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Opinion ‘Impeachable’ and ‘illegal’ aren’t interchangeable

House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) in February. (Joshua Roberts/Reuters)

In a groundbreaking announcement, the House Judiciary Committee has opened a far-reaching investigation into President Trump and his associates:

House Judiciary Chairman Jerrold Nadler (D-NY) unveiled an investigation by the House Judiciary Committee into the alleged obstruction of justice, public corruption, and other abuses of power by President Trump, his associates, and members of his Administration. As a first step, the Committee has served document requests to 81 agencies, entities, and individuals believed to have information relevant to the investigation.
“Over the last several years, President Trump has evaded accountability for his near-daily attacks on our basic legal, ethical, and constitutional rules and norms,” said Chairman Jerrold Nadler. “Investigating these threats to the rule of law is an obligation of Congress and a core function of the House Judiciary Committee. We have seen the damage done to our democratic institutions in the two years that the Congress refused to conduct responsible oversight. Congress must provide a check on abuses of power. Equally, we must protect and respect the work of Special Counsel Mueller, but we cannot rely on others to do the investigative work for us. Our work is even more urgent after senior Justice Department officials have suggested that they may conceal the work of the Special Counsel’s investigation from the public.

The scope of the investigation is enormous, as the announcement lays out:

  • Obstruction of Justice, including the possibility of interference by the President and others in a number of criminal investigations and other official proceedings, as well as the alleged coverup of violations of the law;
  • Public Corruption, including potential violations of the emoluments clauses of the U.S. Constitution, conspiracy to violate federal campaign and financial reporting laws, and other criminal misuses of official positions for personal gain; and
  • Abuses of Power, including attacks on the press, the judiciary, and law enforcement agencies; misuse of the pardon power and other presidential authorities; and attempts to misuse the power of the Office of the Presidency.

Committee staff not authorized to speak on the record stress that the 81 document requests seek materials within two weeks, an effort to jump-start the investigation. This should not be seen as a definitive witness list, only a first round of requests. The committee has already begun efforts to “de-conflict” with both the Southern District of New York prosecutors and the special counsel so as not to interfere with those investigations.

It would be wrong to assume that this is the first step toward impeachment. Democratic leaders have made clear that absent bipartisan agreement that Trump must go, there is little point to impeaching in the House and then losing the trial in the Senate. Nadler’s investigation isn’t necessarily or even likely a prelude to impeachment, given Republicans’ refusal to put country above party. However, it is always possible that the findings will be so overwhelming that impeachment or resignation becomes a real possibility.

Let’s also keep in mind that the scope of the investigation is so expansive that it’s unlikely to be completed this year. If it does run into 2020, the election and not impeachment is most likely to determine Trump’s fate.

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It’s important to understand that the House Judiciary Committee will look at three categories: crimes that are not impeachable, crimes that are impeachable and noncriminal actions that are impeachable.

Certainly, there are crimes that many would not consider of sufficient severity to justify impeachment. That’s why the constitutional standard is “high crimes and misdemeanors.” These may entail crimes which are insufficiently severe (e.g. leaving the scene of an accident) or single instances of misjudgment (e.g. lying under oath about sex). Such crimes may or may not be prosecuted after a candidate leaves office, and may or may not affect voters’ willingness to reelect the president.

Then there are crimes that are plainly impeachable, especially if they are part of an ongoing, pervasive pattern. In this category would be ongoing tax and bank fraud, conspiracy to defraud voters in an election and to violate campaign laws, obstruction of justice including witness-tampering and intimidation and other crimes that go to the heart of the judicial process which the president is sworn to defend.

The most interesting category is actions that aren’t crimes, but which are impeachable. Let’s take the allegation in Jane Mayer’s blockbuster New Yorker report that Trump allegedly ordered economic adviser Gary Cohn and chief of staff John Kelly to file suit to block the AT&T and Time Warner merger because of the president’s vendetta against CNN, a Time Warner entity. There is nothing illegal about filing a lawsuit, but — as with the Nixon White House ordering Internal Revenue Service audits of political enemies — using the power of the federal government for personal reasons is plainly an abuse of power. Cohn never carried out the order, the Justice Department filed suit in the normal course of business and the federal court upheld the merger.

“Of all the scandals that have enveloped the Trump administration, the one theme that keeps returning time and again is his attempt to politicize law enforcement,” says former Justice Department spokesman Matthew Miller. “This is just another example of how he sees DOJ as his personal enforcement agent, there to punish his enemies and reward his friends, and it is the grossest abuse of power possible.”

Constitutional scholar Larry Tribe agrees, telling me, “If Trump did order Cohn to take that action, it would’ve been a clear abuse of presidential power in violation of the First Amendment.”

This wouldn’t, of course, be the first time Trump used government powers to suppress critics. “This revelation further bolsters an already damning record that we’ve laid out in a federal lawsuit that the President has violated the First Amendment by trying to use the vast powers of the federal government to suppress speech he doesn’t like," says Ian Bassin, executive director of Protect Democracy. "Every American who cherishes our rights not only to speak freely, but to receive reporting and information not slanted by the pressure of government censors — and make no mistake, this is an attempt at censorship by other means — should be outraged at Trump’s utter disdain for our first founding freedom.”

It would be a mistake to brush off this particular Trump directive and other alleged orders (e.g. fire the special counsel, get a U.S. attorney to unrecuse himself from a Southern District of New York probe) because underlings didn’t carry them out.

Joshua Matz and Tribe write: “If Trump’s abusive orders to senior officials were actually implemented as policy, they would support multiple articles of impeachment. The widespread practice of ignoring his tweets, statements, and even direct commands — or treating them as merely advisory — has thus saved Trump from potentially dire political consequences.” However fortunate we have been, Trump’s orders nevertheless represent serious abuses of authority, especially when others’ constitutional rights are involved.

Likewise, it might not have been illegal for Trump to pursue a business deal in Moscow during the campaign, to lie to voters that he wasn’t pursuing a deal, and to use his position as a candidate to defend a hostile foreign power and increase his chances of landing a deal. But defrauding the voters to gain power — and aiding a foe of the country in the process — most certainly could be considered an impeachable offense. Indeed, the framers were concerned about those who gained power by illegitimate means.

Right now we don’t know what illegal acts, if any, Trump committed and which, if any, are impeachable. I suspect we are going to begin to find out, however. Republicans’ blanket defense of anything Trump says or does and their unwillingness to defend the Constitution should come with a price. In watching them defend corruption, obstruction and abuse of power, voters may come to view them as enablers of Trump and just as unworthy of reelection.

Read more:

Greg Sargent: Democrats are set to take a big step toward impeaching Trump

Jennifer Rubin: House Democratic chairmen need to keep pounding away on these points

Jennifer Rubin: The ongoing danger of impeachment fixation

Max Boot: Here are five felonies Trump committed — if Cohen is telling the truth

David Ignatius: Michael Cohen’s testimony reminds us that Trump’s investigations are far from over