The Case for Impeaching Donald J. Trump
On January 3, 2017, I once again swore to protect and defend the Constitution. Our Constitution calls for the impeachment of a President who has committed High Crimes and Misdemeanors.
Obstruction of Justice is a felony under the United States Criminal Code. See § 1512 (b)(3) of the U.S. Criminal Code. It applies when anyone uses threats to hinder a federal criminal investigation. While this section is commonly applied to witness intimidation, the Courts have consistently ruled that it is also applicable when one threatens an FBI agent or other law enforcement official.
On June 8, I heard every word of FBI Director James Comey’s testimony before the Senate Intelligence Committee given under oath and penalty of perjury. Comey is a credible witness, well-respected in the law enforcement community nationwide, and he testified on the basis of contemporaneous notes. Director Comey is not a Berniecrat hostile to the Trump Agenda; he served in the Trump Administration and wished to continue to do so.
Comey testified that in February the President threatened him in order to get him to curtail the investigation of former National Security Advisor Michael Flynn. Threatening an FBI director in order to curtail an ongoing FBI investigation constitutes a felony under § 1512.
In May, President Trump fired Director Comey and indicated that his purpose was to thwart the Russian collusion investigation. A president is free to fire an FBI director if he feels that it is in the national interest, but firing the FBI director for the purpose of thwarting an ongoing FBI investigation involving the President himself, constitutes a second violation of § 1512. As to this second felony, there are no evidentiary questions, as the critical evidence is the President’s own voice on videotape in an interview by Lester Holt.
In July, President Trump made comments to The New York Times, on the record and on audio tape, that were interpreted by many as threatening Special Counsel Robert Mueller for the purpose of preventing him from looking at Trump’s financial dealings. This may well be a third violation of § 1512.
In each case, the President’s efforts to obstruct justice were ill-advised and ineffectual. But the court cases are clear -- one can be convicted of Obstruction of Justice even for an inept and unsuccessful attempt. Or in this case, perhaps three inept and unsuccessful attempts.
I believe that filing Articles of Impeachment was necessary for me to fully comply with my oath to defend the Constitution. This is why I filed H.Res.438 on July 12. But no one believes that this Congress is likely to impeach and remove President Trump anytime soon. So, what is the practical effect?
One possibility and this is a faint hope, is that the actual filing of Articles of Impeachment, combined with other factors, will cause the White House staff to stage an “intervention.” Already Republican Senators are publicly and privately warning President Trump that he needs to restrain his behavior or impeachment will become real. Recently, Senator Lindsey Graham warned the President that if he fires Attorney General Jeff Sessions “all hell would break loose.” This was a clear reference to impeachment, a warning made more tangible by the filing of Articles of Impeachment. Perhaps, Republicans and White House staff can convince President Trump to exercise impulse control and to govern competently. Maybe they can persuade him that never again should he impulsively blurt out highly sensitive intelligence to a Russian foreign minister.
What seems more likely is that Trump will continue to provide reckless and incoherent governance, even after the appointment of his new Chief of Staff, General Kelly. If this continues into next year unabated, Republicans will eventually join in the impeachment effort, and a few will thank me for getting the ball rolling in July of 2017.
I did not file Articles of Impeachment to further the interests of my political party or the political values I have fought for all my life. I served with Mike Pence in the House for twelve years and disagree with him on almost every issue. I never dreamed I would author a measure that would put him in the White House. If Trump were removed, Pence would provide constitutional, law-abiding, and relatively competent leadership devoted to implementing a deplorable agenda. I took an oath to protect the country and the Constitution, not an oath to seek advantage for my political party.
The parallels to Watergate are striking. In 1972, Republican burglars stole files from the Democratic National Committee (DNC) headquarters. Back then files were sheets of paper in manila folders. In 2016, Russian cyber burglars stole files from DNC headquarters. Today, “files” are electrons on hard drives.
The Watergate break-in was discovered in June 1972. About a year later, Articles of Impeachment were filed against Richard Nixon. The cyber burglary of the DNC was discovered last Spring. About a year later, I filed Articles of Impeachment against Donald Trump.
It took about a year after the Articles of Impeachment were filed against Nixon until the House Judiciary Committee voted to report such Articles to the House floor. (At that point, Richard Nixon resigned.) As things are now proceeding, it wouldn’t surprise me if roughly a year after I filed Articles of Impeachment there was a vote to impeach President Trump in the House Judiciary Committee. But how the future unfolds depends chiefly on whether Trump provides capable, competent leadership—his fate is in his own hands.
There are some differences between Watergate and the present case. Nixon faced a Democratic majority in the House of Representatives while Trump enjoys a Republican majority. So a higher level of public concern will be necessary to initiate impeachment hearings. On the other hand, Nixon was competent, careful, and not a Russian stooge. If Trump remains the opposite, then within a year, we may see the level of public concern necessary to force impeachment hearings.
A final similarity to Watergate: It was never proven that Nixon colluded with the Watergate burglars. It was not the initial crime that doomed Nixon, it was the cover-up, the Obstruction of Justice. We may never know whether President Trump colluded with the Russian cyber burglars. If Trump is impeached, it will not be for the initial crime, but for the cover-up, the Obstruction of Justice.
We need not wait until all the various investigations give us a complete catalog of all of Trump’s possible wrongdoings. We have the sworn testimony of a credible and percipient witness and Trump’s own words on videotape (Lester Holt) and audiotape (The New York Times). We have clear and convincing evidence that President Trump is guilty of Obstruction of Justice. It is time now for the House Judiciary Committee to begin hearings on impeachment.
Congressman Sherman has represented California’s San Fernando Valley since 1997. He is a graduate of Harvard Law School. He is the first member of the House of Representatives to file Articles of Impeachment (H.Res. 438), co-sponsored by Representative Al Green (D-TX).