High crimes and misdemeanors redux
Less than two weeks into his new administration, and Mr. Trump is not testing the limits of presidential powers, he is abusing them.
Less than two weeks into the new Trump administration no reasonable person can have any doubt that Mr. Trump is guilty of high crimes and misdemeanors. What is less clear is whether Congress’ cowardly complicity makes them guilty as well.
The Constitution does not define “high crimes and misdemeanors” but historical uses included abuses of power, violation of the oath of office, serious derelictions of duty, conduct unbecoming the office, and misuse of the office for personal gain. Guilty on all counts.
Several very serious counts are already clear:
The blanket pardons issued to the January 6th insurrectionists. This is a textbook example of the abuse of power. It is not illegal for the president to pardon any criminal. But the concept of high crimes and misdemeanors was never limited to illegal acts. In this case, Mr. Trump freed criminals who sought to overturn our democracy by stopping the peaceful transfer of power. Mr. Trump freed the most criminals found to have beaten police offices and seditionists who were convicted of conspiracy as that planned and organized the armed groups who stormed the capitol. Mr. Trump’s blanket purpose did not serve justice, but it did serve his own ends. It was part of his campaign to erase his own culpability in the 2020 attack. And it was a way to cement an alliance with the militia movement. Mr. Trump subsequently invited Stuart Rhodes, the leader of the Oath Keepers, to sit with other VIPs at a rally in Nevada. Now members of these militias are taking to the internet to vow allegiance to Trump and to promise to fight for his agenda. Experts warn that this raises the threat of political violence in the country.
The effort to erase birthright citizenship from the Constitution. Mr. Trump swore an oath to defend the constitution, and then immediately ordered his agents to ignore its plain language. It does not lessen the violation that a judge put a stop to it. Good people can disagree about what the Constitution says and often do. But sometimes the language is plain and clear. As U.S. District Court Judge John Coughenour put it, ‘This is a blatantly unconstitutional order.”
Trump immediately blamed the judge, saying, “there’s no surprise with that judge.” Ad hominem attacks should be beneath the dignity of the office. In Trump’s case, they pose lethal threats. Unlike any president, Mr. Trump has built an alliance with extra-legal militia groups who have promised to go after his enemies. (See above.)
Trump fired all the career prosecutors who worked for Jack Smith. In his termination letter, the acting AG wrote “heaGiven your significant role in prosecuting the President, I do not believe that the leadership of the Department can trust you to assist in implementing the President’s agenda faithfully.” Firing prosecutors who did the work they were assigned to do is, of course, illegal. It violates the Civil Service Act. This is more than simple retribution, though that alone would be inappropriate. This act undermines the rule of law, it weaponizes the justice department, and chills future investigations into wrongdoing.
Trump impounded all federal grants. This is illegal. The Supreme Court in Train v New York stopped then President Richard Nixon from freezing funds Congress had allocated. Congress followed up by passing the Impoundment Control Act. That Act says that a president must spend the funds that Congress allocates. It also allows a president to request that Congress rescind allocations, but both houses of Congress would have to agree on a recission within 45 days, otherwise the funds must be available for obligation.
Mr. Trump’s move to freeze all federal grants is not just a test of the Impoundment Control Act. The government makes about $1.1 trillion in grants every year. These include Medicare grants, HUD grants to state and local governments, research grants to universities, and scores of other programs that touch every American’s life. Withholding these funds can bankrupt states, cities, nonprofits, universities, arts organizations. It can close hospitals and delay necessary surgeries. It will literally kill people.
Mr. Trump is clear that he is using this illegal impoundment to bring his adversaries to heel. The memo from acting OMB director Matthew Vaeth explains, “The temporary pause will provide the Administration time to review agency programs and determine the best use of the funding for those programs consistent with the law and the President’s priorities.” In other words, trillions of dollars in federal spending is Mr. Trump’s to spend as he pleases. This is not, and never has been the way our democracy works.
There are more examples. For example, he defied a law passed by Congress and upheld by the Supreme Court that banned TikTok as a national security threat. Trump has refused to enforce that law. Already this much is clear, less than two weeks into his new administration, and Mr. Trump is not testing the limits of presidential powers; he is guilty of abusing them.
The open question is whether or not those who abet these crimes while holding seats in Congress are also culpable. I am not yet ready to say they have committed impeachable offenses. I am certain, however, they have committed unforgivable ones.