Impeachment of Trump: An Imperative of Criminal Law and Constitutional Law

New Jersey Democratic Convention, with Speaker Nancy Pelosi.

The impeachment of a President of the United States is a most grave matter which involves setting aside the choice of the electorate made at the previous election.  Our Founding Fathers never intended that impeachment and removal could be utilized as a weapon against a president merely for failed policies or reprehensible behavior.

Nor is bad character per se a basis for impeachment and removal.  It is irrefutable that Donald Trump is a vile, despicable racist, misogynist, and xenophobe with a business career characterized by unmitigated fraud and corruption.   He has the worst character of any president in American history.  This, however, is no basis for his impeachment and removal from office.

Instead, the framers of the Constitution viewed the impeachment process as being limited to two exigencies.  The first involves matters of presidential commission of serious statutory crimes of moral turpitude, especially where they demonstrate the president’s belief that he is above the law.  The second involves abuses of power by the president in which he violates the letter and spirit of the Constitution and does serious damage to institutions of government.

In the case of Donald Trump, there is a case of both criminal statutory crimes and Constitutional violations far more extensive than those of which Richard Nixon was accused.

To begin with, there are the ten acts of obstruction of justice identified by the Mueller Report.  There are also the illegal payments Donald Trump directed his fixer, Michael Cohen to make, which constituted violations of federal campaign finance laws, to which Cohen already pleaded guilty.

The allegations of statutory crimes which prompted House Speaker Nancy Pelosi to change her position and support an impeachment inquiry are those based upon the whistleblower’s complaint.  They begin with Trump’s solicitation of an illegal foreign campaign contribution from Ukraine President Volodymyr Zelensky, to wit, the assistance of the Ukraine government in digging up dirt against the frontrunner for the Democratic 2020 presidential nomination Joe Biden and his son, Hunter.

Trump’s alleged crime of solicitation of illegal foreign assistance to his campaign is in no way mitigated by any improper or illegal behavior by Joe or Hunter Biden. And by the way, there is not a scintilla of evidence at this point of any illicit behavior of either Biden.  Furthermore, there is no requirement of a quid pro quo to establish commission by Trump of the crime of an illegal campaign contribution solicitation.

This case of alleged Trump campaign law violations also appears to provide a basis for charges against Trump of bribery and extortion.  There need not be any express promise of a quid pro quo on the part of the president in the course of his conversation with Zelensky.  Such a quid pro quo can be circumstantially inferred from the fact that Trump was requesting the illegal Ukraine campaign assistance in the same conversation in which he was discussing the overall issue of American military assistance and obviously alluding to Zelensky his leverage regarding same.

The highly respected former US Attorney from the Eastern District of Michigan, Barbara McQuade, best expressed the case for Articles of Impeachment against Trump for bribery and extortion.  Specifically, it is a crime under the federal bribery statute for a public official to demand anything of value in exchange for performing an official act. Additionally, the Hobbs Act defines extortion as “obtaining property from another, with his consent, under color of official right.” McQuade continues:

The essence of both crimes is a demand by a public official to obtain something for himself to which he is not entitled in exchange for performing an official act of his office. Here, if the reporting is correct, Trump may be similarly committing bribery and extortion by using the power of his office to demand a thing of value, dirt on Biden, in exchange for an official act, the provision of military aid. This is precisely the kind of old-fashioned corruption scheme that the bribery and extortion statutes were designed to punish.”

Yet the Constitutional violations by Trump, which need not be codified by criminal statutes, provide a more clear and compelling basis for his impeachment.

This was best explained by former Republican Congressman from Florida David Jolly.  He noted that the framers of the Impeachment Clause of the Constitution were three Virginians James Madison, Edmund Randolph, and George Mason.  With regard to Trump’s direct violation of their intent and purpose, Jolly notes the following:

“They (Madison, Randolph, and Mason) were each concerned that the President may one day engage in activity that was not criminal, but was impeachable. Madison was concerned about a president who would engage in perfidy, deceit, untrustworthiness. Madison was worried about a president who would be disloyal to our nation in dealing with a foreign nation. Ukraine. Randolph was concerned about a president who would secure emoluments from the office, profit from the presidency. Mason was concerned about someone who would tamper with elections or electors, he was concerned about a president who would tamper with investigations into himself. This (Trump) is the presidency that the authors and architects of the impeachment language feared.”

Indeed, Donald J. Trump is the quintessence of the Constitutional framers’ definition of an impeachable president, namely by 1) his making himself subject to blackmail by Zelensky, given the latter’s knowledge of Trump’s alleged crimes; 2) Trump’s flagrant violations of both foreign and domestic emoluments prohibitions; and 3) his defiant violations of federal election laws.

Unquestionably, the impeachment of Donald Trump is an imperative of both criminal law and Constitutional law.

Special kudos must be given to House Speaker Nancy Pelosi for the measured way in which she approached the impeachment issue.  Her initial reluctance to proceed with impeachment shatters totally the credibility of Trump’s vile lie that she was hell-bent on a witch hunt against him.

Tonight is the beginning of Rosh HaShannah, the Jewish New Year.  I will be praying for my family, world Jewry, and the future of the nation I love, the United States if America.

Let justice be done.  God bless America.

Alan J. Steinberg served as Regional Administrator of Region 2 EPA during the administration of former President George W. Bush and as Executive Director of the New Jersey Meadowlands Commission.

 

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  • De rebbeh

    “Tonight is the beginning of Rosh HaShannah, the Jewish New Year. I will be praying for my family, world Jewry, and the future of the nation I love, the United States if America. Let justice be done. God bless America.”

    Well said Alan. But for Yom Kippur I would recommend concentrating on the following prayers:

    Al chait shechatanu lefanecha ….

    b’rechilut ….

    b’lashon harah …

    b’sinat chinam ….

    b’kashyut oref ….

    b’phlilut …

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