Senator Bob Casey (D-PA), September 25, 2019 [This is an excellent background summary from our ever fact-inclined Democratic Senator. People often ask what “treason, bribery, or other high Crimes and Misdemeanors” (the constitutional justification for impeachment in II.4) means. Sen. Casey explains that “both chambers of Congress have consistently interpreted the phrase broadly to mean ‘serious violations of the public trust.’]
Washington, D.C. – Today, U.S. Senator Bob Casey (D-PA) has called for the impeachment of President Donald Trump. His full statement is below:
The recent revelation that President Trump pressured a foreign government to investigate his political opponents is a textbook case of abuse of power which demands action. In order to hold President Trump fully accountable, I support a formal impeachment inquiry in the House of Representatives. My concerns about the President’s conduct have grown over months, particularly as I thoroughly reviewed Special Counsel Mueller’s report. President Trump’s most recent actions with regard to Ukraine have created new urgency to take action. Given this clear abuse of power, I believe I have an obligation to outline the conduct, both during the Russian investigation and the Ukraine matter, that is within the well-established definition of the “high crimes and misdemeanors” that the Senate would consider in an impeachment trial.
Our founders grappled with many different questions as they debated our Constitution, particularly the nature and power of the office of the President. In order to check the power of the President, our Constitution lays out an impeachment process for “treason, bribery, or other high Crimes and Misdemeanors.”[i] At the time of the drafting the Constitution, the Founders’ understanding of “high crimes and misdemeanors” was informed by centuries of English legal precedent. This understanding was reflected in Federalist No. 65, written by Alexander Hamilton, which explained that impeachment should stem from an “abuse or violation of some public trust.”[ii] Congress has explained that this “rich body of precedent . . . makes clear that the phrase refers to misconduct that damages the state and the operations of governmental institutions, and is not limited to criminal misconduct.”[iii] Informed by this history, both chambers of Congress have consistently interpreted the phrase broadly to mean “serious violations of the public trust.”[iv]
In 1868, President Andrew Johnson’s articles of impeachment included bringing “the high office of the President of the United States into contempt, ridicule and disgrace”[v] by making a number of speeches with the intent to “bring into disgrace, ridicule, hatred, contempt and reproach, the Congress of the United States.”[vi]
During the Watergate era, President Nixon faced charges that he “prevented, obstructed, and impeded the administration of justice” related to the Watergate break-in.[vii] Most recently, Republicans in Congress accused President Clinton of perjury, obstruction of justice and abuse of power during the Ken Starr investigation.[viii]
When Special Counsel Mueller issued his report on Russia’s interference in the 2016 election and more recently as reporting has emerged about President Trump’s conduct towards Ukraine, I have attempted to assess how President Trump’s actions fit into our historical and current understanding of “high crimes and misdemeanors.” Such an undertaking must be done in a considered manner. Surely, not every instance of presidential wrongdoing merits impeachment. Using the vast powers of impeachment in a cavalier fashion would be an insult to our Constitution. However, a failure by Congress to pursue impeachment in the face of grave offenses by the President is just as insulting to our Constitution and our values.
Congress must confront the facts before us. A failure to do so would be an abrogation of our most basic responsibilities. In order to hold President Trump accountable, I agree with Speaker Pelosi’s call to open a formal impeachment inquiry and begin impeachment proceedings against President Trump. If the House votes to impeach the President, I would be required as a U.S. Senator to vote in a Senate trial that would determine whether the President should be convicted and removed from office. Should such a situation arise, I will keep an open mind. However, at this time, I cannot ignore the public evidence which has confronted all of us.
As our Founders debated the merits of impeachment during the during the 1787 Constitutional Convention in Philadelphia, Elbridge Gerry rose and offered a powerful justification for including such a provision in the final Constitution: “A good magistrate will not fear [impeachments]. A bad one ought to be kept in fear of them.” In the face of such blatant abuse of power and self-interested violations of the public trust—high crimes and misdemeanors—Congress must act.
Whistleblower Report & Ukraine
In the last week, our nation has once again been confronted by reports of misconduct by President Trump. According to the intelligence community’s Inspector General (“IG”), he received a complaint regarding an alleged “urgent concern” on August 12, 2019.[ix] After thoroughly reviewing the complaint, the IG determined that the complaint “met the definition of an urgent concern, i.e., a ‘serious or flagrant problem, abuse, violation of the law or Executive order.”[x] The IG also found “reasonable grounds to believe that information relating to the urgent concern appeared credible.”[xi]
President Trump has confirmed reports by The Washington Post, The Wall Street Journal, The New York Times and other outlets on the substance of the whistleblower’s claim. One day after Special Counsel Robert Mueller testified to Congress regarding the findings of his investigation—which confirmed foreign interference in the 2016 Presidential election—President Trump spoke to the newly elected President of Ukraine on the phone. The Wall Street Journal reported that during that July phone call, “President Trump . . . repeatedly pressured the President of Ukraine to investigate Democratic presidential candidate Joe Biden’s son, urging Volodymyr Zelensky about eight times to work with Rudy Giuliani, his personal lawyer, on a probe . . . .”[xii] In a memorandum summarizing the call, after President Trump indicated that the “United States has been very very good to Ukraine,” President Zelensky indicated that he was almost ready to purchase more Javelin missiles from the United States “for defense purposes.”[xiii] At that time, President Trump asked President Zelensky “to do us a favor” by launching an investigation into the cybersecurity firm that identified Russian foreign nationals as responsible for hacking the Democratic National Committee’s network during the 2016 Presidential election.[xiv] Shortly after, President Trump also asked the President of Ukraine to “to look into” Joe Biden’s son and explained that “a lot of people want to find out” about Biden.[xv]
Furthermore, according to three senior administration officials, “President Trump told his acting chief of staff, Mick Mulvaney, to hold back almost $400 million in military aid for Ukraine” before his July phone call with President Zelensky.[xvi] Officials were instructed to explain that the funding delay was because of “an interagency process,” even though they were informed that the President had “concerns” about the funding.[xvii]
This reporting describes a grave offense: President Trump using the power of his office to pressure a foreign government to investigate his political opponent. This conduct represents a textbook abuse of power, which is also well-established within the definition of “high crimes and misdemeanors.” As the Washington Post reported on September 21, the phone call revealed “a president convinced of his own invincibility—apparently willing and even eager to wield the vast powers of the United States to taint a political foe and confident that no one could hold him back.”[xviii]
In a letter to Secretary of State Mike Pompeo, the three chairmen of the House Intelligence, Foreign Affairs and Oversight and Reform Committees explained it best by writing, “[S]uch corrupt use of presidential power for the president’s personal political interest—and not for the national interest—is a betrayal of the president’s oath of the office.”[xix]
Russian Interference in the 2016 Presidential Election
Volume I of the Report on the Investigation into Russian Interference in the 2016 Presidential Election (the Mueller Report) states that the “Russian government intervened in the 2016 election in a sweeping and systemic fashion.”[xx] In his May 29 press statement, Special Counsel Mueller stated that “Russian intelligence officers who were part of the Russian military launched a concerted attack on our political system.”[xxi] He concluded his statement that “there were multiple systemic efforts to interfere in our election . . . . [a]nd that allegation deserves the attention of the American people.”[xxii]
Obstruction of Justice Investigation
McGahn Testimony: Part I
In Volume II of the Special Counsel’s report on the investigation into Russian interference in the 2016 Presidential election, the report focuses on the President’s efforts to remove the Special Counsel.[xxiii] After the Special Counsel’s appointment in May 2017, the press reported on June 14 that the President was being personally investigated for obstruction of justice and “[t]he President responded with a series of tweets criticizing the Special Counsel’s investigation.”[xxiv] The President asserted that Mueller had conflicts of interest, and his advisors hinted that he might fire Mueller.[xxv]
Then, on June 17, just days after a June 14 Washington Post story regarding the obstruction of justice part of the investigation, the President called White House Counsel Don McGahn and “directed him to have the Special Counsel removed.”[xxvi] The Special Counsel wrote:
In interviews with this Office, McGahn recalled that the President called him at home twice and on both occasions directed him to call Rosenstein and say that Mueller had conflicts that precluded him from serving as Special Counsel.
On the first call, McGahn recalled that the President said something like, “You gotta do this. You gotta call Rod.” McGahn said he told the President that he would see what he could do. McGahn was perturbed by the call and did not intend to act on the request.
. . . .
When the President called McGahn a second time to follow up on the order to call the Department of Justice, McGahn recalled that the President was more direct, saying something like, “Call Rod, tell Rod that Mueller has conflicts and can’t be the Special Counsel.” McGahn recalled the President telling him “Mueller has to go” and “Call me back when you do it.” McGahn understood the President to be saying that the Special Counsel had to be removed by Rosenstein.[xxvii]
McGahn “did not plan to follow the President’s directive” and “decided he had to resign.”[xxviii] The report then begins its analysis of this set of facts by discussing whether “the attempt to remove the Special Counsel would qualify as an obstructive act.”[xxix] The Special Counsel explained:
A threshold question is whether the President in fact directed McGahn to have the Special Counsel removed. After news organizations reported that in June 2017 the President had ordered McGahn to have the Special Counsel removed, the President publicly disputed these accounts, and privately told McGahn that he had simply wanted McGahn to bring conflicts of interest to the Department of Justice’s attention. Some of the President’s specific language that McGahn recalled from the calls is consistent with that explanation. Substantial evidence, however, supports the conclusion that the President went further and in fact directed McGahn to call Rosenstein to have the Special Counsel removed.[xxx]
The relevant elements of obstruction of justice include a “nexus to official proceeding” and “intent.” Related to the “nexus” element, the Special Counsel found that “[s]ubstantial evidence indicates that by June 17, 2017, the President knew his conduct was under investigation by a federal prosecutor who could present any evidence of federal crimes to a grand jury.”[xxxi] Related to “intent,” the Special Counsel explained:
Substantial evidence indicates that the President’s attempts to remove the Special Counsel were linked to the Special Counsel’s oversight of investigations that involved the President’s conduct- and, most immediately, to reports that the President was being investigated for potential obstruction of justice.
. . . .
There also is evidence that the President knew that he should not have made those calls to McGahn. The President made the calls to McGahn after McGahn had specifically told the President that the White House Counsel’s Office—and McGahn himself—could not be involved in pressing conflicts claims and that the President should consult with his personal counsel if he wished to raise conflicts. Instead of relying on his personal counsel to submit the conflicts claims, the President sought to use his official powers to remove the Special Counsel.[xxxii]
Two days after the President’s direction to McGahn, the President met alone with Corey Lewandowski, his former campaign manager, who was not a member of the Administration. “The President told Lewandowski that Sessions was weak and that if the President had known about the likelihood of recusal in advance, he would not have appointed Sessions. The President then asked Lewandowski to deliver a message to Sessions . . . .”[xxxiii] According to Lewandowski’s notes, “The President directed that Sessions should give a speech publicly announcing [that] our POTUS . . . is being treated very unfairly. He shouldn’t have a Special Prosecutor/Counsel [because] he hasn’t done anything wrong.”[xxxiv] According to the report, “[t]he dictated message went on to state that Sessions would meet with the Special Counsel to limit his jurisdiction to future election interference.”[xxxv]
The President followed up on this request on July 19, and when Lewandowski attempted to have White House official Rick Dearborn deliver the message to Sessions, Dearborn “recalled not wanting to ask where it came from or think further about doing anything with it” because it “definitely raised an eyebrow.”[xxxvi]
The report indicates that this was an obstructive act. “[T]he President’s directives indicate that Sessions was being instructed to tell the Special Counsel to end the existing investigation into the President and his campaign.”[xxxvii] Furthermore, the report states that “[s]ubstantial evidence indicates that the President’s effort to have Sessions limit the scope of the Special Counsel’s investigation to future election interference was intended to prevent further investigative scrutiny of the President’s and his campaign’s conduct.”[xxxviii]
McGahn Testimony: Part II
In January 2018, media reports indicated that “in June 2017 the President had ordered McGahn to have the Special Counsel fired based on purported conflicts of interest but McGahn had refused, saying he would quit instead.”[xxxix] The Special Counsel explained:
After the story broke, the President, through his personal counsel and two aides, sought to have McGahn deny that he had been directed to remove the Special Counsel. Each time he was approached, McGahn responded that he would not refute the press accounts because they were accurate in reporting on the President’s effort to have the Special Counsel removed. The President later personally met with McGahn in the Oval Office with only the Chief of Staff present and tried to get McGahn to say that the President never ordered him to fire the Special Counsel.[xl]
When analyzing the President’s actions related to this incident, the Special Counsel noted that:
[S]ubstantial evidence supports McGahn’s account that the President had directed him to have the Special Counsel removed, including the timing and context of the President’s directive; the manner in which McGahn reacted; and the fact that the President had been told the conflicts were insubstantial, were being considered by the Department of Justice, and should be raised with the President’s personal counsel rather than brought to McGahn.[xli]
The Special Counsel further explained:
That evidence indicates that by the time of the Oval Office meeting the President was aware that McGahn did not think the story was false and did not want to issue a statement or create a written record denying facts that McGahn believed to be true. The President nevertheless persisted and asked McGahn to repudiate facts that McGahn had repeatedly said were accurate.[xlii]
After analyzing the obstructive acts of President Trump, the Special Counsel also analyzed the President’s intent. The report explained that “[s]ubstantial evidence indicates that in repeatedly urging McGahn to dispute that he was ordered to have the Special Counsel terminated, the President acted . . . to deflect or prevent further scrutiny of the President’s conduct towards the investigation.”[xliii]
As the report notes, “The President’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President”—including McGahn, Lewandowski and Dearborn—“declined to carry out orders or accede to his requests.”[xliv] Although President Trump was not charged with a crime for his actions, over a thousand former federal prosecutors released a statement shortly after the release of the Special Counsel’s report:
Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.[xlv]
It is now time for Congress to act.
[i] U.S. Const. art. II, §. 4.
[ii] The Federalist No. 65 (Alexander Hamilton).
[iii] Impeachment of Alcee L. Hastings, H.R. Rept. No. 100-810, at 6 (1988).
[iv] Impeachment of Walter L. Nixon, Jr., H.R. Rept. No. 101-36, at 5 (1989).
[v] Articles of Impeachment, Andrew Johnson, S. Misc. Doc. No. 40-32, at 8 (1868).
[vi] Id. at 6
[vii] Impeachment of Richard M. Nixon, H.R Rept. No. 93-1305, at 2 (1974).
[viii] Impeachment of William Jefferson Clinton, H.R Rept. No. 105-830, at 1–5 (1998).
[ix] Letter from Michael K. Atkinson, Inspector Gen. of the Intelligence Cmty., to the Hon. Adam Schiff, Chairman, Permanent Select Comm. on Intelligence, U.S. House of Representatives, and the Hon. Devin Nunez, Ranking Member, Permanent Select Comm. on Intelligence, U.S. House of Representatives (Sept. 9, 2019).
[xii] Alan Cullison et al., Trump Repeatedly Pressed Ukraine President to Investigate Biden’s Son, Wall St. J. (Sept. 21, 2019), https://www.wsj.com/articles/trump-defends-conversation-with-ukraine-leader-11568993176.
[xiii] Memorandum of Telephone Conversation from President Trump to President Zelensky of Ukraine 2 (Sept. 24, 2019), https://www.whitehouse.gov/wp-content/uploads/2019/09/Unclassified09.2019.pdf.
[xiv] Id. at 3.
[xvi] Karoun Demirjian et al., Trump Ordered Hold on Military Aid Days Before Calling Ukrainian President, Officials Say, Wash. Post (Sept. 23, 2019), https://www.washingtonpost.com/national-security/trump-ordered-hold-on-military-aid-days-before-calling-ukrainian-president-officials-say/2019/09/23/df93a6ca-de38-11e9-8dc8-498eabc129a0_story.html.
[xviii] Philip Rucker et al., Trump’s Ukraine Call Reveals a President Convinced of His Own Invincibility, Wash. Post (Sept. 21, 2019), https://www.washingtonpost.com/politics/trumps-ukraine-call-reveals-a-president-convinced-of-his-own-invincibility/2019/09/21/1a56466c-dc6a-11e9-ac63-3016711543fe_story.html
[xix] Maggie Haberman et al., Trump Said to Have Frozen Aid to Ukraine Before Call with Its Leader, N.Y. Times (Sept. 23, 2019), https://www.nytimes.com/2019/09/23/us/politics/trump-un-biden-ukraine.html.
[xx] I Robert S. Mueller, III, U.S. Dep’t of Justice, Report on the Investigation into Russian Interference in the 2016 Presidential Election 1 (2019).
[xxi] Full Transcript of Mueller’s Statement on Russia Investigation, N.Y. Times (May 29, 2019), https://www.nytimes.com/2019/05/29/us/politics/mueller-transcript.html.
[xxiii] II Mueller, supra note 20, at 1.
[xxiv] Id. at 77–78.
[xxv] Id. at 82–83.
[xxvi] Id. at 85.
[xxvii] Id. at 85–86 (footnotes omitted).
[xxix] Id. at 87–88.
[xxx] Id. at 88 (citations omitted).
[xxxi] Id. at 89.
[xxxii] Id. at 89–90.
[xxxiii] Id. at 91.
[xxxvi] Id. at 93.
[xxxvii] Id. at 97.
[xxxix] Id. at 113.
[xli] Id. at 118.
[xlii] Id. at 119.
[xliii] Id. at 120.
[xliv] Id. at 158.
[xlv] DOJ Alumni Statement, Statement by Former Federal Prosecutors, Medium (May 6, 2019), https://medium.com/@dojalumni/statement-by-former-federal-prosecutors-8ab7691c2aa1.