“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” – Presidential Oath of Office
“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” — Article II, Section 4, US Constitution
The US Constitution provides only two remedies to Presidents who are in violation of their oath of office. The first, impeachment, is outlined above. The second is the 25th Amendment, Section 4 of which reads in part:
“Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.”
The likelihood that Mike Pence and any Cabinet member, much less a majority, would take this step is vanishingly small. Their servility has been seen repeatedly in periodically televised Cabinet meetings in which each of the Department heads thank Trump for providing them the opportunity to destroy the country they control.
Removal by impeachment is probably equally unlikely, at least now. Even if articles of impeachment passed the house (which requires a simple majority), it is unlikely in the extreme that 2/3 of the Senate would vote for it. I initially opposed impeachment, but it is very clear that the Trump administration is pursuing a strategy of utter lawlessness by denying any and all requests for documents or even subpoenas. For this reason, I now support an inquiry as to whether impeachment is appropriate.
Subpoena literally means “under penalty.” There is no legal justification for Trump’s strategy of defying subpoenas, as was stated today in regard to his attempt to hide his taxes. No one is above the law, and the President’s duty (Article II, Section 3) is that “he shall take care that the laws be faithfully executed.” Executed here does not mean “kill off.” It means “carry out.” This is not a negotiable point.
Regardless of findings about obstruction of justice, Trump is currently obstructing Congress. This is invalid for at least 3 reasons.
First, an unbiased reading of the Mueller report makes it clear that Trump is not cleared of obstruction of justice. Quite the contrary. Mueller outlined 11 cases of possible obstruction, a number of which meet all three of his criteria for obstruction. What is clear is that Mueller deferred to the Office of Legal Counsel position that a sitting President cannot be indicted. However, this does not rule out additional investigation, as Mueller himself points out. In volume II, page 8, he states “[t]he conclusion that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.” The Mueller report clearly and repeatedly states “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.”
It is irrelevant whether Bill Barr, who misrepresented the Mueller report in his March letter to Congress, thinks he can decide what happened in each of the 11 cases Mueller raises. Barr is clearly exceeding his authority to protect his boss.
Second, Trump is attempting to prevent even former and personal employees from testifying. As an example, today, he directed Don McGahn to refuse to appear before Congress. But Mr. McGahn is no longer in the White House and cannot be so directed. Sadly, McGahn appears to be following Trump’s orders. This attempt is obstruction on its face, and does not fall within executive branch powers. However, based on the Mueller report, it clear that McGahn is an important witness, and Trump wants to prevent Congress, and thus, the American people, to find out what he has to say.
Third, Trump is trying to argue that the subpoenas amount to a “do over.” Aside from the pure childishness of this claim, it is irrelevant. Prior to January 20, 2017, Republican congress carried out 10 separate hearings on the Benghazi affair without a single indictment, not that that stops Sen. Graham from demanding an 11th. Thus, there is precedent to do further investigations.
I initially agreed with Nancy Pelosi that impeachment would not be productive. However, I have changed my mind. The President cannot be allowed to operate outside the law. The Republicans have shown an utter cowardice in responsibility to provide oversight on this President. It is interesting that they were more than willing to provide oversight over prior Democratic Presidents. Thus, they are being disingenuous in defending Trump from checks on his irrational behaviors and policies.
The responsibility for holding Trump accountable, then, falls to the Democrats. First, even if Trump is not removed, impeachment proceedings provide an extra level of power to subpoenas that are issued. This will provide a far firmer basis for Congress’ jurisdiction. Second, the proceedings, especially if televised, would provide an important educational function in showing how illegal Trump’s behavior has been. Finally, there is an ethical consideration, If an attempt is not made to hold a lawless President accountable, what is the purpose of the Constitution.
The President is neither preserving, nor protecting, nor defending the Constitution. At the bare minimum, Congress must make an inquiry as to whether impeachment hearings should be held.