The second impeachment
Article that the House of Representatives will vote on tomorrow alleges that as
part of the “impeachment inquiry, the Committees undertaking the investigation
served subpoenas seeking documents and testimony deemed vital to the inquiry
from various Executive Branch agencies and offices, and current and former
officials,” but that in “response, without lawful cause or excuse, President
Trump directed Executive Branch agencies, offices, and officials not to comply
with those subpoenas.” [1]
The article goes on to list specific instances of this conduct.
The illegality of the
President’s actions in this regard is abundantly clear. 2 U.S. Code §192 provides,
“Every person who having
been summoned as a witness by the authority of either House of Congress to give
testimony or to produce papers upon any matter under inquiry before either
House, or any joint committee established by a joint or concurrent resolution
of the two Houses of Congress, or any committee of either House of Congress,
willfully makes default, or who, having appeared, refuses to answer any
question pertinent to the question under inquiry, shall be deemed guilty of a
misdemeanor, punishable by a fine of not more than $1,000 nor less than $100
and imprisonment in a common jail for not less than one month nor more than
twelve months.” [2]
And 18 U.S. Code §2 says,
“(a) Whoever commits an
offense against the United States or aids, abets, counsels, commands, induces
or procures its commission, is punishable as a principal.
“(b) Whoever willfully
causes an act to be done which if directly performed by him or another would be
an offense against the United States, is punishable as a principal.” [3]
Since the president
ordered his subordinates to ignore congressional subpoenas, this looks like a
slam dunk. Of course, it’s beginning to look as though the Republican majority
Senate isn’t going to convict Mr. Trump no matter what the evidence.
But there is an
additional complication: executive privilege. Mr. Trump’s defense, to the extent
he is required to put on one, will be that the subpoenas sought information
that he should be permitted to keep confidential as the President.
The only time the Supreme
Court has ever weighed in on the issue of executive privilege was in United
States v. Nixon. [4]
That case involved a judicial subpoena in a criminal matter, but the privilege
to be claimed is the same. There the Court said that “neither the doctrine of
separation of powers, nor the need for confidentiality of high-level communications,
without more, can sustain an absolute, unqualified Presidential privilege of
immunity from judicial process under all circumstances,” and that “when the
privilege depends solely on the broad, undifferentiated claim of public
interest in the confidentiality of such conversations, a confrontation with
other values arises.” (Id, p. 706) It is difficult to see how it could
be any different with a congressional subpoena.
Now all of this is,
doubtlessly, an academic exercise. The Republican led Senate is not going to
remove the Republican President from office.
Meanwhile, Mr. Trump
recently had to pay “$2 million to eight charities as part of a settlement in
which the president admitted he misused funds raised by the Donald J. Trump
Foundation to promote his presidential bid and pay off business debts….In the
end, the president admitted in court documents that he had used the foundation
to settle legal obligations of his businesses and even to purchase a portrait
of himself.” [5]
In other words, he embezzled from his charity.
Why this was not made the
basis of another article of impeachment is beyond the grasp of your humble
servant. From the public perception standpoint, refusing to cooperate with
Congress is one thing; stealing from a charity is quite another. The spectacle
of the Senate trying to summarily dismiss an impeachment article like that
would raise a stench reaching to the far reaches of the solar system.
One supposes that the
defense would be raised that Mr. Trump committed his misdeeds in connection
with that case before he was President, so it doesn’t count. That theory, of
course, would immunize a president from impeachment even if old bodies were dug
out of his backyard, so it wouldn’t need to be taken seriously.
It is apparently
apocryphal that the curse “may you live in interesting times” is of Chinese
origin. But we live in them all the same.
