In the last offering in
these pages, your humble servant submitted for your incisive consideration that
President Trump can be impeached, and convicted, for stealing from his
charitable non-profit before he took office. [1] It
is to be admitted, however, that people often think of impeachable offenses as
misdeeds committed while in office, and actions committed in connection with
the performance of that office.
We really need to
consider that problem no further than to speculate about what could be done
about a dead body found buried in a president’s former residence. Still, it
will be useful to take a look at the pertinent constitutional provision to see
if the impeachment process is so restricted. Article II, Section 4 of the
Constitution reads this way:
“The President, Vice
President and all civil Officers of the United States, shall be removed from
Office on Impeachment for, and Conviction of, Treason, Bribery, or other high
Crimes and Misdemeanors.” [2]
There is no restriction
on when the treason, bribery, or other crime is committed. And, really, we
should be grateful for that. Otherwise, a failed attempt at treason, only
discovered after the perpetrator took office, would be without an immediate
remedy in the case of the President; who, according to prevailing wisdom,
cannot be prosecuted until his term is completed.
But there is another impeachable
offense that the president has committed in office, beyond the extortion
attempt on the president of Ukraine that congressional Democrats appear to be
hanging their hats on. He revealed state secrets to the Russians! [3]
“The intelligence
disclosed by Mr. Trump in a meeting with Sergey V. Lavrov, the Russian foreign
minister, and Sergey I. Kislyak, the Russian ambassador to the United States,
was about an Islamic State plot….” At the time that happened in 2017, the
prevailing wisdom was that Mr. Trump’s disclosure wasn’t illegal, since “the
president has the power to declassify almost anything.”
To the extent that is
true, it isn’t a complete analysis. As the Lawfare blog pointed out at
the time,
“Questions of criminality
aside, we turn to the far more significant issues: If the President gave this
information away through carelessness or neglect, he has arguably breached his
oath of office….in taking the oath President Trump swore to ‘faithfully execute
the Office of President of the United States’ and to ‘preserve, protect and
defend the Constitution of the United States’ to the best of his ability. It’s
very hard to argue that carelessly giving away highly sensitive material to an
adversary foreign power constitutes a faithful execution of the office of
President.
“Violating the oath of
office does not require violating a criminal statute. If the President decided
to write the nuclear codes on a sticky note on his desk and then took a photo
of it and tweeted it, he would not technically have violated any criminal
law–just as he hasn’t here. He has the constitutional authority to dictate that
the safeguarding of nuclear materials shall be done through sticky notes in
plain sight and tweeted, even the authority to declassify the codes outright.
Yet, we would all understand this degree of negligence to be a gross violation
of his oath of office.” [4]
Still, we need not
concede the illegality point so readily. Federal statute provides that whoever “Whoever
knowingly and willfully communicates, furnishes, transmits, or otherwise makes
available to an unauthorized person, or publishes, or uses in any manner
prejudicial to the safety or interest of the United States or for the benefit
of any foreign government to the detriment of the United States any classified
information…obtained by the processes of communication intelligence from the
communications of any foreign government, knowing the same to have been
obtained by such processes” is subject to a fine, imprisonment up to ten years,
or both. [5]
Now the information Mr.
Trump disclosed had come from an ally, probably Israel, undeniably a foreign
government. [6]
Classified information for these purposes has the statutory definition of “information
which…is, for reasons of national security, specifically designated by a United
States Government Agency for limited or restricted dissemination or
distribution….” That means that once the appropriate agency designates
information declassified, it retains that status until the agency declassifies
it. Of course, the President has the power to order the information declassified.
But Mr. Trump didn’t do that in this case; he simply disclosed the information.
To the Russians.
Thus, it appears that the
President is capable of violating this law after all. And this he manifestly
did. His disclosure to the Russians of classified information should be yet
another article of impeachment to be brought before the Senate for trial.