Hours after midterm election night 2018, Mollie Hemingway reported that incoming House Judiciary Committee Chair Jerrold Nadler (D-NY) had impeachment on his mind, cavalierly chatting away on his phone on a train to Washington about the prospect of raising it against President Donald Trump. If his recent words are any indication, he may very well make good on that threat.
Following the release of the sentencing memorandum for the president’s former personal lawyer, Michael Cohen, which alleged that Cohen had engaged in campaign finance violations at the behest of then-candidate Trump, Nadler took to the airwaves to lodge his most serious claim yet regarding presidential impeachment. Here’s the relevant exchange from CNN’s “State of the Union” with Jake Tapper:
TAPPER: If it is proven that the president directed or coordinated with Cohen to commit these [two federal campaign finance] felonies…are those impeachable offenses?
NADLER: Well, they would be impeachable offenses…even though they were committed before the president became president, they were committed in the service of fraudulently obtaining the office. That would be the — that would be an impeachable offense.
Nadler was careful to hedge, caveating that “You don’t necessarily launch an impeachment against the president because he committed an impeachable offense.”
Yet Nadler Excused Clinton for the Exact Same Thing
Nadler appears to be applying a dumbfounding double standard brought into stark relief when one reviews his record on the matter of presidential impeachment. Twenty years ago this month, the Democratic congressman from New York took to the House floor to deliver an impassioned defense of then-President Bill Clinton against impeachment.
Nadler began by declaring: “[I]mpeachment is reserved under the Constitution only for abuses of presidential power that undermine the structure or functioning of government, or of constitutional liberty.”
Are we to believe, then, that alleged campaign finance violations undermine the “structure or functioning of government, or of constitutional liberty?” Ironically, on the latter point, campaign finance laws themselves often restrict the very speech—political speech—at the core of the First Amendment. Also, Nadler references presidential abuses. President Trump was not in office when such alleged violations transpired.
The congressman continued: “It [impeachment] is not intended as a punishment for crimes, but as a protection against a president who would abuse his powers to make himself a tyrant…” How does the attempt to hide private sexual matters during an election qualify as a tyrannical abuse of power?
Nadler proceeded to the crux of the Democrats’ defense of then-President Clinton: “Perjury in a private matter, perjury regarding sex is not a great and dangerous offense against the nation. It is not an abuse of uniquely presidential power. It does not threaten our form of government. It is not an impeachable offense.”
Why is “perjury regarding sex,” and while in office, “not a great and dangerous offense against the nation,” but an alleged campaign finance violation regarding sex that occurred prior to entering office impeachable? How do two-year-old hush money payments affect “the president’s duties and performance in office?” In what world are alleged campaign finance violations concerning $280,000 “great and dangerous offense[s] against the nation?”
Definitionally, the payments are not abuses of “uniquely presidential power” (emphasis mine). Nor do they “threaten our form of government.” So how could they qualify as impeachable offenses?
Now, recall that Nadler argued the hush payments aided the president in “fraudulently obtaining the office,” presumably to get around the fact Trump was not president when the alleged violations occurred. If that is the standard, then is any candidate who wins an election while concealing potentially explosive stories, or having third parties conceal such stories, perpetrating a fraud on the public and liable to be impeached?
Did the Los Angeles Times’ suppression of the tape of Barack Obama celebrating Rashid Khalidi, or the media’s concealment of the photo of Obama with his arm around Louis Farrakhan, similarly count as undisclosed in-kind contributions that helped him “fraudulently obtain the office?”
Even Today, Dems’ Impeachment Case Is Weak
Now set aside for a moment whether Nadler would move to impeach, which is a political question. Does potentially breaking campaign finance law, or directing someone to break such law, really rise to the level of a “high crime and misdemeanor?” It’s highly doubtful.
- Paying for silence is no crime. Congress has a taxpayer-funded slush fund for this very purpose. It breathtakingly covers matters like sexual harassment settlements, not consensual acts, as alleged here. Are our representatives breaking the law? It is highly questionable whether such payments would be characterized as campaign expenses under the Federal Election Campaign Act (FECA). Politically damaging though these alleged liaisons may have been, their disclosure also posed familial and financial risks the president likely would have wanted to mitigate.
- Subjectivity is also at play: Do hush payments “influence” an election in the same way as yard signs or advertisements? When tested in the case of presidential candidate John Edwards’ payments to his mistress, the campaign expenditure argument failed.
- Even if such payments were deemed undisclosed in-kind contributions, with the attendant legal implications attaching to the president, we lack proof he “knowingly and willfully” violated such laws, as per FECA 52 U.S.C. § 30109(d). Former Federal Elections Commission (FEC) member Hans von Spakovsky makes a compelling case neither Trump nor Cohen could have knowingly and willfully broke the law given its ambiguity, and the stated views of FEC leaders themselves.
- It is unclear whether conduct prior to entering office can be impeachable, a point Nadler strains to make.
- President Barack Obama committed a campaign finance violation involving a far larger sum, and, as is customary, was merely slapped with an administrative fine. Why, then, would President Trump’s alleged campaign finance violations, however unseemly, rise anywhere near the level of impeachable offenses?
The Collusion and Obstruction Cases Are Weak So Far, Too
Now, some will still scream “collusion!” and “obstruction!” A brief word on these two charges.
Occam’s Razor has told us for months there is no “there” there on the non-crime of collusion. If the GOP primary field, the Clinton-Democratic Party machine, hyper-politicized leadership in the intelligence agencies and law enforcement, other Resistance forces within the executive branch, plus a team of partisan Democrat super-lawyers led by a former FBI director tasked explicitly with discovering Trump-Russian collusion and equipped with endless resources and a limitless mandate, have all not found anything yet, it is not there.
Meanwhile, the facts of Trump’s presidency show that he has been far tougher on Russia than his predecessor was. Or are acts like the pending withdrawal from the Intermediate-Range Nuclear Forces Treaty false flags?
As for obstruction, suffice it to say that presidents not only have the power to fire subordinates, but arguably have a duty to do so if those subordinates prevent the president from faithfully executing his office. Both the firing memo drafted by Deputy Attorney General Rod Rosenstein and the Department of Justice Inspector General Michael Horowitz report more than justify Trump’s decision to fire then-FBI director James Comey.
And how can one obstruct an investigation, particularly a counterintelligence investigation, if there is no underlying crime? To the argument that asking Comey to lay off former National Security Advisor Mike Flynn constituted obstruction—leaving aside the dubious circumstances surrounding the investigation into him and more ambush than interview to which he was subjected—former federal prosecutor Andrew McCarthy argues persuasively that there is no obstruction case.
Collusion and obstruction are far more weighty concerns than campaign finance violations. But such charges are arguably less justified than the already legally tenuous campaign finance infractions Nadler says would be impeachable. In any event, the rhetoric from Democrats seems to indicate at least for the moment a downgrading from “treasonous Russian collusion” to “alleged campaign finance violations.”
With this context in mind, one wonders if Nadler recalls how he concluded his defense of President Clinton:
The effect of impeachment is to overturn the popular will of the voters. We must not overturn an election and remove a president from office except to defend our system of government or our constitutional liberties against a dire threat. And we must not do so without an overwhelming consensus of the American people. There must never be a narrowly voted impeachment, or an impeachment supported by one of our major political parties, and opposed by the other. Such an impeachment will produce divisiveness and bitterness in our politics for years to come, and will call into question the very legitimacy of our political institutions…We have no right to overturn the considered judgment of the American people…
Mr. Speaker…You may have the votes. You may have the muscle. But you do not have the legitimacy of a national consensus or of a constitutional imperative. This partisan coup d’etat will go down in infamy in the history of this nation.