Article I, Section 2, Clause 5 of the U.S. Constitution permits the U.S. House of Representatives of investigate and bring articles of impeachment against the President of the United States. Impeachment of the president can be brought for “Treason, Bribery, or High Crimes and Misdemeanors.”
From November 13 through November 21 of 2019, the U.S. House Intelligence Committee conducted five impeachment inquiry hearings into misconduct by President Donald J. Trump; namely, for “betrayal of his oath of office, a betrayal of our national security and betrayal of the integrity of our elections.”
Witnesses Testified to Serious Misconduct
Twelve current and former members of the U.S. government gave testimony that, in varying degrees, implicated the president in serious misconduct that indeed posed a threat to this nation’s national security.
The impeachment inquiry centered on a “whistleblower complaint” that the president during a July 25, 2019 telephone conversation that encouraged the President of Ukraine to interfere in the 2020 presidential election by investigating the president’s main political rival, former Vice President Joe Biden. The complaint charged that this demand posed a national security risk and constituted a serious abuse of presidential powers.
In the wake of the impeachment hearings, media reports have circulated that the Intelligence Committee is prepared to recommend to the House Judiciary Committee that three Articles of Impeachment be brought against the president: abuse of power, obstruction of justice, and contempt of Congress.
Criminal Bribery-18 U.S.C. § 201(b)
But this seems both unlikely and impractical.
The Federal Bribery Statute, 18 U.S.C. § 201(b), would pose serious problems for a criminal bribery charge under this statute. This statute is most often used to prosecute federal public officials for bribery. It would pose prosecutorial problems in a Trump prosecution because Ukrainian President Volodymyr Zelensky is not an American public official who can perform an “official act” within the meaning of the federal bribery statute.
18 U.S.C. § 201 (a)(1) provides: the term “public official” means “Member of Congress, Delegate, or Resident Commissioner, either before or after such official has qualified, or an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof, including the District of Columbia, in any official function, under or by authority of any such department, agency, or branch of Government, or a juror.”
18 U.S.C. § 201 (a)(3) provides: the term “official act” means “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.”
However, as pointed out by Ben Berwick and Justin Florence in a November 18, 2019 Lawfare blog:
“Last month, we and another colleague at Protect Democracy argued that the meaning of ‘bribery’ as the term is used in the Constitution goes beyond the criminal offense of bribery as defined in the U.S. Code. Because the Constitution predated the federal criminal code, the meaning of ‘bribery’ referenced in the Impeachment Clause cannot be found in the statutory prohibition on bribery; therefore, some modern constraints that Congress and courts have placed on that criminal offense are not relevant to the constitutional inquiry.”
What the definition of constitutional bribery was in 1788 when the U.S. Constitution was ratified remains uncertain. A point of reference, however, is that early English common law, dating back to 1384, required the same two basic components of the federal bribery statute: a public official and an official act.
It can reasonably be presumed that any court seeking to define the 1788 constitutional term of “bribery” would turn to the history of bribery under English common law. The question would most likely result in an analysis of whether the President of the United States was complicit in soliciting a bribe.
Other Impeachable Offenses
It is, however, abundantly clear from the public record that President Donald J. Trump has committed at least five impeachable federal misdemeanor offenses. They are:
- 18 U.S.C. §1512(c) – Tampering (harassing) witness, victim, or informant: Trump harassed and tampered with the Congressional witness Marie Yovanovitch during testimony before the House intelligence committee’s impeachment proceedings. Trump has harassed and intimidated the whistleblower in the Ukraine scandal.
- 18 U.S.C. § 1905 – Disclosure of confidential information: In May 2017 Trump disclosed highly classified information to Russian Foreign Minister Sergey Lavrov and Ambassador Sergey Kilysak that endangered life of a CIA Russian asset; and in August 2019 disclosed a classified photo via one of his tweets about a failed Iranian attempt to launch a satellite.
- 18 U.S.C. § 2074 – False weather reports: In September 2019 Trump released a false weather report concerning Hurricane Dorian’s projected path.
Obstruction of Justice
There is also credible information in the public record—namely, the Mueller Report—that reveals at least 10 instances of federal obstruction of justice committed by President Trump during his first two and one-half years in office. Obstruction of justice is a high crime within the context of the impeachment clause.
Fitness for Office
Some argue that the President’s promotion of pro-Russian conspiracy theories that allege that it was Ukraine rather that Russia that meddled in the last Presidential election gives further support to possible removal through the 25th Amendment, that the President is unfit to hold office either because he is mentally unfit and unable to discharge the duties of the office.
Abuse of Power
Of the three Articles of Impeachment currently being considered against President Trump, the abuse of power is the more dominant. Writing in an October 3, 2019 blog for Just Security, law professor Frank O. Bowman, III wrote:
“Since the British invented impeachment in the 14th century as a parliamentary weapon against royal overreach and official misconduct, abuse of power has been on the short list of behaviors meriting impeachment. In Anglo-American practice, the essence of impeachable ‘abuse of power’ is the illegitimate use of power legitimately bestowed on the individual by virtue of his office.”
Anyone with a fifth-grade understanding of the American presidency understands that President Trump has abused the power of his presidency for unlawful personal profit, corrupt political benefit, and as a weapon to exact revenge against his real and/or imagined enemies. He has consistently throughout his presidency exhibited an utter contempt for the rule of law; has openly disregarded national security; has casually betrayed American allies to favor Russian President Vladimir Putin; has legitimized lies and misinformation and outlandish conspiracy theories to pit Americans against Americans; and has sown a white nationalism hatred that now infects every aspect of our society.
It is now likely that President Trump will be impeached by the House of Representatives. However, it is doubtful he will be removed from office by the Senate. What remains to be seen is whether Mr. Trump will one day be the first American president to become a convicted felon.