Earlier this week Benjamin Wittes and Jane Chong of Lawfare called for the beginning of impeachment proceedings. Jane now continues with a look at her list of the top four impeachment myths. I found the last, concerning the Emoluments Clause, the hardest to comprehend, and perhaps the most disturbing:
But note what Ben and I are not saying. We are not saying that financial conflicts are not a big deal, that they do not pose a serious threat to U.S. national security, or that they cannot be a basis for impeachment in the future just because Congress has other tools in its toolbox. We are not saying Trump is not violating the Emoluments Clause, or that an impeachment inquiry cannot be launched if evidence emerges that he has taken secret improper actions for personal profit and to the detriment of the country. We are merely pointing out that Congress has not lifted a finger to do anything about blatant Trump’s financial conflicts, or moved to provide the public essential information about the unknown ones, and that this matters. It prevents Congress from credibly claiming, based on the current facts, that it perceives his financial dealings as conduct for which an impeachment inquiry is warranted today. If Congress wants to prevent the President from concealing his tax returns, it can pass a law. Ditto if it wants to oust Jared Kushner and Ivanka Trump from the White House staff. It has all manner of tools to enforce its interpretation of the Emoluments Clause to the extent it disagrees with the President’s.
The question of whether the president’s conduct qualifies as treason, bribery, or “high Crimes and Misdemeanors” is more contingent and dynamic than is appreciated. The temptation is to think of it as a two-dimensionsional figure on the page: either the thing the president did is sufficiently egregious and subversive of the Constitution to qualify as an impeachable offense, or it is not. But it is properly understood in three dimensions; the impeachable offense is a ball that the president sometimes tosses back and back with Congress. If, as [Charles] Black argued, an impeachable offense is one “that a reasonable man might anticipate would be thought abusive and wrong,” then Congress’s own behavior in ratifying that conduct matters, because it narrows the band of clearly abusive and wrong conduct. The result is what we have now: our own Justice Department is investing hundreds of hours defending Trump’s right to profit from his business ventures while in office—and Congress is funding that defense. How legitimate could it be, then, for that same Congress then to declare that the activities it has refused to clearly prohibit and that it is funding the Justice Department to defend are impeachable? Shouldn’t it at least stop paying for the defense first?
Trump may well be violating the Emoluments Clause at this very moment. But if Congress intends to undo a national election, it must do it without opportunism or deceit. It’s not enough that the president has done or is doing a very bad thing if Congress has all but signed off on the conduct. This is where the political nature of impeachment reasserts itself: congressional complicity in the president’s unconscionable pursuit of personal enrichment, or in obscuring it from public view, makes it difficult, even impossible, for Congress to turn around and impeach him for it.
But a failure to condemn a particular variety of conduct is not the same as condoning it – not from a composite body with leaders beholden to the President. I shan’t make the mistake of taking their failure to pass such laws as evidence of their being kept, as that would be circular reasoning. Instead, we can reasonably believe they are kept by Trump through the vociferousness of his supporters and how those supporters can affect the re-election chances of those members of Congress who are members of Trump’s party.
On the other side of that argument, however, is the fact that they did pass the stringent sanctions on Russia earlier this year, and this might suggest they are not as beholden as I’d like to think, although a mitigating factor might be the difference in subject, although paradoxically I’d argue that the two subjects are of equal importance to national security.
In the end, taking a composite body in which the dominant faction is extremist as having, in some way, judged and condoned President Trump’s actions with regards to the Emoluments Clause is a galling, appalling thought, yet I must suppose this is standard procedure in the realm of the law.
