Jackson ordered ex-White House counsel Don McGahn to appear before the House Judiciary Committee. 'Presidents are not kings,' Jackson wrote, and his aides can't ignore subpoenas. She rejected the Justice Department’s ‘less-than-subtle suggestion' that 'the Legislature and the Judiciary are both hopelessly stymied when it comes to [checking] the Executive'. In 1973 the Supreme Court voted 9-0 in US v Nixon to compel the President to give Congress his tapes. Stamell expects a similar outcome if the McGahn or tax returns case reaches the Court on the merits. ‘Roberts and Gorsuch and Kavanaugh are serious people,’ observes Stamell. ‘Enforcing subpoenas should not be that difficult.’

Rather than await court appeals, however, the House Judiciary Committee is rushing to hand the baton to the Senate. In principle, Chief Justice John Roberts, in presiding over the Senate impeachment trial, may rule directly on the absolute immunity asserted by officials who have refused to testify. These include the former National Security Adviser John Bolton (who left the President on bad terms, and might testify gladly once it’s deemed lawful). The Chief Justice would only need a bare Senate majority to back him, and on a narrow point it’s easy to imagine four Republicans breaking ranks. But few observers expect 20 of the 53 Republican Senators to break ranks to form the super-majority required to convict a President and remove them from office.

Following Watergate, Congress passed an independent counsel law, and an Inspector General Act. Mueller failed to check the President because the independent counsel statute lapsed, and a special counsel is bound by Justice Department guidelines barring prosecution of a President. By contrast, the Ukraine whistleblower successfully checked the President, the law required the intelligence community’s Inspector General to inform Congress that a whistleblower report existed (and by then the Democrats controlled the House). ‘The IG statute was very effective,’ says Stamell.

Clearly, there are certain essential elements of post-Trump reform. At a first approximation, Painter says, ‘You need independent counsels, you need to protect the inspector generals, and you need to be able to prosecute a sitting President. In short, you need constraints on executive power. That's what we ought to learn from Trump.’