The case for a Trump impeachment inquiry

Introduction

When CREW called for impeachment in July, we explained that it was a decision that we had reached with great reluctance on the basis that as a nation, we had exhausted alternative avenues to achieve executive branch accountability. In our view, three aspects of President Trump’s conduct met the preconditions for a formal impeachment inquiry: the President’s obstruction of the investigation of Russia’s attack on our election (and his own conduct); his participation in a scheme to perpetrate and cover up criminal violations of federal campaign finance and ethics laws; and his abuse of the powers of the presidency for personal gain, including his unconstitutional acceptance of foreign and domestic emoluments. Each of these bases for impeachment passed a key test: they involved abuses of power that would merit congressional scrutiny of a president regardless of his or her party or policies.

To these three bases for impeachment, we now add a fourth: the President’s attempts to pressure the government of a foreign country, Ukraine, to investigate a rival candidate in the 2020 presidential election—itself a sufficient basis, but potentially exacerbated by the President’s allegedly related decision to withhold diplomatically important calls and meetings and possibly also U.S. military aid to that country as leverage. 

Obstruction of the Mueller investigation

Conspiracy to defraud campaign finance law

Acceptance of emoluments

Obstruction of Congressional investigations

Attempts to pressure Ukraine to investigate rival

We understand that some may have resisted earlier calls for impeachment on the basis that the American people will soon have an opportunity to decide whether President Trump deserves to remain in office, but that position is no longer tenable. President Trump’s brazen attempt to get a foreign government to manufacture dirt about a rival 2020 candidate that he can weaponize calls into question whether President Trump will permit a free and fair election in 2020. His apparent misuse of classified computer system to conceal his conduct and his withholding of military aid to place pressure on Ukraine also indicates that the President may have jeopardized national security for his personal gain.

This is a defining moment for our republic. If a president can openly use the powers of his office to pressure a foreign power to attack his political rival, then our partisan loyalties will have proven stronger than our resolve to preserve, protect, and defend the Constitution. The time has come for all Americans and all members of Congress to act on our resolve that government of the people, by the people, and for the people shall not perish during this presidency

We understand that some may have resisted earlier calls for impeachment on the basis that the American people will soon have an opportunity to decide whether President Trump deserves to remain in office, but that position is no longer tenable. President Trump’s brazen attempt to get a foreign government to manufacture dirt about a rival 2020 candidate that he can weaponize calls into question whether President Trump will permit a free and fair election in 2020. His apparent misuse of classified computer system to conceal his conduct and his withholding of military aid to place pressure on Ukraine also indicates that the President may have jeopardized national security for his personal gain.

This is a defining moment for our republic. If a president can openly use the powers of his office to pressure a foreign power to attack his political rival, then our partisan loyalties will have proven stronger than our resolve to preserve, protect, and defend the Constitution. The time has come for all Americans and all members of Congress to act on our resolve that government of the people, by the people, and for the people shall not perish during this presidency. 

The Constitution vests Congress with the exclusive power and solemn responsibility of holding a president accountable while he is in office. As Special Counsel Mueller recently explained, Department of Justice policy states that “the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.” That process is impeachment. Article I of our Constitution vests the House of Representatives with the power to accuse a president of committing “Treason, Bribery, or other high Crimes and Misdemeanors” and the Senate with the power to try all impeachments and convict if it deems a president’s removal from office both merited and wise. The term “high Crimes and Misdemeanors” refers to serious abuses of official power (Sunstein at 36-37). As Alexander Hamilton explained in Federalist 65, impeachment proceedings are reserved for “offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” 

To call for a formal impeachment inquiry to begin is not to prejudge its outcome. It is to acknowledge that the preconditions for Congress to initiate that process have undoubtedly been met. The key test is whether a president’s pattern of conduct would merit congressional scrutiny irrespective of the policies he has pursued or the party with whom he identifies. 

That test has been satisfied: any president who obstructs an investigation into a foreign power’s attack on our election (and his own conduct), who participates in a scheme to violate federal election law during his campaign for president and covers up those offenses after entering office, or who accepts foreign and domestic emoluments in violation of the Constitution has engaged in conduct that potentially merits impeachment and removal from office.

This decision is one that CREW reaches with great reluctance. Although CREW has not hesitated to challenge President Trump’s unlawful actions in court, file complaints seeking accountability for serious ethical lapses and misconduct, or comment on how the president’s actions may have violated criminal standards of conduct, the health of any constitutional democracy depends on its actors exhibiting forbearance and restraint. 

CREW’s call for an impeachment inquiry is grounded in the solemn realization that as a nation, we have exhausted other avenues to achieve executive branch accountability. None of what we have experienced over the last two and a half years was inevitable. From the outset of his administration, President Trump closed off the most important avenue to accountability by failing to set an example of ethical conduct and demand the same from his associates. 

President Trump’s failures in ethical and responsible leadership are apparent in each course of conduct that should be scrutinized in an impeachment inquiry. President Trump could have ensured that the Russia investigation was conducted with the independence and cooperation from his office and associates that it deserved, but he did not. Instead, the Mueller Report sets out clear evidence that President Trump repeatedly sought to obstruct and curtail the investigation—especially after it became clear that his own conduct was under scrutiny. 

Then-candidate Trump could have complied with federal campaign finance laws by refusing to accept unlawful contributions, but he did not. Instead, to silence women who alleged they had affairs with him, then-candidate Trump apparently caused others to violate those laws on his behalf, failed to report those unlawful contributions as the law requires, and—during his first year in office—participated in a criminal scheme to cover up those crimes by reimbursing his co-conspirator and personal attorney Michael Cohen and lying to federal ethics officials about his liability to Cohen. 

Like his predecessors, President Trump could have taken active measures to avoid conflicts of interest, including by divesting from his businesses, but he did not. Instead, President Trump chose to continue profiting from his enterprises and thereby violate the Foreign and Domestic Emoluments Clauses whenever he received a profit, gain, or advantage from a foreign or domestic government doing business with his companies. 

In recent months, the president and his associates have closed off other avenues to accountability. Despite compiling evidence of potential obstruction of justice by the president in at least thirteen episodes, Special Counsel Mueller followed Department of Justice policy stating that a sitting president cannot be indicted. Even though that policy could be reconsidered, in William Barr, President Trump has appointed an Attorney General who has made clear that he intends to use the powers of his office to protect the president at all costs. In short, the outcome is clear: President Trump will not face criminal indictment as long as he is in office even though if any ordinary American had engaged in similar conduct, they would likely be indicted. 

The president, by and through subordinate executive branch officials as well as outside entities including his businesses, has also attempted to stonewall Congress’s efforts to investigate his misconduct. This obstruction of Congress includes matters central to the president’s potentially impeachable conduct, such as the administration’s refusal to comply with Congressional subpoenas requesting an unredacted version of the Mueller Report and underlying investigative materials and the administration’s assertion of dubious privileges and immunities to prevent key government witnesses from testifying or to limit the scope of their testimony. In April, President Trump stated that he and his administration would be “fighting all the subpoenas,” and they have made good on their promise. By asserting baseless privileges and immunities in response to Congressional subpoenas and forcing Congress to litigate each appearance in court, President Trump and his associates are interfering with the basic checks and balances of our Constitution. 

As a nonpartisan watchdog committed to rooting out unethical and irresponsible conduct by government officials, CREW would be abdicating its mission if we were to accept either President Trump’s conduct or his assault on accountability as the new normal. By openly and repeatedly violating our constitutional norms and by layering obstructive act upon obstructive act, President Trump has threatened to dismantle the proposition that no person is above the law. 

At the start of each Congress, members of the House of Representatives and Senate take an oath to support and defend the Constitution. We have arrived at a critical juncture for them to act on those words. A growing chorus of Members have called for a formal impeachment inquiry to begin. In our view, those calling for an impeachment inquiry to begin have appropriately weighed their obligation to consider the precedent that would be set if President Trump’s conduct were to go unchecked. They have recognized that, particularly given President Trump’s unprecedented efforts to undermine every other form of oversight or accountability, resorting to a formal impeachment inquiry is the only way for Congress to fulfill its obligation to check the extraordinary abuses of executive power that we have witnessed over the last two and a half years.

The greatest risk at this moment in our history is not merely that we will fail to seek accountability for conduct that is incompatible with our constitutional democracy—it is that we will send a clear message to current and future would-be authoritarians that our institutions cannot withstand a naked assault on the rule of law.

Only a single committee vested with authority to conduct a formal impeachment inquiry can assume the responsibilities of assessing whether a president has committed “Treason, Bribery, or other high Crimes and Misdemeanors,” of drafting articles of impeachment if Congress determines that constitutional standard for a president’s removal from office has been met, and of articulating why impeachment is necessary should they decide it is. Although the House Judiciary Committee, the House Intelligence Committee, the House Oversight Committee, and the House Ways and Means Committee have made significant contributions through their investigative efforts into the matters described below, we believe it is time for the House to either create a special committee or delegate to an existing committee jurisdiction over all matters deemed relevant to the potential impeachment of the president. 

For those reasons, a single committee should have jurisdiction to investigate President Trump’s obstruction of justice, participation in a scheme to defraud the enforcement of federal election and ethics laws, and unconstitutional acceptance of foreign and domestic emoluments. In this section, we explain why each of these matters merits congressional attention in a forum where exercising Congress’s impeachment power is explicitly under consideration. We also summarize the key allegations that will be central to any inquiry into the president’s obstruction of justice, participation in a scheme to defraud enforcement of campaign finance laws, and violations of the Foreign and Domestic Emoluments Clauses. In so doing, we rely on the facts as they have been presented in official documents, other primary source materials, and reliable public reports. The allegations we describe are only a starting point. Congress will have the ultimate responsibility of determining the scope of conduct it considers to be impeachable, what evidence it deems actionable, and ultimately whether impeachment is appropriate. 

Obstructing the investigation of Russia’s attack on the 2016 election and President Trump’s conduct

The Report On The Investigation Into Russian Interference In The 2016 Presidential Election (“Mueller Report”) contains substantial evidence that President Trump prevented, obstructed, and impeded the administration of justice, in violation of his constitutional oath to faithfully execute the office of the 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. 

President Trump’s apparent obstruction of justice must be the subject of an impeachment inquiry because undermining the ability of federal proceedings to determine facts and deliver justice is particularly harmful to the rule of law. As Special Counsel Mueller explained, “When a subject of an investigation obstructs that investigation or lies to investigators, it strikes at the core of the government’s effort to find the truth and hold wrongdoers accountable.” That concern is pronounced and constitutionally repugnant when the individual in question is vested with extraordinary power to influence federal proceedings and has a specific constitutional obligation to take care that the law is faithfully executed. 

Obstruction of justice is also particularly serious when the conduct is targeted at federal proceedings relating to a criminal attack by a foreign power on our election. As detailed in the Mueller Report and court filings, the Russian government perpetrated a two-pronged attack on the United States during the 2016 election. Russia’s attack included a social media campaign that favored presidential candidate Donald J. Trump and disparaged presidential candidate Hillary Clinton, including by organizing events in support of then-candidate Trump. The attack also featured a Russian intelligence service-led computer-intrusion operation against entities, employees, and volunteers working on the Clinton Campaign and the release of documents stolen from those individuals and entities to the public via intermediaries, including WikiLeaks. Although the Special Counsel “investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities,” it established that the presidential campaign of Donald J. Trump and its associates had numerous links to individuals with ties to the Russian government and “showed interest in WikiLeaks’s releases of documents and welcomed their potential to damage candidate Clinton.” 

Volume II of the Mueller Report is the starting point for assessing President Trump’s apparent obstruction of justice. The conduct described in that document is so damning that over a thousand former federal prosecutors signed a statement asserting that President Trump’s conduct “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.” Although Special Counsel Mueller declined to reach a traditional prosecutorial judgment regarding the president’s obstruction because of that policy, the Mueller Report pointedly stated, 

if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

In our view, Special Counsel Mueller could not exonerate the president because there is substantial evidence that he repeatedly sought to obstruct an investigation into Russia’s attack on the central feature of our democracy—election, by the people, of their president and congressional representatives. The seriousness of that attack is laid out in two of the federal grand jury indictments that the Special Counsel obtained: one of them charged the Russian military agents who stole and released information from the Clinton campaign in a manner calculated to hurt her candidacy and help the president; the other charged Russian individuals and entities that used fraudulent social media accounts to divide and influence American public opinion, again with the goal of denigrating Clinton and boosting then-candidate Trump. The evidence assembled by Mueller indicates that by firing, attempting to fire, and threatening to fire those in charge of the investigation, by asking associates to lie to the press and create false records, and by dangling pardons to his associates to influence their testimony or cooperation, President Trump engaged in a course of conduct designed to delay, impede, and obstruct federal proceedings critical to protecting our democracy.

Mueller stopped short of accusing the president of wrongdoing because he was not empowered to make that call. It is past time for Congress to pick up where Mueller left off. On two occasions, presidential obstruction of justice has been assessed to be an impeachable high crime or misdemeanor: President Clinton was impeached but not convicted for perjury and obstruction of justice, and President Nixon resigned after the House Judiciary Committee approved a resolution containing three articles of impeachment, including one for obstruction of justice. While federal criminal law may help Congress gauge the seriousness of presidential misconduct, it is important to recognize that presidential abuses of power need not be indictable violations of federal criminal law to constitute impeachable “high Crimes or Misdemeanors.” The historical record indicates that the Framers of the Constitution intended to empower Congress with the ability to remove officials who deviated from their duties including by abusing the powers of their office, engaging in corrupt acts, or committing other injuries to the nation (Sunstein, 34-63; Tribe and Matz, pp 45-47).

An impeachment inquiry is needed to assess whether Donald J. Trump, using the power of his high office, personally and through his close subordinates and agents in a course of conduct or plan designed to delay, impede, and obstruct the investigation of Russian interference in the 2016 election, cover up and conceal the extent of the Trump campaign’s contacts with Russia and WikiLeaks, and conceal the existence of other unlawful conduct that he and his associates engaged in during his campaign, transition, and presidency.

This inquiry should assess a course of alleged conduct that includes President Trump’s: 

• Misrepresenting to the American people, by and through his associates, the extent of his campaign and transition’s contacts with Russia; 
• Directing subordinates to publicly clear him of wrongdoing, directing subordinates to make false statements, and directing subordinates to create false records;
• Demanding loyalty from the FBI Director and requesting that he discontinue a criminal investigation into Michael Flynn, the president’s outgoing national security advisor;
• Pressuring the Attorney General not to recuse from the Russia investigation and to unrecuse in order to control or confine the investigation; 
• Firing the FBI Director for refusing to publicly clear the president of wrongdoing and asserting false, pretextual reasons for the FBI Director’s termination;
• Directing the White House Counsel to ask Deputy Attorney General Rosenstein to fire the Special Counsel on the specious grounds that the Special Counsel had disqualifying conflicts of interest; 
• Seeking to curtail the Special Counsel investigation, including by asking his former campaign manager Corey Lewandowski to tell the Attorney General to limit the scope of that investigation and by later asking the White House Chief of Staff to obtain the Attorney General’s resignation;
• Directing White House Counsel Don McGahn to deny true reports that President Trump had tried to remove the Special Counsel and to write a letter “for our records” falsely stating that President Trump had not directed him to have the Special Counsel removed;
• By and through his White House Staff Secretary Rob Porter, threatening to terminate White House Counsel McGahn if he did not comply with the president’s request to create a false record; 
• By and through public statements and private messages from his private attorneys, dangling the possibility of pardons to influence actual or potential testimony of Michael Cohen, Michael Flynn, Paul Manafort, and at least one other witness and/or the cooperation of these individuals with federal investigators; and
• Engaging in at least four episodes of obstructive conduct that would likely satisfy the criteria for criminal indictment if he were not the sitting president of the United States.

The inquiry should determine whether, in engaging in this obstructive course of conduct or plan, Donald J. Trump appears to have acted in a manner contrary to his trust as president and subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States.

 

Participation in a Scheme to Defraud Enforcement of Federal Campaign Finance and Ethics Laws and Cover Up Associated Crimes 

President Trump’s participation in a scheme to violate federal campaign finance and ethics laws and cover up those offenses must also be the subject of a formal impeachment inquiry. There is compelling evidence that in a course of conduct that began when he was a candidate for president of the United States and continued after he assumed the office, Donald J. Trump, in violation of his constitutional oath to faithfully 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, engaged in a scheme to defraud the American people and impede enforcement of federal campaign finance and ethics laws by causing campaign finance crimes, conspiring to conceal them, and making criminal false statements. 

This conduct must be the subject of an impeachment inquiry because it appears to have involved criminal acts to subvert the laws that protect the fairness of our elections, participation in a scheme to cover up those violations that continued at least throughout his first year in office, and a potentially criminal false statement by President Trump during his first year in office. Although it is possible that the President could be indicted after leaving office for his apparent participation in these crimes, federal prosecutors in the Southern District of New York who conducted the campaign finance investigation are also bound by DOJ’s policy of not indicting a sitting president. For that reason, Congress is the only forum in which the president can face true accountability for his conduct as long as he is in office. 

The fact that some of this conduct occurred while President Trump was a candidate for office rather than wielding official power does not immunize it from congressional scrutiny. The Framers of the Constitution were “practical men” and “repeatedly described corrupt acquisition of the presidency as a paradigm case for impeachment” (Tribe and Matz at 60; see also Sunstein at 122). Federal bribery law, which criminalizes certain conduct after an individual has been nominated as a candidate for public office, reflects the same practical judgment. It also bears noting that in any event, President Trump’s participation in the scheme to commit and cover up election crimes extended into the first year of his presidency and likely involved a false statement on a disclosure form that he was required to submit to federal ethics authorities. Congress would be justified in concluding that a president’s efforts to undermine enforcement of federal campaign finance laws could constitute a high crime or misdemeanor meriting his impeachment and removal from office. 

The facts of President Trump’s participation in this scheme to defraud the American people have been laid out by federal prosecutors in court filings, detailed in recently unsealed FBI affidavits and investigative warrants, described in detail by President Trump’s private attorney Michael Cohen in sworn congressional testimony, reported extensively by news outlets, and analyzed comprehensively in a CREW report. During his campaign for president, then-candidate Trump, in coordination with several individuals at American Media Inc. (AMI, the parent company of the National Enquirer) and Cohen, caused unlawful campaign contributions to be made on his behalf in the form of hush-money payments to two women who claimed they had affairs with then-candidate Trump. AMI’s Chairman and CEO David Pecker met with Cohen (and reportedly then-candidate Trump) in 2015 and offered the candidate help suppressing negative stories. In 2016, AMI followed through on the offer by paying Karen McDougal $150,000 for the rights to her story that she and then-candidate Trump had an affair, then suppressed it. This unlawful contribution – corporations are not permitted to make campaign contributions – was apparently made on then-candidate Trump’s behalf, in coordination with Cohen and likely with then-candidate Trump’s knowledge. Cohen admitted that later in 2016 and at then-candidate Trump’s direction, he paid a second woman—Stephanie Clifford (Stormy Daniels)—$130,000 for her silence. 

The potential scheme to cover up these offenses continued throughout 2017, the first year of Trump’s presidency. In sworn congressional testimony, Cohen admitted that he was reimbursed throughout 2017 in eleven installments totaling $420,000 and has produced some of the checks through which he was reimbursed. Some of them were personal checks signed by the President and some of which were from the President’s trust and signed by Donald Trump Jr. and a senior executive of the Trump Organization. These payments to Cohen throughout 2017 to compensate him for his unlawful campaign contribution in 2016 were potentially acts in furtherance of the scheme. 

In addition, on June 14, 2017, President Trump certified that the statements contained on his public financial disclosure form were “true, complete and correct” to the best of his knowledge. This document required him to disclose all liabilities exceeding $10,000; however, the president omitted his liability to Cohen for the Clifford payment. President Trump likely knew of this liability because in 2016, he caused Cohen to make the aforementioned unlawful campaign contributions in excess of the individual limit for the purpose of silencing a woman who claimed she had an affair with then-candidate Trump. President Trump also likely knew of this liability because of the reimbursement payments that were made to Cohen throughout 2017—several of which were on personal checks that President Trump personally signed, and one of which was signed just weeks before the President failed to disclose the liability on his financial disclosure form. On May 16, 2018, the Office of Government Ethics (OGE) notified Deputy Attorney General Rosenstein of OGE’s determination that “based on the information provided as a note to part 8, the payment made by Mr. Cohen is required to be reported as a liability.” OGE further stated that Rosenstein might “find the disclosure relevant to any inquiry you may be pursuing regarding the President’s prior report that was signed on June 14, 2017.”

The United States Attorney’s Office for the Southern District of New York reportedly closed its investigation and has signaled that it does not intend to seek additional charges. That decision was reportedly influenced by DOJ’s policy of not indicting a sitting president and potentially represents a second category of apparently criminal conduct for which the president is currently escaping accountability. 

An impeachment inquiry is therefore needed to assess whether Donald J. Trump, as a candidate for high office and then President of the United States, engaged personally and through his close subordinates and agents in a course of conduct or scheme to defraud the American People and impede the enforcement of campaign finance laws of the United States of America, cover up and conceal that criminal conduct during his campaign and presidency, and impede enforcement of federal ethics laws by failing to disclose his liability to Michael Cohen.

This inquiry should assess a course of alleged conduct that includes President Trump’s:

• Entering into an agreement with AMI and Pecker in August 2015 to prevent unflattering stories about then-candidate Trump from surfacing;
• Personally, or by and through his agent Cohen, accepting Pecker’s help negotiating the purchase of McDougal’s story and other rights in the summer of 2016 for $150,000 and/or inducing AMI to purchase the rights to McDougal’s story about her alleged affair with then-candidate Trump by promising to reimburse AMI for the expense;
• Discussing with Cohen the “transfer of all of that info regarding our friend, David” in a conversation in which then-candidate Trump appeared to be aware of the specific amount that AMI paid McDougal for the rights to her story and in which then-candidate Trump also appeared to suggest that Cohen “pay with cash,” a form of payment that would have concealed the transaction;
• Facilitating, through his agent, Cohen, AMI’s contribution to his campaign of the rights to McDougal’s story by establishing a shell corporation, Resolution Consultants LLC, or directing Cohen to accept the transfer of rights to McDougal’s story in September 2016;
• Learning from Pecker that a second woman, Clifford, was attempting to sell the rights to her story that she had an affair with then-candidate Trump in 2006 and 2007 and discussing the purchase of Clifford’s silence in the weeks before the 2016 election;
• Reportedly coordinating with Cohen and Trump Organization CEO Alan Weisselberg about the mechanics of paying Clifford without disclosing then-candidate Trump’s identity and reportedly instructing Cohen in reference to the deal with Clifford, to “get it done;”
• Using a conduit, Essential Consultants LLC, to purchase Clifford’s silence and conceal the Clifford transaction;
• Inducing Cohen’s $130,000 payment to Clifford, which Cohen has admitted was intended “to ensure that she did not publicize damaging allegations before the 2016 presidential election and thereby influence that election;”
• Failing to disclose (or causing his campaign to fail to disclose) AMI’s in-kind contribution of the rights to McDougal’s story as well as Cohen’s in-kind contribution of purchasing Clifford’s silence;
• Reimbursing Cohen for the personal funds he used to purchase Clifford’s silence and paying Cohen a $60,000 bonus on top of the costs he incurred; 
• Using his personal trust and signing personal checks to Cohen to reimburse him in eleven payments throughout 2017, the first year of his presidency; 
• Failing to disclose his liability to Cohen on his 2017 public financial disclosure form, on which he was required to report the “identity and category of value of the total liabilities owed to any creditor . . . which exceed $10,000 at any time during the preceding calendar year.” 

 

The impeachment inquiry should determine whether in participating in this scheme to defraud the American People and impede enforcement of federal campaign finance and ethics laws, Donald J. Trump acted in a manner contrary to his trust as president and subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States.

Abusing the Powers of the Presidency for Personal Gain, including by Allegedly Violating the Foreign and Domestic Emoluments Clauses of the United States Constitution

President Trump’s misuse of public office for private gain including by apparently violating the Foreign and Domestic Emoluments Clauses also must be the subject of an impeachment inquiry. In his conduct while President of the United States, Donald J. Trump, in violation of his constitutional oath to faithfully 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 accepted profits, gains, or advantages from foreign and state governments in violation of the Foreign and Domestic Emoluments Clauses. 

This conduct must be the subject of an impeachment inquiry because it involves violations of two anti-corruption provisions that our founders thought so important that they incorporated them into the text of our Constitution. Rather than following the example of his predecessors and taking steps to avoid violating these Clauses, President Trump has instead sought to use his public office for private gain. There is evidence that the framers of the Constitution viewed receipt of foreign emoluments as impeachable offenses. As Edmund Jennings Randolph, a Virginia Delegate to the Constitutional Convention, stated at the Virginia Ratifying Convention, a president “may be impeached” for “receiving emoluments from foreign powers.” (Tribe and Matz at 67-68). 

During the transition period between his election and inauguration, President Trump chose not to meaningfully separate himself from privately owned corporations and, upon taking office, President Trump began violating the Foreign and Domestic Emoluments Clauses. By accepting profits, gains, or advantages from foreign governments at his properties and though his businesses, President Trump violated the Foreign Emoluments Clause, which bars any federal official from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State” without Congress’s consent. Similarly, by accepting profits, gains, or advantages from state governments and components of the federal government at his properties and though his businesses, President Trump has also violated the Domestic Emoluments Clause, which bars the president from receiving any “Emolument from the United States, or any of them” other than his statutorily set compensation.

This conduct is no accident. President Trump has also used the powers of his office for his own personal enrichment in other ways. By hosting taxpayer-funded events at properties owned by his private businesses, President Trump has caused federal funds to be spent at those properties. By making at least 350 trips to luxury properties and members-only resorts owned by his businesses (according to data compiled by CREW), President Trump has signaled that those who pay for access to his properties will have access to power. President Trump’s apparent violations of the Emoluments Clauses are therefore not an incidental consequence of a businessman’s election to the presidency; instead, President Trump has engaged in a pattern of misusing his public office for his own personal enrichment. His continued ownership of his businesses has led to conflicts of interest that potentially affect virtually every aspect of his presidency, from tax and regulatory policy to foreign policy, but it is specifically profits, gains, or advantages from foreign and domestic governments that so concerned the Framers of the Constitution that they expressly prohibited the president’s receipt of them in our founding document.

An impeachment inquiry is therefore needed to assess whether Donald J. Trump, as president of the United States, engaged personally and through his close subordinates and agents, has violated the Foreign Emoluments Clause by receiving, without the consent of Congress, profits, gains, or advantages directly or indirectly from foreign governments, and violated the Domestic Emoluments Clause by receiving profits, gains, or advantages from state governments and components of the federal government.

This inquiry should assess President Trump’s:

• Acceptance of foreign emoluments at the Trump International Hotel in Washington, D.C. where,
  • Soon after President Trump’s inauguration in 2017, the Kingdom of Saudi Arabia, a foreign state, spent thousands of dollars on rooms, catering, and parking; 
  • in February 2017, 2018, and 2019, the Embassy of Kuwait held its National Day celebration; 
  • on or about April 6, 2017, Ambassador and Permanent Representative of Georgia to the United Nations Kaha Imnadze stayed; 
  • on or about September 11-12, 2017, then-Prime Minister of Malaysia Najib Razak and his delegation stayed;
  • on or about June 12, 2018, the Embassy of the Philippines held its independence day celebration;
  • on or about March 22-23, 2019, Prime Minister of Romania Viorica Dancila stayed. 
• Acceptance of foreign emoluments at Trump Tower on Fifth Avenue in New York City, including from the Industrial and Commercial Bank of China, a Chinese majority-state-owned enterprise that is a tenant of the building; 
• Acceptance of foreign emoluments at Trump World Tower, where several foreign governments own luxury condominiums;
• Acceptance of foreign emoluments in the form of trademarks awarded to the Trump Organization by the People’s Republic of China in February 2017; 
• Acceptance of foreign emoluments at Trump Organization golf courses, hotels, and real estate projects in foreign countries, including the United Arab Emirates, Indonesia, and other locations; 
• Acceptance of domestic emoluments in the form of spending by the State of Maine of approximately $22,000 at the Trump International Hotel in Washington, D.C.;
• Acceptance of domestic emoluments in the form of the General Services Administration’s forbearance from enforcing the terms of Trump Old Post Office’s LLC’s lease for the Trump International Hotel in Washington D.C., which prohibits any “elected official of the Government of the United States . . . [from being] admitted to any share or part of this Lease, or to any benefit that may arise therefrom;”
• Acceptance of domestic emoluments at his businesses and properties in the form of spending by federal government agencies including the Department of Agriculture, Department of Defense, General Services Administration, and the Internal Revenue Service of tens of thousands of dollars. 

 

The impeachment inquiry should determine whether in receiving or accepting these foreign and domestic emoluments, Donald J. Trump acted in a manner contrary to his trust as president and subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States.

President Trump’s Obstruction of Congressional Investigations

Although CREW’s call for an impeachment inquiry is premised on the three matters discussed above (obstruction of justice, participation in a scheme to defraud enforcement of federal campaign finance and ethics laws, and receipt of unconstitutional foreign and domestic emoluments), it is informed by a fourth category of conduct that might become an additional basis: obstruction of congressional investigations of impeachable conduct. 

Presidential obstruction of congressional proceedings is no less harmful to the constitutional order than obstruction of criminal ones. That is especially true in cases of presidential misconduct because Congress is the only body that can accuse a president of wrongdoing. If a president can obstruct a criminal investigation without facing indictment while in office and then successfully obstruct a congressional investigation of that obstruction, he is accountable to no one and is functionally above the law. For that reason, Congress must be able to wield the investigative tools that are inseparable from its impeachment authority. 

There is clear precedent for impeachment of a president on this basis. One of the three articles of impeachment that the House Judiciary Committee drafted and approved prior to President Nixon’s resignation accused him of willfully disobeying Congressional subpoenas, “substituting his judgment as to what materials were necessary for the inquiry, interposed the powers of the Presidency against the lawful subpoenas of the House of Representatives, thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives.”

Already, by and through subordinate executive branch officials, President Trump has caused the executive branch to defy duly issued subpoenas for records and testimony that Congress has sought to advance its legislative and oversight agenda. By and through his attorneys and businesses, President Trump has interfered with Congress’s ability to obtain records and testimony from third parties. Using unprecedented and legally expansive assertions of executive privilege and immunity, President Trump has prevented key witnesses to his own obstruction of justice from providing testimony to Congress. Despite this unprecedented stonewalling, Congress may yet succeed in enforcing its subpoenas in litigation. 

In considering whether to pursue this additional rationale for impeachment, the committee tasked with responsibility to conduct the impeachment inquiry should consider the extent to which the president and his administration cooperates with congressional demands for information and witnesses. 

Should President Trump nevertheless refuse to comply with Congress’s legitimate exercise of its investigative powers, such conduct should be subject to ongoing scrutiny by the committee charged with conducting an impeachment inquiry and, if necessary, be considered as a fourth, independent basis for the president’s removal from office. 

Asking a foreign country to investigate a rival candidate in the 2020 presidential election and other matters for President Trump’s personal political gain

The House of Representatives has launched an impeachment inquiry into President Trump’s latest and most egregious abuse of power: his request that the Ukrainian government investigate a rival candidate in the 2020 election. Free and fair elections are a core feature of our constitutional democracy, and they are only possible if those who hold office do not use their powers to gain unfair advantages over those who seek their office. By asking the President of Ukraine to investigate former Vice President Joseph Biden and his son, President Trump appears to have sought to use the powers of his office to secure an unfair and unlawful advantage. In so doing, President Trump appears to have violated his oath to preserve, protect, and defend our Constitution. 

In 1974, President Nixon resigned his office after criminal and congressional investigations showed that, among other things, he or senior aides directed and covered up a scheme to gain an unfair advantage in the 1972 election by spying on the Democratic party. Although the five men who broke into the Democratic National Committee headquarters at the Watergate complex in Washington D.C. were apprehended prior to the election, it took almost two years for the full scope of the President’s involvement and obstruction to come to light. 

When it did, the House Judiciary Committee deemed Nixon’s participation in and cover up of the scheme to be impeachable “high crimes and misdemeanors.” The Committee accused President Nixon of engaging in a course of conduct that included “failing to act when he knew or had reason to know that his close subordinates endeavored to impede and frustrate lawful inquiries by duly constituted executive, judicial and legislative entities concerning the unlawful entry into the headquarters of the Democratic National Committee, and the cover-up thereof . . . .” The Committee also accused Nixon of “directing or authorizing [executive] agencies or personnel to conduct or continue electronic surveillance or other investigations for purposes unrelated to national security, the enforcement of laws, or any other lawful function of his office.” 

President Trump’s request that Ukraine investigate his political rival and attempts by the executive branch to cover up that request are just as—if not more—egregious. According to a memorandum of the July 25, 2019 telephone conversation, President Trump stated his view that “the United States has been very very good to Ukraine” and that “I wouldn’t say that it’s reciprocal necessarily because things are happening that are not good but the United States has been very very good to Ukraine.” After Ukrainian President Volodymyr Zelensky stated that Ukraine was “almost ready to buy more Javelins [anti tank weapons] from the United States for defense purposes,” President Trump responded, “I would like you to do us a favor though because our country has been through a lot and Ukraine knows a lot about it.”

President Trump proceeded to ask Zelensky for two favors: first, that Zelensky investigate a conspiracy theory that has been used by Trump and his allies to discredit the Department of Justice’s investigation of Russian interference in the 2016 election (“Russia investigation”). The theory, which has been discredited by federal prosecutors and President Trump’s former homeland security adviser, claims that CrowdStrike, a cybersecurity firm hired by the Democratic National Committee to investigate the 2016 hack of its servers fabricated evidence that Russia was behind the attack. Second, President Trump asked Zelensky to investigate former Vice President Joe Biden, a rival candidate in the 2020 presidential election, and to have a follow-up conversation about it with Trump’s personal attorney, Rudy Giuliani, as well as Attorney General William Barr. 

Before the call, President Trump reportedly told his acting Chief of Staff, Mick Mulvaney, to put a hold on $391 million in military aid to Ukraine that was intended to help that country counter ongoing threats to its sovereignty from Russia. The Trump administration’s withholding of military aid blindsided senior Ukrainian officials. By September, Ukranian officials reportedly expressed concern to U.S. Senators that the funds were being withheld as a penalty for resisting pressure to investigate the Bidens. 

Congress had previously approved two batches of military aid for Ukraine: Department of Defense aid amounting to $250 million for military equipment and State Department aid amounting to $141 for maritime security and other efforts to help Ukraine combat Russian aggression. In May, a Department of Defense official certified in a letter to four congressional committees that “the Government of Ukraine [had] taken substantial actions to make defense institutional reforms for the purpose of decreasing corruption [and] increasing accountability.” Agency officials were reportedly instructed to tell members of Congress that delays in transmitting military aid to Ukraine were due to an “interagency process” but to provide no further information. 

In sum, it appears that President Trump’s decision to request favors of Zelensky and his order to withhold important diplomatic contacts and military aide from Ukraine were part of a concerted effort to get a foreign power to take action for his personal political gain. This effort began prior to the July 25th phone call, and continued afterwards, as evidenced by the recently-released cache of text messages sent and received by senior diplomats. The text messages make clear that American officials, apparently at the behest of the President, conditioned calls and face-to-face meetings with President Trump, which the new Ukrainian president viewed as crucial, on Ukraine signaling its intention to pursue the investigations President Trump wanted. 

Despite the fact that Ukraine’s prosecutor general has said that there is no evidence of wrongdoing by Biden and his son, reports emerged in May 2019 that Giuliani sought to meet with Ukraine’s incoming government to advocate for investigation of Biden and the origins of the FBI and Special Counsel’s Russia investigation. Giuliani explained his plans to travel to Ukraine during this period by noting that the Ukrainian government had information that “will be very, very helpful to my client, and may turn out to be helpful to my government,” although Giuliani ultimately canceled his trip soon after his plans were revealed. President Trump also reportedly instructed Vice President Mike Pence not to attend Zelensky’s inauguration at a time that Zelensky and Ukraine’s incoming government were seeking recognition and support from the Trump administration. In the months after the July 25 call, President Trump and his allies continued to pressure the Ukrainian government, both in public and in private, to investigate Biden. 

There is also substantial evidence that President Trump and other administration officials sought to cover up the July 25 phone call and a credible whistleblower complaint stating that President Trump had abused the powers of his office for political gain. By and through attorneys at the White House Counsel’s office and with the assistance of the Department of Justice, President Trump prevented a whistleblower complaint from being transmitted to Congress even though it had been deemed “credible” and a matter of “urgent concern” by the Inspector General of the Intelligence Community. In such circumstances, federal law requires that the Director of National Intelligence transmit the Inspector General’s determination and the whistleblower’s information to House and Senate Intelligence Committees. In addition, the Department of Justice decided not to pursue a criminal campaign finance investigation of the allegations, despite receiving a criminal referral from the general counsel of the Central Intelligence Agency. Only after House Speaker Nancy Pelosi announced an impeachment inquiry into these matters did the administration relent and release the complaint. 

The complaint alleges that the memorandum of conversation of the July 25 call as well as other politically sensitive records of the President’s conversations with foreign leaders were locked down and placed on a special system that is meant to “store and handle classified information of an especially sensitive nature.” Classifying information to “conceal violations of law, inefficiency, or administrative error” or to “prevent embarrassment to a person, organization or agency” is unlawful. It is further evidence that the President and those around him engaged in unlawful conduct for his personal benefit rather than acting in the best interests of the American people. 

Although an inquiry is merited, and Congress should take appropriate steps to gather and confirm all pertinent facts, many of the most critical facts are not in dispute. President Trump has acknowledged that his conversation with the Ukrainian president was largely about corruption and “the fact that we don’t want our people like Vice President Biden and his son (adding to the corruption).” That is precisely what the memorandum of July 25, 2019 call between Trump and Zelensky shows. On a separate occasion, President Trump suggested that aid to Ukraine was contingent on how the country handled claims of corruption. President Trump also confirmed that he withheld military aid (although he claims that he did so for other reasons). And Giuliani separately acknowledged that he has been in contact with Ukrainian officials to ask them to investigate Biden and his son and to attack the basis for the Department of Justice’s investigation of Trump campaign’s contacts with Russia in the 2016 election.

In sum, President Trump’s misuse of his office to pressure a foreign country to investigate a rival, his linking of critical diplomatic contacts or military aid to that investigation, and his administration’s cover up of this conduct are all strong, independent bases for an impeachment inquiry. The misuse of public office for private gain—such as pressuring a foreign power to take actions for one’s own political benefit—is precisely the kind of conduct the Framers had in mind when they gave Congress the power to impeach and remove a president. And although the president’s conduct need not violate criminal standards of conduct to be deemed by Congress to be impeachable “treason, bribery, or other high crimes and misdemeanors,” the fact that President Trump’s conduct might plausibly have constituted several federal felonies, including bribery, extortion, conspiracy, solicitation of an unlawful campaign contribution by a foreign national, and obstruction of justice underscores its seriousness. 

For these reasons, Congress is right to assess whether Donald J. Trump, using the power of his high office, in violation of his constitutional oath to preserve, protect, and defend the Constitution of the United States, sought to undermine a free and fair 2020 presidential election by asking and pressuring a foreign power to commence an investigation of his political adversary. The inquiry should also determine whether President Trump is unconstitutionally failing, without lawful cause or excuse, to produce evidence and testimony to congressional committees conducting oversight of these matters, and whether by and through his aides, he misused the Department of State, the Department of Defense, and the Department of Justice to advance this scheme.

This inquiry should assess a course of alleged conduct that includes President Trump’s:

• Requesting, personally and by and through his associates, that the government of Ukraine pursue investigations for his personal political benefit, including:
  • President Trump’s July 25, 2019 conversation with Ukrainian President Zelensky in which he asks for two favors: help investigating the origins of the Russia investigation and an investigation of former Vice President Biden and/or his son; 
  • President Trump’s October 3, 2019 statement in which he said, in reference to Ukraine, that “they should investigate the Bidens” and
  • Giuliani’s communications, personally and through intermediaries, with officials and other individuals associated with the Ukrainian government about investigating former Vice President Biden and/or his son and the origins of the Russia investigation;
• Withholding of military aid from Ukraine at the same time that President Trump and his associates were requesting that Ukraine investigate former Vice President Biden and/or his son and the origins of the Russia investigation;
• Withholding of diplomatically important calls and meetings between President Trump or Vice President Pence and President Zelensky pending commitments to investigate former Vice President Biden and/or his son and the origins of the Russia investigation;
• Requesting that other foreign governments and leaders help investigate the origins of the Russia investigation, including:
  • President Trump’s call with Boris Johnson, Prime Minister of the United Kingdom, in which Trump requested help discrediting the Russia investigation; and
  • President Trump’s call with Scott Morrison, Prime Minister of Australia, in which Trump requested help discrediting the Russia investigation;
• Requesting that other foreign governments investigate his political rivals, including:
  • President Trump’s October 3, 2019 statement that “China should start an investigation into the Bidens;” 
• Attempting to cover up the Ukraine call, the whistleblower complaint, and other evidence that President Trump was requesting that foreign governments take action for his political benefit, including:
  • The administration’s initial failure to disclose to Congress, as required by law, a whistleblower complaint deemed credible and pertaining to an “urgent matter” and credible;
  • The misuse of document classification and other efforts to conceal potentially damaging information about President Trump, including the nature and substance of his July 25 call with President Zelensky; 
  • The Department of Justice’s alleged failure to open an investigation into the merits of the criminal referral from the CIA’s General Counsel; and
  • Efforts to suppress evidence and intimidate potential witnesses, including the intelligence community whistleblower as well as agency officials and private citizens lawfully subpoenaed by Congress.