Published by The Lawfare Institute
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Robert Mueller produced yet another detailed masterwork last week, documenting the seriousness of the Russian attack on the electoral process in 2016. The president wasted no time in scorning his inquiry. Shortly after reaching foreign soil ahead of his meeting with Vladimir Putin, he referred to the Russia probe as a merely "political problem," no more than "pure stupidity." It was not a throwaway remark. President Trump took up the point yet again at the Helsinki press conference on Monday with an attack on the special counsel’s probe as “ridiculous” and “ a disaster for our country,” which he alleges to have had only a “negative impact” on U.S.-Russian relations. He was at first mostly silent as the Russian president denied again any interference; Trump managed only to report that Putin “feels very strongly” in registering this denial.” But then, in a later exchange, President Trump aligned himself with Vladimir Putin’s rejection of the American intelligence community findings:
They said they think it’s Russia; I have President Putin, he just said it’s not Russia. I will say this: I don’t see any reason why it would be [Russia]. I have great confidence in my intelligence people, but I will tell you that President Putin was extremely strong and powerful in his denial today.
It was apparent even before Trump left the country last week that he would ignore any investigative findings about the Russian intelligence operations. According to the Washington Post, the president had the benefit of a full briefing on the indictment from Deputy Attorney General Rod Rosenstein but was unimpressed. In fact, as Trump began his trip overseas, he he renewed his attack attack on Mueller and offered “kind words” for Putin. When asked later whether he would push to extradite the 12 Russian intelligence officials named in the indictment, Trump said he “might” but that he “hadn’t thought of that.” At the Helsinki press conference, in response to a direct question from a reporter, he declined to press for—much less even raise the question of—extradition.
This president has left no doubt that his response to these Russian intelligence operations will not change. He tweeted last July:
I strongly pressed President Putin twice about Russian meddling in our election. He vehemently denied it. I've already given my opinion.....— Donald J. Trump (@realDonaldTrump) July 9, 2017
Almost exactly a year later, he returned to the subject:
Russia continues to say they had nothing to do with Meddling in our Election! Where is the DNC Server, and why didn’t Shady James Comey and the now disgraced FBI agents take and closely examine it? Why isn’t Hillary/Russia being looked at? So many questions, so much corruption!— Donald J. Trump (@realDonaldTrump) June 28, 2018
On Thursday, he restated his view that there is only so much he could achieve with Putin on this subject: “He may deny it. It’s one of those things. All I can say is, ‘Did you,’ and ‘Don’t do it again.’ All I can do is say it.” At an internationally televised press conference Monday, Trump stayed on this astonishing course.
Public discussion of possible impeachment charges against Trump has focused so far on issues of obstruction of justice or evidence of his and/or his campaign’s collusion with the Russians in their bid to influence the 2016 presidential election. It is time to add to that list his refusal to acknowledge openly and respond appropriately to the Russian threat. The Mueller indictment released Friday establishes beyond question the scope and seriousness of the threat from Russia, and Trump’s response confirms that he will persist in actively resisting these findings. In effect, he will stand with the Russian president against the U.S. law enforcement, defense and intelligence communities, and also without regard to the Senate intelligence committee’s bipartisan conclusion about the fact and extent of Russian electoral intervention.
The Unprecedented Nature of Trump’s Defense of Putin
Assessment of the president’s conduct begins with this proposition: He is breaking wholly new ground as a chief executive and commander-in-chief by running interference for a foreign power launching attacks on American electoral institutions. Trump is misleading the American people about the very fact of Russia’s actions and, according to intelligence officials, Russia’s plans to press these attacks in the future. He has declined to vigorously lead in defending against these assaults: He is virtually flaunting his unwillingness to do so. He has been consistent in this behavior over the course of his presidency—even now, when the director of national intelligence has spoken publicly of “warning lights [that] are blinking red” over attacks on the nation’s digital infrastructure.
The reasons for Trump’s behavior remain unclear. It may be that the wholly inexperienced president perceives foreign affairs through the lens of decades of ruthless, slash-and-burn battles in the world of commercial real estate development and branding. He insists that Putin is a “competitor,” not an adversary. In Helsinki, he took the further step of describing the Russian president as a “good competitor.” He meant that, he said, as a “compliment.”
Trump reportedly prides himself on his “strength” and savvy—which often means getting away with strong-arm tactics—so it is not surprising that he would admire the similarly “strong” Putin as a “competitor.” Because Trump has so much confidence in his own instincts and guile, he may believe that he can reconcile his obligations to his oath of office with a mutually beneficial relationship between two “strong men” meeting across the negotiating table. They understand each other; they can cut deals that work for them both. Perhaps this “just business like any other” mentality explains how Trump could say, on the eve of his Helsinki meeting with Putin, that “I’ve been preparing for this stuff my whole life.”
Trump may believe that to pressure or condemn Putin for the cyberattacks on the electoral process would disrupt the flow of this personal understanding that he thinks he has reached and can maintain with his Russian counterpart. He cannot signal a personal disaffection with Putin and risk an arrangement he evidently holds dear.
Of course, there is also the possibility that Trump has something to hide, or that Putin has some hold on him, or both. Perhaps, as he contemplates the midterms and even his own reelection campaign in 2020, he may be satisfied to have the Russians persist in this course of conduct to his advantage and his party’s. (Nothing he has said publicly would give the Russians any reason to doubt he may be pleased with their efforts.) Or perhaps Trump’s pride is wounded by these allegations because he fears that the Russia investigation will fuel claims that he did not legitimately win the 2016 election. None of these explanations is at odds with the “personal” bond he wishes to maintain with Putin or the reasons for his faith in their political kinship.
It is no answer to these concerns to say that while the president schemes and fumes, the rest of the government goes on with its job. It is no minor matter that a president actively undermines the work of those officials charged day to day with the defense of the country. We are not speaking here of a contested policy issue but a threat from a foreign adversary about which there is consensus among defense and security experts in both Congress and the executive branch. Who is to say—and when would we know for sure—that Trump’s refusal to acknowledge the dimensions of this threat would not have consequences for the shape or implementation of critical countermeasures? It is highly unlikely that his foreign policy and national security team thought Trump should meet one on one with Putin in Helsinki, with neither aides nor note-takers present. But he did it, for more than two hours, and we are left to trust in the word of these heads of state about what they discussed and what they agreed or did not agree to.
The Impeachment Question
Bringing Trump’s behavior in relation to Russia into the discussion of impeachment is neither “piling on” nor a concession that other grounds, such as obstruction or aiding and abetting Russian electoral interference, lack merit. Over the course of almost two years, much has been learned about the Russian cyberattack on American democracy as well as about this president’s position on this critical national security issue: He will minimize the threat, refrain from the full use of his constitutional and legal authority to defend against it, and will not marshal public opinion and bipartisan support behind a vigorous program of countermeasures. Impeachment would be appropriately considered and debated as a remedy for this extraordinarily irresponsible, reckless and dangerous behavior.
In his just-published case against the impeachment of Donald Trump, Alan Dershowitz does not directly address the question of Trump’s affinity for Putin and its effects on foreign policy. He argues, however, that as a matter of constitutional law a president cannot be impeached unless the conduct before Congress is a crime, not merely cause to question his or her fitness for office. Dershowitz would distinguish between an impeachable offense, based on criminal conduct, and what he calls a “political sin.”
For this reason, Dershowitz attacks the suggestion that Congress cannot oust a president from office for eliciting support from a foreign power for his political campaign in return for policy concessions. He offers the “extreme” hypothetical of this president having proposed to Putin a specific deal: “You should help me get elected by giving me dirt on Hillary Clinton because, if I’m elected, there’s a better chance to get rid of the sanctions, which I disapprove of.” Dershowitz sees no crime here, hence the absence of the predicate for impeachment. After all, he writes, “Politicians often seek contributions and support from individuals who expect to benefit from the election of their candidate.” He insists that campaign finance laws barring foreign national political expenditures are “vague and subject to constitutional scrutiny, especially in the context of information rather than cash,” and that their application to this hypothetical would be a “stretch.”
Dershowitz’s argument is wrong in key particulars, most notably in his understanding of federal campaign finance law. But the larger problem with the argument is its central thesis: that even “extreme” conduct by a president, if it does not violate the law, cannot support impeachment. He takes his case to the limits, citing another extreme hypothetical of a president who, accepting a Russian “original” claim to Alaska, acquiesces in its seizure of the state. Impeachable? No, says Dershowitz, though he accepts that others might disagree.
One does not, of course, have to believe that Congress can impeach for any reason to doubt that an impeachment must be built on an actionable crime. An “abuse or violation of public trust,” cited by Hamilton in Federalist 65 as grounds for impeachment, may well evade clear-cut legal prohibitions yet constitute just the sort of “extreme” dereliction of duty that is remedied only through extraordinary constitutional process rather than awaiting potential resolution in the course of the regular cycle of elections. A president cutting a deal with Russia for his election, or standing with Russia in the occupation of Alaska, would clearly fall into this category. Alan Dershowitz does not think so.
In his “Handbook” on impeachment, Charles Black gave his own “extreme” examples of impeachable conduct, rooted in “gross and wanton neglect of duty,” such as this one:
Suppose a president were to announce and follow a policy of granting full pardons, in advance of indictment or trial, to all federal agents or police who killed anybody in line of duty, in the District of Columbia, whatever the circumstances and however unnecessary the killing.
Black then asks: “Could anybody doubt that such conduct would be impeachable?”
So it is instructive to put the recent Trump conduct into a Black-like hypothetical, one that meets Dershowitz’s specification of an unimpeachable but still “sinful” political act.
Suppose a president refuses to accept extensive evidence, validated by executive-branch and congressional investigations, that a foreign power has engaged in aggressive subversion of the American electoral process. The actions include hacking into the files of political party organizations and attempts to penetrate the voter registration records maintained by state boards of elections. The intelligence community and Congress each report their conclusions that these attacks will continue.
The president aggressively questions these findings in communications with the American public, and he signals to the leader of the hostile foreign state that he will not join in the condemnation of these aggressive cyberattacks.
The president also fires the official in charge of the investigation into the Russian interventions and reassures representatives of this foreign state in person, in the Oval Office, that he thereby removed a source of “great pressure” on the relationship he wants with that nation. He then launches a series of virulent public attacks on the special counsel who is subsequently appointed to investigate the full extent of this electoral intervention and any collusion that may have taken place with U.S. citizens or organizations.
The president reports that in their direct discussions, the foreign leader denied the well-documented intervention. He then meets with the leader of a foreign power at an internationally televised summit and raises no objection or question when his counterpart repeats the denial. Instead, stressing that the foreign leader “feels strongly” about the falseness of the accusations, he suggests that he sees no reason to accept the findings of American intelligence officials rather than the foreign leader’s denials. The president then reiterates that the inquiry into the electoral interventions is “ridiculous” and a “disaster for the country.” On the eve of this meeting, he had delivered this same message to the American public in a tweet.
The argument that a president is not subject to impeachment for this pattern of conduct is hard to fathom. The behavior cannot easily be broken down into discrete “crimes,” but it is well within range of the serious, indeed dangerous, “abuse or violation” of public trust that justifies a discussion of impeachment. It is remarkable how “extreme” it seems in the hypothetical form; but as extreme as it may seem, it is not hypothetical.
Is this the kind of “maladministration” that the Founders consciously removed from the category of impeachable offenses—that is, a question of bad policy or incompetence in executing it? Assume one gives the president the benefit of the doubt and accepts that his behavior on the Russia issue is not just pique at any suggestion that his electoral victory was tainted. Perhaps he imagines that he is making better “policy.” He might even have believed that it was in the interests of an adjustment in “policy” toward Russia that he should win the election and encourage and accept Putin’s assistance toward that end. He might also have believed that firing James Comey would justifiably subordinate law enforcement interests—especially ones he so intensely discounts— to his judgment of the larger policy imperatives. And to make all this work, he might think he can lie to the public about the Russian behavior, to limit public pressure on him to take more vigorous actions to counter Kremlin electoral interference.
But not just any reason satisfactory to a president represents a legitimate “policy” judgment to which he can appeal in defending against the constitutional impeachment process. Presidents can take to extremes their personal judgments and preferences—their choice of ends and their selection of the means to those ends—and they may do so with great confidence in their instincts and in the tactics and strategies that brought them fame and fortune when they were private citizens. This cannot be passed off as policymaking.
And when presidents engage in such behavior, they may or may not commit crimes but they face the question of whether they are losing their claim on the office. It is a question that requires being asked with some urgency after Helsinki, as we see—to the degree that it is possible—what more comes out of the one-on-one meeting between the friendly “competitors.”