The White House orders members of the govenment not to testify and refuses to produce documents requested by House committees. It stonewalls subpoenas or turns to the courts, which could delay proceedings well past the 2020 elections. Is the possibility of impeachment stymied?
Some of us can remember when Republicans commonly charged people with being “Fifth Amendment Communists.” The obvious point was that their reason for invoking the Fifth Amendment was to hide their connection to the Communists. Otherwise, why not answer?
Actually, even for innocent people it was often safest not to answer because investigators often drew outrageous inferences. The U.S. Supreme Court, for example, lambasted one agency for assuming that a person who wore overalls was a Communist.
But sometimes we’re entitled to answers. In lawsuits, federal courts can order disclosure unless it’s unfair or improper.[1] They must consider “the parties’ relative access to relevant information.”[2] But if people refuse to answer once orders are issued, courts can “direct[] that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims.”[3] Similarly, when Trump’s people refuse to testify, Congress could take facts “as established for purposes of” impeachment.
The harm under investigation here is considerable and effective remedies for disclosure are appropriate. The seriousness of the issues makes refusal to testify egregious and justifies effective remedies for failure to testify or turn over documents. The President’s dealings with Russia and Ukraine were extremely dangerous to the extent that they reveal that American foreign policy is up for sale. If Mr. Trump is or suspects he’s president because of what Russia did for him, or that he might remain president because of what Russia or Ukraine might do for him, there is at least the temptation to distort American foreign policy to get their help, weakening America and making us more vulnerable to our enemies. That’s a big constitutional no-no, embodied in all the language of the impeachment and emoluments clauses.[4]
His defenders insist that there is no evidence of an explicit quid pro quo. That’s not a satisfactory defense. People in high places are rarely stupid enough to make exchanges explicit – “I will do this if you will do that.” Seeking favors is an impeachable “high crime” because they create temptations and because the participants often understand and expect there will be a quid pro quo, though Trump’s judicial appointees may not get the point.[5] For the same reason, the emoluments clause says zero about quid pro quos – just taking a benefit from a foreign power violates that clause. It prohibits “accept[ing] any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or Foreign State.” The crime under the emoluments clause is merely to “accept” the benefit.[6]
My high school sent me to a citywide competition about the meaning of brotherhood. One of the judges was the great news anchor, Walter Cronkite. One was the famous Manhattan District Attorney, Frank S. Hogan. And the third was the Manhattan Borough President, Hulan Jack. Shortly thereafter, Hogan convicted Jack for accepting a gift. Jack did some things I admired, but Jack accepted the gift knowing the donor wanted to do business with the City. Statutes prohibit accepting such gifts, whether or not there’s an explicit deal because the temptations are obvious. It’s well understood that illicit business is done with a wink and a nod. “Take this” is enough where other arrangements are pending.
In this case, Trump has admitted asking for a favor that he had no right to accept, a favor barred by more than one clause in the Constitution. The fact that he didn’t get what he asked for is irrelevant. His behavior was as corrupt as it was for the Manhattan Borough President. That’s enough. And the consequences of Mr. Trump’s behavior are much more serious.
[1] F.R.C.P. 26(c)(1).
[2] F.R.C.P. 26(b)(1).
[3] F.R.C.P. 37(B)(2)(A).
[4] See also “Impeachment for Corruption,” my commentary for April 10, 2018, and “Is America For Sale?” my commentary for June 20, 2017.
[5] McDonnell v. United States, 136 S. Ct. 2355 (2016) (although governor accepted loans and gifts, introducing donor to officials did not violate honest services law); McCutcheon v. FEC, 572 U.S. 185 (2014) (aggregate statutory limit on political donations did little to prevent quid pro quos); Skilling v. United States, 561 U.S. 358 (2010) (honest services doctrine limited to bribery or kickbacks, not including scheme to deceive).
[6] Art. I, §9, ¶8.
Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.
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