California Forum

Impeachment hinges on whether president can seek campaign help from foreign nations

For all of the drama surrounding the impeachment inquiry, it really comes down to two questions: Did President Donald Trump encourage Ukraine and/or China to gather and provide damaging information regarding a political rival? If so, should this be regarded as an impeachable offense?

Of course, the House of Representatives might consider whether there have been other impeachable offenses, such as violations of the emoluments clauses or obstruction of justice with regard to Russian involvement in the 2016 presidential election. But everything else is just noise and should be brushed to the side.

An important example of such noise was an astounding memorandum by White House Counsel Pat Cipollone on Oct. 8. In it, Cipollone claims that the impeachment inquiry is “contrary to the Constitution … and all past bipartisan precedent” and violates “fundamental fairness and constitutionally mandated due process.”

He says that the House has “violated civil liberties and the separation of powers by threatening Executive Branch officials.” He says that if an impeachment inquiry were not under way, the House Oversight Committee would not be entitled to the information it is seeking. Cipollone objects that the House essentially “seek(s) to overturn the result of the 2016 election.” Therefore, he concludes that the “Administration cannot participate in your partisan and unconstitutional inquiry.”

Rarely have I read such legal nonsense. A law student who said these things in a paper would receive a very low grade. The law is clear that the White House counsel is not the president’s personal lawyer and Cipollone should be ashamed of taking on such a role.

Opinion

The Constitution gives the House sole power of impeachment. It says nothing about the procedures it should follow. Sometimes, there has been a House resolution authorizing an impeachment inquiry, but sometimes there has not been such a resolution before an impeachment inquiry. It certainly is not required by the Constitution.

Certainly, the president should be treated fairly in the proceedings and have the opportunity to be heard. But in no way has the House of Representatives denied this to Trump. What the president really wants is to know the identity of the whistleblower who revealed his conversation with the president of the Ukraine, Volodymyr Zelensky.

The president has called this person a spy and remarked that spies used to be executed. The law is clear in protecting the identity of whistleblowers precisely so that they will feel comfortable coming forward and revealing violations of the law. The president has no constitutional right to know this person’s identity.

The U.S. Supreme Court has been emphatic in upholding the broad investigative powers of Congress, including to subpoena documents and witnesses. Past presidents who have faced investigations and impeachment inquiries have cooperated. Never before has a president and a White House counsel instructed all those working in the executive branch to refuse to cooperate.

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Erwin Chemerinsky

But what makes this impeachment inquiry different from the one involving Richard Nixon is that presidential cooperation is not needed to determine what happened. The crucial question with regard to the Watergate cover-up was what Nixon knew and when did he know it. Through most of the impeachment inquiry, it was unknown what, if anything, Nixon did to hinder the investigation into the Watergate break-in. This was not learned until the release of the White House tapes in August of 1974, following the Supreme Court’s decision in United States v. Nixon, after the House Judiciary Committee had voted on articles of impeachment.

But in the current investigation, Trump has openly admitted that he asked the Ukrainian president for damaging information about former Vice President Joe Biden and his son, Hunter. A “transcript” released by the president has him saying in a discussion about aid to Ukraine, “I would like you to do us a favor though.” President Trump also publicly asked China for information on the Bidens.

Thus, there seems little doubt as to what occurred, and White House cooperation is not needed to figure that out. The only question is whether this should be regarded as a “high crime and misdemeanor.”

Federal law expressly states that it is illegal for “a person to solicit, accept, or receive” anything of value from a foreign national in connection with a United States election. Moreover, an abuse of power, even if not illegal, long has been regarded as what the framers meant by “high crime and misdemeanor.”

When all else is brushed aside, that is the only question that the House of Representatives and, ultimately, the Senate, will need to answer. Does the president commit an impeachable offense when he uses his office to ask foreign leaders to gather information on a political rival?

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be contacted at echemerinsky@law.berkeley.edu.
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