The framers of our Constitution likely never imagined a President like Donald J. Trump. And yet, they inserted impeachment provisions into the original text of the Constitution, some 230 years ago, to empower Congress to act in case a rube, tyrant, or criminal came to occupy the nation’s highest office.
It’s not crystal clear which Trump might be, but the president’s latest outrageous actions—the reported passing of highly classified intelligence to Russian diplomats in the Oval Office—should awake Republicans and Democrats in Congress to the dangers posed by Trump to the nation in case that wasn’t already obvious. His conduct now goes far beyond mere offense or incitement to constitute actual damage to U.S. national security, the very definition of “high crimes and misdemeanors” contemplated by the men who crafted the Constitution’s impeachment clauses. With this latest act, the time has come to commence the slow, deliberate process of demonstrating that Trump needs to be removed from office so he can harm the nation no more. A broad congressional inquiry should begin immediately, to inform drafters who will prepare articles of impeachment for consideration by the House and Senate. While Republican control of Congress means that such proceedings won’t occur anytime soon, it’s clear that they are warranted. We don’t yet know for certain what precisely such an investigation would yield, but there is enough public information already available to roughly map out what such articles of impeachment might—and probably should—look like.
Historically, impeachment articles have focused on broad violations of constitutional duty and specific discrete acts like clashing with Congress over Reconstruction, commanding the Watergate break-in, or testimonial perjury. In Trump’s case, there is ample evidence for both the more general violations and the more specific abuses, much of them admitted by the president through his own indelicate tweets (including admissions Tuesday morning regarding the passing of classified information to the Russians).
So what might an impeachment bill against President Trump include?
The Andrew Johnson, Richard Nixon, and Bill Clinton impeachment bills used common language to put their specific violations in context. Any Trump articles of impeachment should also include such language at the start of each article:
In his conduct while president of the United States, Donald J. Trump, in violation of his constitutional oath faithfully to execute the office of president of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has engaged in conduct that resulted in misuse and abuse of his high office:
Beyond this preamble, the Trump impeachment bill might include, but not be limited to, the following articles:
Article 1: Compromising the integrity of the presidency through continuing violation of the Constitution’s Emoluments Clause. From his first day in office, Trump’s continuing stake in Trump Organization businesses has violated the clause of the Constitution proscribing federal officials from receiving foreign payments. The true and full extent of Trump’s conflicts of interest remains unknown. For his part, Trump has transferred day-to-day control over these interests to his adult children and the management of the Trump Organization. However, he remains the ultimate beneficiary for these businesses, so the fundamental conflict of interest remains. These foreign business ties violate both the letter and spirit of the Constitution’s Emoluments Clause, and arguably provide the clearest basis for impeachment based on the facts and law.
Article 2: Violation of his constitutional oath to faithfully execute the duties of his office by disregarding U.S. interests and pursuing the interests of a hostile foreign power, to wit, Russia. L’affaire Russia began during Trump’s campaign for the presidency, during which several top aides reportedly had contacts with Russia and its intelligence service. His campaign manager also had reportedly worked either directly or indirectly for the Kremlin. These contacts continued, famously, into the presidential transition, when the president’s chosen national security adviser, Michael Flynn, had his ill-fated contacts with Russia. Beyond these contacts, Trump has substantively acted in myriad ways that benefit Russia, including dangerous diplomacy that has reportedly frayed relationships with our allies and allegedly put allied intelligence assets at risk. By offering classified information to the Russians, it was reported that Trump risked the intelligence assets of a Middle Eastern ally that already warned American officials that it would stop sharing such information with America if that information was shared too widely. In risking that relationship, Trump has opened up the possibility for the loss of that information stream for combatting terrorism, and potentially put American lives at risk from the loss of intelligence that could inform officials about future attacks on Americans at home and abroad.
Article 3: Impairment and obstruction of inquiries by the Justice Department and Congress into the extent of the Trump administration’s conflicts of interests and Russia ties. The Trump administration has systematically impeded, avoided, or obstructed the machinery of justice to obscure its business relationships, its Russia ties, and the forces acting within the Trump White House to animate policy. The most egregious and visible examples have been Trump’s firings of Acting Attorney General Sally Yates and FBI Director James Comey. [Update, 6:18 p.m.: The New York Times reported on Tuesday afternoon on an even more egregious case of apparent obstruction of justice, wherein Trump allegedly directly asked Comey to end the FBI’s investigation of Michael Flynn.] Each termination had what appeared to be a lawful pretext; subsequent statements or admissions have indicated each had more to do with obstructing justice than holding leaders accountable. Alongside these sackings, the Trump administration has also worked to starve Justice Department inquiries of resources and refocus investigators on suspected leaks instead of the White House’s own Russia intrigues. The Trump administration also interfered with congressional inquiries through attempting to block witnesses like Yates from appearing or selective leaking of classified information to House Intelligence Chairman Devin Nunes, compromising Nunes so badly he had to recuse himself from the matter.
Article 4: Undermining of the American judicial system through felonious intimidation of potential witnesses. In his desire to continue Comey’s public humiliation, and ensure Comey remained silent about Trump’s possible sins, the president threatened Comey on Twitter with disclosure of “tapes” of their conversations. This follows a pattern of Trump roughly treating witnesses and litigation adversaries that stretches back for decades before his presidency. Since taking office, Trump has also used the bully pulpit of his office to threaten intelligence officials for purported leaks and badger former Yates before her congressional testimony. In addition to falling beneath the dignity of the presidency, these verbal assaults also constitute obstruction of justice, prohibited by federal statutes on witness intimidation, retaliation against a witness, and obstruction of federal proceedings. These attacks don’t just harm the individuals who are targeted; they assault and undermine the rule of law. As such, they constitute further grounds for impeachment of Trump and his removal from the presidency.
Article 5: Undermining of his office and the Constitution through repeated assaults on the integrity of the federal judiciary and its officers. During the presidential campaign, Trump publicly attacked federal district Judge Gonzalo Curiel on the basis of his ethnicity, saying Curiel had been “extremely hostile to (Trump),” and that the judge had ruled against Trump because of his “Mexican heritage.” Since taking office, Trump has continued his unpresidential assaults on the federal judiciary, particularly after repeatedly losing court battles over his travel bans. At one point, he described a member of the bench as a “so-called judge,” undermining the premise of an independent judiciary. These statements also undermined both the dignity and power of the presidency, and threaten the rule of law by attacking the integrity of the federal judiciary.
Article 6: Demeaning the integrity of government and its public servants, particularly the military and intelligence agencies, in contravention of his constitutional duties to serve as chief executive and commander in chief of the armed forces. Trump swept into office with considerable disdain for the government and its military. Indeed, during his campaign, he insulted former prisoners of war, Purple Heart recipients, and Gold Star families; criticized the military for its performance in Iraq; and said today’s generals and admirals had been “reduced to rubble” during the Obama administration. Trump carried this disdain into the presidency, through his attacks on the “deep state” of military and intelligence officials that he believed to be obstructing his agenda. He also demeaned the military and its apolitical ethos through use of military fora and audiences as public spectacle—first to sign his immigration order in the Pentagon’s Hall of Heroes, and then to deliver rambling speeches at military and intelligence headquarters suggesting that pro-Trump elements in those agencies were grateful Trump had taken power. Trump has also continued to wage political war against his intelligence community, suggesting as recently as Tuesday morning that it was sabotaging his administration through leaking and other nefarious activities. In doing these things, Trump has undermined his constitutional office as president and commander in chief of the armed forces.
Article 7: Dereliction of his constitutional duty to faithfully execute the office of president by failing to timely appoint officers of the United States to administer the nation’s federal agencies. Shortly after taking office, Trump administration strategist Stephen Bannon articulated his plan for the “deconstruction of the administrative state.” During its first four months in office, the Trump administration’s neglect of governance illustrates how this strategy is to be executed: delay of political appointments, failure to reach budget agreements with Congress in a timely manner, and deliberate neglect of governance and government operations. These actions and failures risk the health, welfare, and security of the nation, and represent a dereliction of Trump’s constitutional duty to faithfully execute the office of the presidency.
Any one of the offenses above could constitute the basis for rigorous investigation of the Trump White House and its failures. Together, the totality of Trump’s malfeasance—once proven after a rigorous investigation—would likely make clear that he “warrants impeachment and trial, and removal from office and disqualification to hold and enjoy any office of honor, trust or profit under the United States,” to quote from the bill of impeachment passed against President Clinton.
The time has come for Congress to act and for leaders on both sides of the aisle to put country before party and politics. Speaker Paul Ryan and Majority Leader Mitch McConnell ought to, in cooperation with Democratic leaders, begin the sequence of events that would likely lead to impeachment and removal proceedings for Trump. Given that this is unlikely, Democrats should make clear of their intentions to do what is necessary under our Constitution should they win back control of the House of Representatives in 2018. This process should be as full, fair, and transparent as our Constitution requires. Anything less would demean and harm the country even more than Trump has already done.