Politicians and mainstream media have gotten bogged down in an argument over whether President Trump has ushered in a “constitutional crisis.” It could be a crisis, or maybe just a confrontation; well it could just be threatened crisis. What we call it is beside the point. Democrats would do well to lay out the major threats to our constitutional order, the sorts of things that would be, if proven, the basis for articles of impeachment. What has Trump done, and what does Congress need to prove it?
What did Trump allegedly do? Trump’s campaign, in the words of the Mueller report, "expected it would benefit” from Russian help and invited interference (e.g., Trump calling for release of hacked Hillary Clinton emails; campaign officials repeatedly seeking “dirt” on Clinton from Russians; and Trump hammering away at the disclosures from WikiLeaks, a Russian cutout, in the waning days of the campaign). Trump continued falsely to deny business dealings with Russia during the campaign (thereby giving the Kremlin leverage over him). After the election, Trump has acted in ways that served only to encourage Russia to engage in more interference (e.g., siding with Russian President Vladimir Putin over our intelligence community at Helsinki; calling Putin after the Mueller report’s release to tell him it was all a hoax; refusing to take election security seriously).
Crime? There may not be evidence of a criminal conspiracy with Russians, but Trump unfairly sought and obtained foreign assistance in the election (i.e., he cheated), and then left the United States open to further attacks on our democracy. In doing so, he violated his oath of office.
What does Congress need? It must hear from special counsel Robert S. Mueller III; get the full unredacted counterintelligence portion of the Mueller report and the section regarding possible conspiracy with WikiLeaks; and hear from intelligence community officials who can attest to the level of confidence in Russian interference and Trump’s inexplicable refusal to acknowledge that it occurred. Congress will also want to hear from former chief of staff John F. Kelly, former national security adviser H.R. McMaster, former secretary of state Rex Tillerson, former defense secretary Jim Mattis and former Homeland Security secretary Kirstjen Nielsen about Trump’s refusal to undertake steps needed to secure our democracy and how public statements would provoke more attempts to violate our electoral sovereignty.
What did Trump allegedly do? The president has refused to divest himself of business interests, and has used his office to enrich himself (e.g., raising his club membership fee; requiring government officials to stay at and spend money at his properties; continuing to operate the Old Post Office location as a hotel; interfering with the decision to relocate the FBI building to benefit his hotel; receiving foreign emoluments; allowing his family to receive foreign emoluments; and permitting aides repeatedly to violate the Hatch Act — using government property and work time to promote his candidacy.)
Crime? If there was a quid pro quo involved in any of these actions, bribery statutes would come into play. If he violated tax laws while in office he may also have criminal liability. However, in misusing public office for private gain, he violated his fundamental obligation to “take care” the laws are executed and ensure his actions serve to benefit the country.
What does Congress need? All his financial records, his tax returns, testimony of Trump Organization business associates and financial experts to explain the amounts of money Trump has improperly made while serving as president.
Obstruction of Justice
What did Trump allegedly do? Volume II of the Mueller report lays out 10 categories of conduct in which Trump obstructed the Mueller investigation — ranging from attempting to fire Mueller, to attempting to goad former attorney general Jeff Sessions into curtailing the investigation, to influencing witnesses’ testimony.
Crime? More than 800 prosecutors have signed a letter stating that, but for the Office of Legal Counsel, Trump would have been indicted.
What does Congress need? Testimony from Mueller, former Trump campaign manager Corey Lewandowski, former White House counsel Donald McGahn, former White House communications director Hope Hicks, former White House chief of staff Reince Priebus, and other senior advisers and Trump lawyers (who must testify under the fraud-crime exception to the attorney-client privilege), as well as the full, unredacted Mueller report.
Obstruction of Congress
What did Trump allegedly do? House Judiciary Committee Chairman Rep. Jerrold Nadler (D-N.Y.), during an interview with CNBC’s John Harwood, explained, “No questions are being answered about any subject. And then, when subpoenas are being issued, there’s a blanket command, disobey all subpoenas. Nobody should testify, and nobody should give documents to Congress.” He continued, “Well, that’s a way of neutering Congress, of making sure that Congress can’t do its job, of turning the country into a dictatorship of a monarchical president. You can’t function if you don’t have information.” The congressman has continually raised bogus and ludicrous arguments for executive privilege.
Crime? To the extent he sought to smear and intimidate witnesses (e.g., Michael Cohen, McGahn), criminal statutes may have been violated.
What does Congress need? We have to see how Trump reacts to possible court orders striking down the president’s assertions of executive privilege and efforts to block document production. Congress would need a full accounting of all the requests from committees to Trump during this time, the responses to all of these and the relevant court documents.
It should be patently obvious that there may be grounds for impeachment. However, it is also clear that Congress, in no shape or form, has the evidence it needs to reach a decision on impeachment. Like the Watergate hearings that went on for about a year before impeachment hearings began, it must obtain that evidence and educate the public. Rather than say impeachment is not on the table, Democrats would be wise to lay this all out and tell voters: We need to uncover all evidence concerning these actions to determine whether Trump broke the law or committed impeachable acts. Democrats would be wise to stop debating what to call it and, instead, repeat again and again the four categories of conduct that may justify his removal and the need to gather evidence for each.