Those of us of a certain age can’t help but read that headline in a Jerry Seinfeld voice. Well, given the recent $500 million deal to air Seinfeld reruns on Netflix, maybe all generations would read the headline that way? Understanding the impeachment process in important, but it is also important to understand how Congress arrived at this decision and where the process goes from here.
Recent Articles on Trump, the Whistleblower, and Impeachment
If you have the time, below are links to several articles from the past week that, when taken together, explain much of what has been transpiring with the president and his problems. Warning, some of these articles are 5,000 words or more. This article presents two options: keep reading (and click through the links to past articles on the subject) or skip down to the next section for the “Cliff’s Notes Version of the Scandal.”
A good place to start the review would be an article published a week ago today, just as news of the whistle-blower complaint was breaking. This article discussed impeachable offenses, the history of impeachments, and debunks all the arguments being made at the time that impeachment should not be the course of action Congress takes.
As the media began digging for (and demanding) more information about the whistle-blower’s complaint, Donald Trump began lashing out in interviews (and especially, on Twitter) seeking to discredit the whistle-blower and to preemptively offer a defense despite the full nature of the accusations not yet being public. An article published that day documentation the attacks provides some of the first nuggets of information to leak out and provides insight into how Trump planned to defend himself.
A follow-up article from earlier this week dug more into the specifics of the whistle-blower complaint, the promise (and pitfalls) of the special prosecutor and whistle-blower statutes (and how they have changed in the past 25 years) as well as discussed Trump’s public defense strategy in significant detail.
So, what is the impeachment process? In simplest terms, the process proceeds much like a grand jury inquiry would in a criminal case, only instead of a District Attorney or similar representative of the justice system pursuing the case, Congress does so. The result, similar to an indictment in a criminal case, would be a list of charges (Articles of Impeachment) listing unlawful actions and violations of the Constitution for which the House of Representatives believes the accused (in this case, President Trump) should be removed from office. The Senate would then hold a trial with each count being rendered a verdict. Conviction on a charge results in removal, from office.
There are several key things to remember.
While several federal judges have been impeached and removed from the bench for criminal acts (outside of their official duties), no sitting president or Supreme Court Justice has been removed although one Justice was impeached (Samuel Chase) and two presidents (Andrew Johnson and Bill Clinton). Richard Nixon would seemingly have been the third president to be impeached (and likely the first removed from office), but he resigned during the House investigation.
Any of my male readers ever have an argument with the wife or significant other? How does that process go, guys? Are you only in trouble for what you did wrong that day, or does she start calling you out for every bad thing you ever did no matter how insignificant? Ever see Rain Man, the old Dustin Hoffman / Tom Cruise film? Autistic Charlie (Hoffman) keeps a list of every injury and grievance accumulated over the course of his life. “When his brother Raymond (Cruise) finds the list, as Charlie is making a new entry, he is incredulous at the detail.
CHARLIE: What is this? What are you writing? What the fuck is this? “Serious—Serious injury list: Charlie Babbitt”? “Serious injury list’? Are you fuckin’ kidding me?
RAYMOND: Number 18 in 1988. Squeezed and pulled and hurt my neck in 1988.
CHARLIE: Squeezed and pulled and hurt your neck in 1988?
Now you know what Trump is facing. How many offenses (potentially, impeachable offenses) have occurred since Donald Trump took the oath of office on January 20, 2017? But until now, it was a case of quantity over quality. Trump did terrible things. He may have committed crimes. But whether he is liked or hated, the bar for removing a president from office is deliberately set so high to prevent Congress (especially, a Congress controlled by the opposition party) from seeking impeachment every time there is even a hint the president may have committed an offense. But now that the process has begun, ALL the offenses are fair game.
For example, President Bill Clinton faced two articles of impeachment, but those articles contained a combined 11 charges:
Article I charged that Clinton lied to the grand jury concerning:
- the nature and details of his relationship with Lewinsky
- prior false statements he made in the Jones deposition
- prior false statements he allowed his lawyer to make characterizing Lewinsky’s affidavit
- his attempts to tamper with witnesses
Article III charged Clinton with attempting to obstruct justice in the Jones case by:
- encouraging Lewinsky to file a false affidavit
- encouraging Lewinsky to give false testimony if and when she was called to testify
- concealing gifts he had given to Lewinsky that had been subpoenaed
- attempting to secure a job for Lewinsky to influence her testimony
- permitting his lawyer to make false statements characterizing Lewinsky’s affidavit
- attempting to tamper with the possible testimony of his secretary Betty Curie
- making false and misleading statements to potential grand jury witnesses
More than a century earlier, President Andrew Johnson also faced 11 charges, though each was an individual article:
- Dismissing Edwin Stanton from office after the Senate had voted not to concur with his dismissal and had ordered him reinstated.
- Appointing Thomas Secretary of War ad interim despite the lack of vacancy in the office, since the dismissal of Stanton had been invalid.
- Appointing Thomas without the required advice and consent of the Senate.
- Conspiring, with Thomas and “other persons to the House of Representatives unknown”, to unlawfully prevent Stanton from continuing in office.
- Conspiring to unlawfully curtail faithful execution of the Tenure of Office Act.
- Conspiring to “seize, take, and possess the property of the United States in the Department of War”.
- Conspiring to “seize, take, and possess the property of the United States in the Department of War” with specific intent to violate the Tenure of Office Act.
- Issuing to Thomas the authority of the office of Secretary of War with unlawful intent to “control the disbursements of the moneys appropriated for the military service and for the Department of War”.
- Issuing to Major General William H. Emory orders with unlawful intent to violate federal law requiring all military orders to be issued through the General of the Army.
- Making three speeches with intent to “attempt to bring into disgrace, ridicule, hatred, contempt and reproach, the Congress of the United States”.
- Bringing disgrace and ridicule to the presidency by his aforementioned words and actions.
I must to admit, my favorite aspect of the Johnson impeachment is Article 10. Congress does a pretty good job every day of bringing those things on themselves these days. But imaging how brief Trump’s presidency would have been if criticizing Congress were still an impeachable offense? It remains to be seen how the current House will proceed with Trump. He could face just a few Articles, like Clinton, with multiple examples of instances where he committed that offense. Or Congress could pick the strongest example of each offense and proceed with potentially dozens of individual accusations. In the end, the Senate will try President Trump on each Article of Impeachment. Chief Justice John Roberts will preside over the proceedings. A 2/3 vote of the Senate is required for conviction on any count.
So how did we get here, to the point of impeachment?
Cliff’s Notes Version of the Scandal
A few weeks ago, a whistle-blower submitted a complaint to the Inspector General of the Intelligence Community (IGIC), Michael K. Atkinson. Atkinson was appointed by Trump but is widely respected as someone who performs his duties as would a Supreme Court Justice, with the law (and not politics) as the deciding factor. For example, one of Atkinson’s former Justice Department colleagues had this to say when informed Atkinson had notified Congress that the threat the whistle-blower had reported was “credible” and “urgent.”
“As soon as I saw that it was Atkinson, I thought, ‘Oh shit, this is real. He’s not a political guy. He’s a classic career prosecutor who’s only going to call balls and strikes.”
The issue is, Atkinson was informing Congress there had been a complaint, but was not providing Congress with that complaint.
Here’s the thing. When someone at say, the Department of Housing and Urban Development makes a whistle-blower claim, it goes directly to the relevant Congressional Committee which has oversight of that department. But when the complaint relates to any of the intelligence branches (CIA, FBI, NSA, etc.), the claim first goes to the IGIC. If he deems it “credible” and “urgent” it goes to the Director of National Intelligence (currently, Joseph Maguire, a former Navy Admiral and recent Trump appointee). It is important to note that Maguire is in the role (as acting Director) because the previous DNI (Dan Coats) and his top Deputy (Susan Gordon) quit around the same time the whistle-blower complaint was filed. Maguire turned to the Department of Justice (unclear who, but likely Attorney General William Barr) for clarification on how to proceed with the complaint against the president as he was now legally obligated to present the complaint to Congress. The Justice Department and the Counsel for the Office of the Director of National Intelligence subsequently decided there was no obligation for the DNI to hand over the complaint to Congress as the president falls outside the intelligence community and therefore the IGIC lacked the standing to rule on the validity and urgency of the complaint. The Justice Department (certainly Barr) subsequently decided they had the authority to review the complaint and determined the accusations did not rise to the level of “criminal conduct.”
The complaint pertains to (among other things, allegedly, as the complaint has not been made public) a July 25th conversation between President Trump and Ukrainian President Volodymyr Zelensky, During the call, Trump urged Zelensky to investigate corruption in the Ukraine, specifically whether Joe Biden (when he was Vice President) intervened to stop a probe by the Ukrainian Attorney General into the actions of Biden’s son Hunter who was on the board or Ukrainian natural gas company Burisma Holdings since his hedge fund had heavily invested in the utility. These accusations date back to 2015 and have been thoroughly debunked by left-leaning news outlets like the NY Times and right-leaning news outlets like the Wall Street Journal. The readout of the call, though not an official “transcript” can be read here.
From what has been reported, the phone call was the “last straw” for the whistle-blower and not the first thing that raised alarms.
Just days before the phone call, Trump blocked $400 million in military aid to Ukraine. He claims there was no quid pro quo involved. That is a legal term which, based on recent Supreme Court rulings (like the one in the case of former Virginia Governor Bob McDonnell), holds that there must be a tit-for-tat in bribery or corruption cases. In other words, we call all assume that Trump pulling military aid and then demanding just days later that the Ukrainian president investigate Joe Biden are related, but can it be proved? Trump eventually released the money as it was a Congressional budget allocation and not something the president can contravene once Congress approves and the president signs the budget.
But Ukraine was where former Trump campaign chair Paul Manafort worked managing Ukrainian elections. Remember, Manafort is now in prison. The Nation has an outstanding story published this week detailing the baseless allegations against Biden, Manfort’s criminal conduct, and most importantly, how the Ukraine (maybe even more than Russia) meddled in the 2016 United States presidential election. If the allegations against Trump are true, he as exerting pressure on and withholding money from a foreign country in exchange for dirt on someone likely to be Trump’s challenger in 2020. Basically, the accusation is that everything Trump is alleged to have done in 2016 is being repeated in 2020.
Rudy Giuliani (who Trump mentions several times in the phone call) traveled to Ukraine, had another visit planned that he cancelled, and met with Ukrainian agents at a neutral site. It is concerning (and damaging to Trump) that Rudy Giuliani was the point person for contact and the relaying of any information collected on Biden. Rudy is Trump’s personal attorney and in no way represents the government of the Unites States or the administration of Donald Trump in his official capacity. Trump himself was supposed to go to Ukraine as well but sent Mike Pence instead. That really complicates things as now they might both be complicit, and it could result in another case like Nixon and Agnew where both the President and Vice President resigned, and Gerald Ford became president.
The Washington Post recently published a scathing story on Rudy Giuliani and his involvement in Ukraine. It appears there has been a battle since April between the Trump loyalists and members of the administration and national security and intelligence officials. The officials felt Giuliani (a private citizen) had undo involvement in the country’s international affairs, was spreading wild conspiracy theories (like the debunked Biden claims) and was largely responsible for both getting the Ukrainian ambassador to the United States fired and undermining the U.S. ambassador to Ukraine. But Rudy say President Zelensky as potentially a hugely valuable Trump ally who could provide dirt on Biden. National security officials did not want the Trump/Zelensky call to happen as they feared Trump or someone close to him might take action to use “leverage” against Zelensky for Trump’s personal political gain. It seems that may have been exactly what happened. Giuliani has been quite clear on the matter, “I don’t do anything that involves my client without speaking with my client.” His client is Trump. If Rudy did all the things alleged, he is saying publicly that he did them on Trump’s orders.
So that’s it in a nutshell. It was alleged as far back as 2015 that Trump and his campaign were benefiting from Ukrainian (and Russian) intervention. Beginning in April of 2019 (soon after Biden announced his run), Rudy Giuliani and other members of the Trump team (or campaign) began pushing baseless and debunked allegations against Biden and seeking (possibly, by blackmailing or extorting) assistance from Ukraine again for the 2020 election. Once that plan seemed to become reality with the July 25th phone call, someone ratted Trump and Giuliani out, setting off a jurisdictional fight among the intelligence agencies, DNI, IGIC, DOJ, the White House, and Congress. That fight is still raging, but House Democrats have decided that they do not need to wait for the whole meal to be served to know there is enough meat on the bone to get the impeachment process rolling.
Will the full whistle-blower complaint be released to Congress? To the public?
Will the audio of the phone call be released, or just the readout presented today?
Was there enough (and provable) quid pro quo?
Will the opening of the investigation lead to other Trump misdeeds? For example, it is widely believed Trump released the readout of the call to ease some of the pressure he was feeling. But if later the audio is released and it contains incriminating statements deliberately omitted from the readout? THAT is exactly what brought Nixon down and forced his resignation.
It is alleged Trump called Pelosi after she announce the impeachment inquiry. He said he wanted to “figure this out” and asked,”Hey, can we do something about this whistle-blower complaint, can we work something out?” Pelosi replied, “Tell your people to obey the law.”
It might be a little too late for that!