Bruce Fein, a former senior official in the
Department of Justice and a constitutional scholar, has identified 12
impeachable offenses committed by Donald Trump.
But, as he notes, many of these
constitutional violations are not unique to the Trump administration. They have
been normalized by Democratic and Republican administrations. These
long-standing violations are, for this reason, ignored by Democratic Party
leaders seeking to impeach the president.
They have chosen to focus exclusively on Trump’s attempt to get the Ukrainian president to open an investigation of Joe Biden and his son, Hunter, in exchange for $400 million in U.S. military aid and a visit by the Ukrainian leader to the White House. Ignoring these institutionalized violations during the impeachment inquiry, Fein fears, would legitimate them and lead to the death of democracy.
In a letter on Friday to House Speaker
Nancy Pelosi, also signed by Ralph Nader and Louis Fisher,
Fein warns that Trump is “shattering our entire constitutional order.”
Fein warns that Trump is “shattering our entire constitutional order.”
He lists as the president’s most
serious constitutional violations the “defiance of congressional subpoenas and
oversight; spending billions of dollars on a southern border wall not
appropriated for that purpose; continuing or expanding presidential wars not
declared by Congress; exercising line-item veto power; flouting the Emoluments
Clause; and, playing prosecutor, judge, jury, and executioner to kill any
person on the planet based on secret, unsubstantiated information.”
But he also notes that many of these violations are not unique to Trump and were also carried out by Barack Obama and George W. Bush.
“Many of the Democrats in the past
have been complicit in these violations,” Fein said when I reached him by phone
in Washington, D.C.
“They have unclean hands. They have acquiesced in illegal surveillance, as revealed by Edward Snowden. The most serious constitutional violations are the ones that are institutional usurpations. These usurpations [by both parties] have permanently weakened, if not eviscerated, the power of the legislature versus the executive.”
“They have unclean hands. They have acquiesced in illegal surveillance, as revealed by Edward Snowden. The most serious constitutional violations are the ones that are institutional usurpations. These usurpations [by both parties] have permanently weakened, if not eviscerated, the power of the legislature versus the executive.”
“We have a Congress whose members, by and large, do not want the responsibilities the Constitution entrusts them with,” Fein continued.
“They like to give away everything to the president and then clamor if something goes bad. The most worrisome constitutional violations are, unfortunately, ones many members of Congress rejoice in. It enables them to escape making hard choices that might compromise their ability to win reelection. But you can’t rely on a past dereliction to justify its perpetuation indefinitely.”
“If we take a narrow approach to
impeachment, that will mean that all the more egregious violations will be
viewed as having been endorsed and not rebuked and successive presidents will
feel they have a green light to emulate Trump on everything except a Ukrainian
shakedown,” Fein said.
“This is dangerous for the country. This could boomerang, even if we get rid of Trump, by endorsing these usurpations forever. This would be a return to a one-branch government like the monarchy we overthrew in 1776. The unwitting result is to further the [power of the] executive rather than diminish it, which is what should be happening.”
“This is dangerous for the country. This could boomerang, even if we get rid of Trump, by endorsing these usurpations forever. This would be a return to a one-branch government like the monarchy we overthrew in 1776. The unwitting result is to further the [power of the] executive rather than diminish it, which is what should be happening.”
Bush and Obama bequeathed to us nine
illegal wars, if we include Yemen. None were declared by Congress, as is
demanded by the Constitution.
Bush and Obama bequeathed to us nine
illegal wars, if we include Yemen. None were declared by Congress, as is
demanded by the Constitution.
Bush placed the entire U.S. public under government surveillance in direct violation of the Fourth Amendment and the Foreign Intelligence Surveillance Act (FISA), which makes it a crime for the government to surveil any American citizen without authorization by statute.
Under the Executive Order 10333 the president spies on Americans as if they were foreigners, although this surveillance has not been authorized by statute.
Bush embarked on a global program of kidnapping and torture, including of foreign nationals, which Obama continued. Bush and Obama carried out targeted assassinations, usually by militarized drones, across the globe. And Obama, reinterpreting the 2002 Authorization for Use of Military Force Act, gave the executive branch the authority to assassinate U.S. citizens.
The killings began with drone strikes on the radical cleric Anwar al-Awlaki and, two weeks later, his 16-year-old son. Such a violation denies U.S. citizens due process. By signing into law Section 1021 of the National Defense Authorization Act, Obama—whose record on civil liberties is even more appalling than Bush’s gutted the 1878 Posse Comitatus Act, which prohibits the use of the military as a domestic police force.
Bush placed the entire U.S. public under government surveillance in direct violation of the Fourth Amendment and the Foreign Intelligence Surveillance Act (FISA), which makes it a crime for the government to surveil any American citizen without authorization by statute.
Under the Executive Order 10333 the president spies on Americans as if they were foreigners, although this surveillance has not been authorized by statute.
Bush embarked on a global program of kidnapping and torture, including of foreign nationals, which Obama continued. Bush and Obama carried out targeted assassinations, usually by militarized drones, across the globe. And Obama, reinterpreting the 2002 Authorization for Use of Military Force Act, gave the executive branch the authority to assassinate U.S. citizens.
The killings began with drone strikes on the radical cleric Anwar al-Awlaki and, two weeks later, his 16-year-old son. Such a violation denies U.S. citizens due process. By signing into law Section 1021 of the National Defense Authorization Act, Obama—whose record on civil liberties is even more appalling than Bush’s gutted the 1878 Posse Comitatus Act, which prohibits the use of the military as a domestic police force.
These two presidents, like Trump,
violated treaty clauses that required Senate ratification. Obama did this when
he signed the Iran nuclear deal and Trump did this when he walked away from the
deal.
Bush and Obama, like Trump, violated the appointments clause of the Constitution by appointing people who were never confirmed by the Senate as required. The three presidents, to override Congress, all routinely abused their right to use executive orders.
Bush and Obama, like Trump, violated the appointments clause of the Constitution by appointing people who were never confirmed by the Senate as required. The three presidents, to override Congress, all routinely abused their right to use executive orders.
At the same time the courts, a wholly
owned subsidiary of corporate power, have transformed the electoral system into
legalized bribery through the Citizens United ruling, handed down by the
Supreme Court in 2010. Corporations pouring unlimited money into elections was
interpreted by the court as the right to petition the government and a form of
free speech, essentially overturning the people’s rights by judicial fiat.
Also, the courts have steadfastly refused to restore basic constitutional rights including our right to privacy and due process. “The constitutional rot is in all three branches,” Fein said.
Also, the courts have steadfastly refused to restore basic constitutional rights including our right to privacy and due process. “The constitutional rot is in all three branches,” Fein said.
The 12 impeachable offenses committed
by Trump and singled out by Fein are:
Trump made clear his contempt of
Congress when he boasted, “… I have Article II, where I have the right to do
whatever I want as president.”
“President Trump has repeatedly and
unconstitutionally systematically undermined the congressional oversight power,
including the ongoing congressional impeachment inquiry of the President
himself, by instructing numerous current and former White House staff and
members of the executive branch to defy congressional subpoenas on an
unprecedented scale far beyond any previous President,” Fein wrote to Pelosi.
“Without congressional authority, he
has secretly deployed special forces abroad and employed secret guidelines for
targeted killings, including American citizens, based on secret unsubstantiated
information. He has unconstitutionally endeavored to block private persons or
entities from responding to congressional requests or subpoenas for
information, e.g., Deutsche Bank. He has refused to provide Congress
information about nepotistic or other security clearances he granted in
opposition to his own FBI security experts. He has refused to disclose his tax
returns to the Chairman of the Ways and Means Committee contrary to a 1924 law,
26 U.S.C. 6103 (f).”
2. Abuse of the Powers of the President and Abuse of Public Trust
“Unlike prior presidents, he has made
presidential lies as routine as the rising and setting of the sun, confounding
civil discourse, truth and public trust,” the memo to Pelosi reads.
“He has disrespected, belittled, and
serially preyed upon women, mocked the disabled, incited violence against the
mainstream media and critics, and encouraged and displayed bigotry towards
minorities and minority Members of Congress, including intercession with Israel
in serious violation of the Speech or Debate Clause, Article I, section 6,
clause 1, to deny two Members visitor visas.”
3. Appropriations Clause, Revenue
Clause
“Congress has consistently voted much
less money than President Trump requested to build an extensive,
multi-billion-dollar wall with Mexico,” the memo reads.
“In violation of the Clause and the
criminal prohibition of the Anti-Deficiency Act, President Trump has committed
to spending billions of dollars far in excess of what Congress has appropriated
for the wall. The congressional power of the purse is a cornerstone of the
Constitution’s separation of powers.”
Article I, Section 7, Clause 1 of the
Constitution requires all revenue measures to originate in the House of
Representatives.
“In violation of the Clause, President
Trump has raised tens of billions of dollars by unilaterally imposing tariffs
with limitless discretion under section 232 of the Trade Expansion Act of
1962,” the memo reads.
“He has become a Foreign Trade Czar in
imposing tariffs or quotas or granting exemptions from his trade restrictions
in his unbridled discretion to assist political friends and punish political
enemies. Literally trillions of dollars in international trade have been
affected. Riches are made, and livelihoods destroyed overnight with the
capricious stroke of President Trump’s pen.”
4. Emoluments Clause
“Article I, section 9, clause 8
prohibits the President (and other federal officers), without the consent of
Congress, from accepting any ‘present, emolument, office, or title, of any kind
whatsoever, from any King, Prince, or foreign state.’
“President Trump has notoriously
refused to place his assets in a blind trust,” the memo reads.
“Instead, he continues to profit from
opulent hotels heavily patronized by foreign governments. He has permitted his
family to commercialize the White House. He has compromised the national
interest to enrich family wealth on a scale unprecedented in the history of the
presidency.”
5. Treaty Clause
Article II, Section 2, Clause 2
requires Senate ratification of treaties by two-thirds majorities. The text is
silent as to whether treaty termination requires Senate ratification, and the
Supreme Court held the issue was a non-justiciable political question in
Goldwater v. Carter, 444 U.S. 996 (1979).
“President Trump flouted the Treaty
Clause in terminating the Intermediate-Range Nuclear Forces Treaty (INF) with
Russia unilaterally,” the memo reads. “The treaty assigned the termination
decision to the ‘United States.’ The President alone is not the United States
under the Treaty Clause.”
6. Declare War Clause
Article I, Section 8, Clause 11
empowers Congress alone to take the nation from a state of peace to a state of
war. That power cannot be delegated.
“In violation of the Declare War
Clause, President Trump has continued to wage or has initiated presidential
wars in Libya, Somalia, Yemen, Syria, Iraq, Afghanistan, and Pakistan, and has
used special forces offensively in several African nations,” the memo reads.
“President Trump has claimed authority
to initiate war against any nation or non-state actor in the world—not in
self-defense—on his say-so alone, including war against North Korea, Iran, or
Venezuela.”
7. Take Care Clause; Presentment
Clause
Article II, Section 3 obligates the
president to “take care that the laws be faithfully executed.”
“In violation of that trust, President
Donald J. Trump deliberately attempted to frustrate special counsel Robert
Mueller’s investigation of collaboration between the Trump 2016 campaign and
Russia to influence the presidential election,” Fein points out.
“Among other things, the President
refused to answer specific questions relating to his presidential conduct;
endeavored to fire the special counsel; dangled pardons for non-cooperating
witnesses; and, urged Attorney General Jeff Sessions to reverse his recusal
decision to better protect his presidency. In all these respects, the President
was attempting to obstruct justice.”
“President Trump has also
systematically declined to enforce statutory mandates of Congress by
arbitrarily and capriciously revoking scores of agency rules ranging from
immigration to the Consumer Financial Protection Board to the Environmental
Protection Agency in violation of the Administrative Procedure Act or
otherwise,” the memo reads.
“He has routinely legislated by executive order in lieu of following constitutionally prescribed processes for legislation.”
“He has routinely legislated by executive order in lieu of following constitutionally prescribed processes for legislation.”
“In violation of his constitutional
duty to take care that the laws be faithfully executed, Mr. Trump has
dismantled and disabled scores of preventive measures to save lives, avoid
injuries or disease, help families, consumers, and workers, and detect, deter,
and punish tens of billions of dollars of corporate fraud,” the memo continues.
“He has disputed climate disruption as
a ‘Chinese hoax,’ compounded the climate crisis by overt actions that expand
greenhouse gas emissions and pollution, and excluded or marginalized the influence
of civil service scientists.”
8. Due Process Clause
The Fifth Amendment provides that no
person shall “be deprived of life … without due process of law.”
“In violation of due process,
President Trump claims power, like his immediate two predecessors, to act as
prosecutor, judge, jury, and executioner to kill American citizens or
non-citizens alike, on or off a battlefield, whether or not engaged in
hostilities, whether or not accused of crime, and whether or not posing an
imminent threat of harm that would trigger a right of preemptive self-defense,”
the memo reads.
“President Trump has repeatedly
appointed principal officers of the United States, including the National
Security Advisor and Cabinet officials, who have not been confirmed by the
Senate in violation of the Appointments Clause, Article II, section 2, clause
2,” the memo reads.
“On a scale never practiced by prior
presidents, Mr. Trump has filled as many as half of Cabinet posts with ‘Acting
Secretaries’ who have never been confirmed by the Senate.”
10. Soliciting a Foreign Contribution for the 2020 Presidential Campaign and Bribery
“President Trump has endeavored to
corrupt the 2020 presidential campaign by soliciting the President of Ukraine
to contribute something of value to diminish the popularity of potential rival
Joe Biden, i.e., a Ukrainian investigation of Mr. Biden and his son Hunter
relating to potential corrupt practices of Burisma, which compensated Hunter
handsomely ($50,000 per month). In so doing, Mr. Trump violated the criminal
campaign finance prohibition set forth in 52 U.S.C. 30121,” Fein’s memo reads.
“President Trump solicited a bribe for
himself in violation of 18 U.S.C. 201 in seeking something of personal value,
i.e., discrediting Joe Biden’s 2020 presidential campaign with the help of the
President of Ukraine to influence Mr. Trump’s official decision to release
approximately $400 million in military and related assistance,” it adds.
11. Violating Citizen Privacy
“Government spying on Americans
ordinarily requires a warrant issued by a neutral magistrate based on probable
cause to believe crime is afoot,” the memo reads.
“President Trump, however, routinely
violates the Fourth Amendment with suspicionless surveillance of Americans for
non-criminal, foreign intelligence purposes under Executive Order 12333 and
aggressive interpretations of the Foreign Intelligence Surveillance Act.”
12. Suppression of Free Speech
“President Trump is violating the
First Amendment in stretching the Espionage Act to prosecute publication of
leaked classified information that are instrumental to exposing government lies
and deterring government wrongdoing or misadventures, including the outstanding
indictment against Julian Assange for publishing information which was
republished by the New York Times and The Washington
Post with impunity,” the memo reads.
“The Republic is at an inflection
point,” the letter to Speaker Pelosi reads.
“Either the Constitution is saved by
impeaching and removing its arsonist in the White House, or it is reduced to
ashes by continued congressional endorsement, whether by omission or
commission, of limitless executive power and the undoing of checks and
balances.”
Chris Hedges writes a
regular column for Truthdig.com. Hedges graduated from Harvard
Divinity School and was for nearly two decades a foreign correspondent for The
New York Times. He is the author of many books, including: War Is A Force That Gives Us Meaning, What Every Person Should Know About War,
and American Fascists: The Christian Right and the War on
America. His most recent book is Empire of Illusion: The End of Literacy and the
Triumph of Spectacle.