The End of the Rule of Law
The End of the Rule of Law
Mr. Fish / Truthdig
Bruce Fein, a former senior official in the Department of Justice and a
constitutional scholar, has identified 12 impeachable offenses committed by
Donald Trump. But, as he notes, many of these constitutional violations are
not unique to the Trump administration. They have been normalized by
Democratic and Republican administrations. These long-standing violations
are, for this reason, ignored by Democratic Party leaders seeking to impeach
the president. They have chosen to focus exclusively on Trump's attempt to
get the Ukrainian president to open an investigation of Joe Biden and his
son, Hunter, in exchange for $400 million in U.S. military aid and a visit
by the Ukrainian leader to the White House. Ignoring these institutionalized
violations during the impeachment inquiry, Fein fears, would legitimate them
and lead to the death of democracy.
In a letter on Friday to House Speaker Nancy Pelosi, also signed by Ralph
Nader and Louis Fisher, Fein warns that Trump is "shattering our entire
constitutional order." He lists as the president's most serious
constitutional violations the "defiance of congressional subpoenas and
oversight; spending billions of dollars on a southern border wall not
appropriated for that purpose; continuing or expanding presidential wars not
declared by Congress; exercising line-item veto power; flouting the
Emoluments Clause; and, playing prosecutor, judge, jury, and executioner to
kill any person on the planet based on secret, unsubstantiated information."
But he also notes that many of these violations are not unique to Trump and
were also carried out by Barack Obama and George W. Bush.
"Many of the Democrats in the past have been complicit in these violations,"
Fein said when I reached him by phone in Washington, D.C. "They have unclean
hands. They have acquiesced in illegal surveillance, as revealed by Edward
Snowden. The most serious constitutional violations are the ones that are
institutional usurpations. These usurpations [by both parties] have
permanently weakened, if not eviscerated, the power of the legislature
versus the executive."
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"We have a Congress whose members, by and large, do not want the
responsibilities the Constitution entrusts them with," Fein continued. "They
like to give away everything to the president and then clamor if something
goes bad. The most worrisome constitutional violations are, unfortunately,
ones many members of Congress rejoice in. It enables them to escape making
hard choices that might compromise their ability to win reelection. But you
can't rely on a past dereliction to justify its perpetuation indefinitely."
"If we take a narrow approach to impeachment, that will mean that all the
more egregious violations will be viewed as having been endorsed and not
rebuked and successive presidents will feel they have a green light to
emulate Trump on everything except a Ukrainian shakedown," Fein said. "This
is dangerous for the country. This could boomerang, even if we get rid of
Trump, by endorsing these usurpations forever. This would be a return to a
one-branch government like the monarchy we overthrew in 1776. The unwitting
result is to further the [power of the] executive rather than diminish it,
which is what should be happening."
Bush and Obama bequeathed to us nine illegal wars, if we include Yemen. None
were declared by Congress, as is demanded by the Constitution. Bush placed
the entire U.S. public under government surveillance in direct violation of
the Fourth Amendment and the Foreign Intelligence Surveillance Act (FISA),
which makes it a crime for the government to surveil any American citizen
without authorization by statute. Under the Executive Order 10333 the
president spies on Americans as if they were foreigners, although this
surveillance has not been authorized by statute. Bush embarked on a global
program of kidnapping and torture, including of foreign nationals, which
Obama continued. Bush and Obama carried out targeted assassinations, usually
by militarized drones, across the globe. And Obama, reinterpreting the 2002
Authorization for Use of Military Force Act, gave the executive branch the
authority to assassinate U.S. citizens. The killings began with drone
strikes on the radical cleric Anwar al-Awlaki and, two weeks later, his
16-year-old son. Such a violation denies U.S. citizens due process. By
signing into law Section 1021 of the National Defense Authorization Act,
Obama-whose record on civil liberties is even more appalling than Bush's
gutted the 1878 Posse Comitatus Act, which prohibits the use of the military
as a domestic police force.
These two presidents, like Trump, violated treaty clauses that required
Senate ratification. Obama did this when he signed the Iran nuclear deal and
Trump did this when he walked away from the deal. Bush and Obama, like
Trump, violated the appointments clause of the Constitution by appointing
people who were never confirmed by the Senate as required. The three
presidents, to override Congress, all routinely abused their right to use
executive orders.
At the same time the courts, a wholly owned subsidiary of corporate power,
have transformed the electoral system into legalized bribery through the
Citizens United ruling, handed down by the Supreme Court in 2010.
Corporations pouring unlimited money into elections was interpreted by the
court as the right to petition the government and a form of free speech,
essentially overturning the people's rights by judicial fiat. Also, the
courts have steadfastly refused to restore basic constitutional rights
including our right to privacy and due process. "The constitutional rot is
in all three branches," Fein said.
The 12 impeachable offenses committed by Trump and singled out by Fein are:
1. Contempt of Congress
Trump made clear his contempt of Congress when he boasted, ". I have Article
II, where I have the right to do whatever I want as president."
"President Trump has repeatedly and unconstitutionally systematically
undermined the congressional oversight power, including the ongoing
congressional impeachment inquiry of the President himself, by instructing
numerous current and former White House staff and members of the executive
branch to defy congressional subpoenas on an unprecedented scale far beyond
any previous President," Fein wrote to Pelosi. "Without congressional
authority, he has secretly deployed special forces abroad and employed
secret guidelines for targeted killings, including American citizens, based
on secret unsubstantiated information. He has unconstitutionally endeavored
to block private persons or entities from responding to congressional
requests or subpoenas for information, e.g., Deutsche Bank. He has refused
to provide Congress information about nepotistic or other security
clearances he granted in opposition to his own FBI security experts. He has
refused to disclose his tax returns to the Chairman of the Ways and Means
Committee contrary to a 1924 law, 26 U.S.C. 6103 (f)."
2. Abuse of the Powers of the President and Abuse of Public Trust
"Unlike prior presidents, he has made presidential lies as routine as the
rising and setting of the sun, confounding civil discourse, truth and public
trust," the memo to Pelosi reads. "He has disrespected, belittled, and
serially preyed upon women, mocked the disabled, incited violence against
the mainstream media and critics, and encouraged and displayed bigotry
towards minorities and minority Members of Congress, including intercession
with Israel in serious violation of the Speech or Debate Clause, Article I,
section 6, clause 1, to deny two Members visitor visas."
3. Appropriations Clause, Revenue Clause
"Congress has consistently voted much less money than President Trump
requested to build an extensive, multi-billion-dollar wall with Mexico," the
memo reads. "In violation of the Clause and the criminal prohibition of the
Anti-Deficiency Act, President Trump has committed to spending billions of
dollars far in excess of what Congress has appropriated for the wall. The
congressional power of the purse is a cornerstone of the Constitution's
separation of powers."
Article I, Section 7, Clause 1 of the Constitution requires all revenue
measures to originate in the House of Representatives.
"In violation of the Clause, President Trump has raised tens of billions of
dollars by unilaterally imposing tariffs with limitless discretion under
section 232 of the Trade Expansion Act of 1962," the memo reads. "He has
become a Foreign Trade Czar in imposing tariffs or quotas or granting
exemptions from his trade restrictions in his unbridled discretion to assist
political friends and punish political enemies. Literally trillions of
dollars in international trade have been affected. Riches are made, and
livelihoods destroyed overnight with the capricious stroke of President
Trump's pen."
4. Emoluments Clause
"Article I, section 9, clause 8 prohibits the President (and other federal
officers), without the consent of Congress, from accepting any 'present,
emolument, office, or title, of any kind whatsoever, from any King, Prince,
or foreign state.'
"President Trump has notoriously refused to place his assets in a blind
trust," the memo reads. "Instead, he continues to profit from opulent hotels
heavily patronized by foreign governments. He has permitted his family to
commercialize the White House. He has compromised the national interest to
enrich family wealth on a scale unprecedented in the history of the
presidency."
5. Treaty Clause
Article II, Section 2, Clause 2 requires Senate ratification of treaties by
two-thirds majorities. The text is silent as to whether treaty termination
requires Senate ratification, and the Supreme Court held the issue was a
non-justiciable political question in Goldwater v. Carter, 444 U.S. 996
(1979).
"President Trump flouted the Treaty Clause in terminating the
Intermediate-Range Nuclear Forces Treaty (INF) with Russia unilaterally,"
the memo reads. "The treaty assigned the termination decision to the 'United
States.' The President alone is not the United States under the Treaty
Clause."
6. Declare War Clause
Article I, Section 8, Clause 11 empowers Congress alone to take the nation
from a state of peace to a state of war. That power cannot be delegated.
"In violation of the Declare War Clause, President Trump has continued to
wage or has initiated presidential wars in Libya, Somalia, Yemen, Syria,
Iraq, Afghanistan, and Pakistan, and has used special forces offensively in
several African nations," the memo reads. "President Trump has claimed
authority to initiate war against any nation or non-state actor in the
world-not in self-defense-on his say-so alone, including war against North
Korea, Iran, or Venezuela."
7. Take Care Clause; Presentment Clause
Article II, Section 3 obligates the president to "take care that the laws be
faithfully executed."
"In violation of that trust, President Donald J. Trump deliberately
attempted to frustrate special counsel Robert Mueller's investigation of
collaboration between the Trump 2016 campaign and Russia to influence the
presidential election," Fein points out. "Among other things, the President
refused to answer specific questions relating to his presidential conduct;
endeavored to fire the special counsel; dangled pardons for non-cooperating
witnesses; and, urged Attorney General Jeff Sessions to reverse his recusal
decision to better protect his presidency. In all these respects, the
President was attempting to obstruct justice."
"President Trump has also systematically declined to enforce statutory
mandates of Congress by arbitrarily and capriciously revoking scores of
agency rules ranging from immigration to the Consumer Financial Protection
Board to the Environmental Protection Agency in violation of the
Administrative Procedure Act or otherwise," the memo reads. "He has
routinely legislated by executive order in lieu of following
constitutionally prescribed processes for legislation."
"In violation of his constitutional duty to take care that the laws be
faithfully executed, Mr. Trump has dismantled and disabled scores of
preventive measures to save lives, avoid injuries or disease, help families,
consumers, and workers, and detect, deter, and punish tens of billions of
dollars of corporate fraud," the memo continues. "He has disputed climate
disruption as a 'Chinese hoax,' compounded the climate crisis by overt
actions that expand greenhouse gas emissions and pollution, and excluded or
marginalized the influence of civil service scientists."
8. Due Process Clause
The Fifth Amendment provides that no person shall "be deprived of life .
without due process of law."
"In violation of due process, President Trump claims power, like his
immediate two predecessors, to act as prosecutor, judge, jury, and
executioner to kill American citizens or non-citizens alike, on or off a
battlefield, whether or not engaged in hostilities, whether or not accused
of crime, and whether or not posing an imminent threat of harm that would
trigger a right of preemptive self-defense," the memo reads.
9. Appointments Clause
"President Trump has repeatedly appointed principal officers of the United
States, including the National Security Advisor and Cabinet officials, who
have not been confirmed by the Senate in violation of the Appointments
Clause, Article II, section 2, clause 2," the memo reads. "On a scale never
practiced by prior presidents, Mr. Trump has filled as many as half of
Cabinet posts with 'Acting Secretaries' who have never been confirmed by the
Senate."
10. Soliciting a Foreign Contribution for the 2020 Presidential Campaign and
Bribery
"President Trump has endeavored to corrupt the 2020 presidential campaign by
soliciting the President of Ukraine to contribute something of value to
diminish the popularity of potential rival Joe Biden, i.e., a Ukrainian
investigation of Mr. Biden and his son Hunter relating to potential corrupt
practices of Burisma, which compensated Hunter handsomely ($50,000 per
month). In so doing, Mr. Trump violated the criminal campaign finance
prohibition set forth in 52 U.S.C. 30121," Fein's memo reads.
"President Trump solicited a bribe for himself in violation of 18 U.S.C. 201
in seeking something of personal value, i.e., discrediting Joe Biden's 2020
presidential campaign with the help of the President of Ukraine to influence
Mr. Trump's official decision to release approximately $400 million in
military and related assistance," it adds.
11. Violating Citizen Privacy
"Government spying on Americans ordinarily requires a warrant issued by a
neutral magistrate based on probable cause to believe crime is afoot," the
memo reads. "President Trump, however, routinely violates the Fourth
Amendment with suspicionless surveillance of Americans for non-criminal,
foreign intelligence purposes under Executive Order 12333 and aggressive
interpretations of the Foreign Intelligence Surveillance Act."
12. Suppression of Free Speech
"President Trump is violating the First Amendment in stretching the
Espionage Act to prosecute publication of leaked classified information that
are instrumental to exposing government lies and deterring government
wrongdoing or misadventures, including the outstanding indictment against
Julian Assange for publishing information which was republished by the New
York Times and The Washington Post with impunity," the memo reads.
"The Republic is at an inflection point," the letter to Speaker Pelosi
reads. "Either the Constitution is saved by impeaching and removing its
arsonist in the White House, or it is reduced to ashes by continued
congressional endorsement, whether by omission or commission, of limitless
executive power and the undoing of checks and balances."
Chris Hedges
Columnist
Chris Hedges is a Truthdig columnist, a Pulitzer Prize-winning journalist, a
New York Times best-selling author, a professor in the college degree
program offered to New Jersey state prisoners by Rutgers.
Chris Hedges