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Abuse Of Power Isn’t A Crime — But It Can Be An Impeachable Offense

“Was that wrong?” George Costanza asks in a 1991 episode of “Seinfeld” after his boss confronts him with a report that “you and the cleaning woman have engaged in sexual intercourse on the desk in your office.” George says he has to “plead ignorance,” because no one “said anything to me at all when I first started here” suggesting “that sort of thing was frowned upon.”

Donald Trump’s legal team is trying out a version of the Costanza defense, arguing that the articles of impeachment against him are constitutionally deficient because they do not allege any violations of the law. That claim is so dubious that even Trump’s lawyers don’t believe it.

The president is accused of abusing his power for personal gain by pressuring the Ukrainian government to announce an investigation of a political rival. The scheme allegedly included temporarily blocking $391 million in congressionally approved military aid.

The Government Accountability Office recently concluded that Trump’s hold on that money violated the Impoundment Control Act. But the articles of impeachment do not mention that law or any other statute that Trump is accused of violating.

Is that a fatal flaw, as Trump lawyer Jay Sekulow and White House Counsel Pat Cipollone insist? Not according to George Washington University law professor Jonathan Turley, the sole Republican witness at the House Judiciary Committee’s Dec. 4 impeachment hearing.

Turley, who harshly criticized the impeachment process as rushed and incomplete, warned that abuse of power allegations can be dangerously amorphous when detached from the elements required to prove a crime. He nevertheless conceded that “the use of military aid for a quid pro quo to investigate one’s political opponent, if proven, can be an impeachable offense.”

Turley emphasized that “high crimes and misdemeanors” are not limited to statutory violations. The phrase “treason, bribery, or other high crimes and misdemeanors,” he observed, “reflects an obvious intent to convey that the impeachable acts other than bribery and treason were meant to reach a similar level of gravity and seriousness (even if they are not technically criminal acts).”

Turley noted that James Madison, although he opposed including “maladministration” as grounds for impeachment, said the process was meant to address “the incapacity, negligence or perfidy of the chief Magistrate.” Alexander Hamilton likewise said impeachment was aimed at “those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”

Harvard law professor Alan Dershowitz, a member of Trump’s legal team, now takes what he concedes is the minority position, arguing that an impeachable offense has to be a crime. But he was singing a different tune during Bill Clinton’s impeachment in 1998.

“It certainly doesn’t have to be a crime,” Dershowitz said on CNN. “If you have somebody who completely corrupts the office of president, and who abuses trust, and who poses great danger to our liberty, you don’t need a technical crime.”

Another Trump lawyer, Rudy Giuliani, claims the articles of impeachment are unconstitutional because “abuse of power and obstruction of Congress are not crimes of any kind.” But during a 2018 discussion of Independent Counsel Robert Mueller’s investigation, Giuliani declared that a preemptive presidential self-pardon, while legal, “would just be unthinkable” and “would lead to probably an immediate impeachment.”

In other words, a self-pardon would not be a crime, but it would still be an impeachable offense. Similarly, a president who used his authority over the Justice Department to quash investigations of his friends and launch investigations of his enemies would be violating the public trust in a way that could justify impeachment, even if everything he did was technically legal.

Without a statutory basis, Sekulow and Cipollone argue, abuse-of-power charges effectively allow legislators to impeach the president because of policy disputes or partisan animus. But there is also a danger in letting a president off the hook because no one ever explicitly said his particular brand of misconduct was frowned upon.

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @JacobSullum. To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate webpage at www.creators.com.

Democrats Ask Whether Trump Attorneys Obstructed Russia Probe

Reprinted with permission from Alternet.

House Democrats are pursuing information about President Donald Trump’s lawyers and whether they might have helped in the effort to obstruct the Russia investigation, the New York Times revealed on Tuesday.

There’s ample evidence to justify such an inquiry. Special Counsel Robert Mueller’s report lays out numerous instances in which Trump appears to have been attempting to influence the testimony of witnesses, in particular, Paul Manafort and Michael Cohen. It’s likely that there is also discussion of Trump’s efforts to influence Roger Stone, but the relevant part of the report is redacted.

Many of these instances, though, do not involve Trump directly, but lawyers working on his behalf. For example, Mueller cites Rudy Giuliani’s open discussion of a potential pardon for Paul Manafort, which appears to be part of an effort to keep the former Trump campaign chair quiet. And indeed, such an effort seems to have worked — while Manafort agreed to cooperate with investigators, Mueller later concluded that he had lied to them.

Though Giuliani is the only one of Trump’s lawyers to be named in the report, there are other indications that his attorneys were sending signals to witnesses that they could be taken care of and that they need to simply follow the party line. Cohen, who has pleaded guilty to lying to Congress, said that the false testimony he gave to lawmakers was reviewed and edited by Trump’s lawyers ahead of the hearings.

So it’s not too surprising that Rep. Adam Schiff, the chair of the House Intelligence Committee, would want to pursue this avenue, as the Times reported. But it’s likely that he won’t get very far.

The Times reported that Trump’s attorneys have balked at the requests for information, saying that it would violate attorney-client confidentiality. And as bad as some of the evidence looks for people like Giuliani, they’re probably right.

That’s why Mueller didn’t go down this path; the report shows no indication that he considered charging Trump’s lawyers with obstruction. And he says explicitly that the special counsel did not pursue all “witnesses and information — such as information known to attorneys or individuals claiming to be members of the media — in light of internal Department of Justice policies.”

“There are real questions about whether Trump directed attorneys to engage in behavior w/ respect to Cohen & others that could be basis for additional obstruction charges,” noted Lawfare executive editor Susan Hennessey. “Nearly impossible to answer without violating attorney-client privilege which is why Mueller didn’t even try.”

There is an exception in attorney-client privilege, if “legal advice has been obtained in furtherance of an illegal or fraudulent activity,” which can allow investigators to obtain evidence of these private communications. But this is a difficult showing to make, and the witnesses and lawyers involved in the Mueller investigation were covered by joint-defense agreements, which extends privileged conversations to other parties. So unlike many of the people who have received requests and subpoenas Congress has sent while investigating Trump, the subjects of this inquiry have a strong legal defense on their side.