On Contact: Death of the US Constitution

CH: 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, for this reason, were ignored by the Democratic Party leaders, seeking to impeach the President.  They chose 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 $400,000,00 in US military aid.  And a visit by the Ukrainian leader to the White House.  Ignoring these institutional violations during the impeachment inquiry fine argues legitimates them.  It accelerates the death of our democracy.  Joining me in the studio in Washington to discuss the multiple failures of the impeachment process is Bruce Fein.  So, as this was beginning, you and Louis Fisher and Ralph Nader sent a letter to Nancy Pelosi.  And in it, you warn that Trump is, you write, “…shattering our entire constitutional order.”  And you list the most serious constitutional violations.  And we’re going to go through them, 12 of them.  And yet, despite your emphatic warning, the Democratic Party chose to prosecute or attempt to impeach Trump on, you know, the most trivial offenses.  And I--and now that we’ve finished the impeachment process, essentially, as you had pointed out, what we have done is normalize these egregious constitutional violations.  But talk about the danger that I think you correctly, you know, raised.

BF: Well, first, Chris, I want to elaborate having been up in those congressional quarters of power, well, the issue with how serious charges to lodge against Mr. Trump.  The calculation was a purely political one by the House Speaker Pelosi trying to save the seats of the half dozen or dozen Democrats who won districts that otherwise voted for Trump.  And there was no principle to the standards or the decision-making whatsoever.  But also when we confronted big headwinds was precisely when we started to focus on charges that Democrats and Republicans were complicit in, flouting the declare of war clause, flouting the oversight power, flouting the treaty authority, flouting the appointments clause, flouting the appropriations clause, all those kinds of things.  Nancy Pelosi herself was complicit in some of those, for example saying nothing when Mr. Obama went to war with Libya on his own, expanded the war in Syria on his own, did what was really should have been a treaty with Iran to constrain their nuclear ambitions without a treaty, but just an executive agreement.

CH: Which I should--which treaties are supposed to be approved by Congress.

BF: The--yeah, exactly, by majority.

CH: A war is supposed to be declared by Congress.

BF: Absolutely.  And the reason why it was very disappointing, a couple.  One, these other egregious violations, they have huge implications.  Our warfare state, we’re now involved in at least nine presidential wars.  They absorb a staggering amount of money.  Aside from the lives that are shattered and liberty that’s curtailed, trillion-dollar plus every single year and it makes us less safe.  What does that mean?  We don’t have money for the roads, the schools, the hospitals, the social welfare programs, cleaning up environmental contaminated sites, and things of that sort.  So, the consequences are huge, over a trillion dollars.  Most all of our discretionary spending outside of Social Security is the military budget.  For what?  We are safe.  And the military comes back every year and says, “Oh, after we spent a trillion dollars, now the world is more dangerous than it was before.”  So you say, “What are we spending this money for?”  But the second thing, I think, that’s equally important, Chris, was totally overlooked by the Democrats, and indeed the Republicans, too.  Remember the framers adopted impeachment.  They said it was a surrogate for tyrannicide, the civilize way you remove someone who’s not a trustworthy steward of our liberties.  And think of 1789 and how much trivial power the president had as opposed to today.  The ability of George Washington views his power was nothing, you know.  He had a budget maybe of a couple hundred thousand dollars.  He didn’t have any standing army.  He had three Cabinet members.  You know, now, look at the current incumbent, almost $5,000,000,000,000 budget, the most terrifying arsenal in the history of the world.  So since the ability of the president, if he’s trustworthy, to destroy the whole country and the world is so much greater.  The standards of impeachment should be even more strict.  Because you don’t want to roll dice, not only with the nation, but with the entire species and yet they are arguing like we’re back in 1789.  And they charge these little kind of anemic offenses, if you will, and the Democrats didn’t want to sell arms to Ukraine when Obama was there.  So, it looks kind of hypocritical.  Now you’re denouncing Trump to do what we want?  So the whole thing was a complete disaster.  So, all these huge violations now become more permanently embedded in our practice in our presidents.

CH: So, I mean, one of the things that we saw, and I think what we’re going to talk about, is the complete breakdown of the rule of law and constitutional protection.  But just this open decision by the White House to repeatedly ignore subpoenas, and I--and if I had that right, when they impeached Nixon, it’s…

BF: It’s one subpoena.

CH: One--ignored one subpoena, right.

BF: Yes.  And now it’s indiscriminate.  And it’s very important things.  Just in the last week, the administration has denied Congress three critical pieces of information.  One, they would never tell Congress what was the foundation for killing General Soleimani, Iran’s head.  Based upon four embassies allegedly [INDISTINCT] imminent text.  They know we’re not going to tell you.  So they really backed away and they wouldn’t give that information to Congress yet Congress funds the Defense Department.  Secondly, they said they will not share with Congress the intelligence community’s findings as who are the responsible parties for assassinating Jamal Khashoggi because it was Saudi Arabia and Trump wants to continue selling huge amount of arms.  Then most recently, the Congress of the United States was asking for this information relating to--and I’ve already forgotten the third item here, but the Congress simply said, “We are not going to supply any information that we believe should be held secret.”  Oh, this is the Taliban deal.

CH: Oh, right, the--right, right.

BF: The secret peace deal with Taliban so that the Congress said, “Well, we need to know what the terms and conditions of the peace deal with Taliban.”  We said no, we aren’t going to tell you.  Taliban can know, but not you.  And those are just the tip of the iceberg, Chris.  Over and over and over again, they will not tell Congress where we have these secret military bases, special forces, members of Congress wake up and said, “We had a solider die in Mali this year?”  They don’t even know that they have the troops stationed there.  And so when Congress basically is brain dead, they don’t know anything that’s going on in the executive branch, they’re totally feeble, unable to police wrongdoing and abuses and that’s where we are today.

CH: Essentially, what we--by giving Trump a pass now, he has complete impunity, he’s using it, he’s purging the US government, and making appointments based on personal loyalty to him rather than competence.  Before we get into what we’ve normalized in terms of constitutional violations in your list, what is the--what are the consequences of the failure on the part of the senate to uphold the rule of law?

BF: Well, the consequences are we now have basically a limitless power in the executive, far greater than King George III, who provoked American Revolution, exercised over the colonies.  I mean, this president now goes to war on his own, decides whether or not he’s going to share information on his own, he surveils, he spies on his own, he spends money on his own, he decides to appoint members to this Cabinet on his own, Senate confirmation is out the window, he doesn’t have any obligation to take care that the laws are faith to the executor.  If he doesn’t like law, he just says, “Well, I just don’t feel like I want to enforce it or whatever.”  So all those kinds of things shows that we’re really off the charts with regard to the general constraints that the constitution in place imposes on the Chief Executive.

CH: Let’s go through the list, 12 impeachable offenses committed by Trump and the democrats.  Contempt of Congress.

BF: Yes.  The Contempt of Congress is the flouting of congressional subpoenas, the obligation to testify.  And remember, even at the time when the House was considering a contempt article, they had Donald McGahn, John Bolton, all these people say no, that they, you know, don’t want to testify or they wouldn’t testify under oath, all of his Cabinet members.  Pompeo wasn’t going to testify.

CH: No.  And the ones who did testify have all been kicked out.

BF: Yeah.  Yeah.  The ones that testified truthfully are the ones who lost their jobs, the ones who flouted the Congress, Mick Mulvaney.  You remember, Mick used to be the Chief of Staff and he said about the Ukraine deal, well, of course, got to get over it.  We always do these things.  So, he obviously would have undercut the president, telling him that nothing was wrong done here.  The, you know, I’m not going to testify.  I don’t want to say anything about this.  Now, when you have national security assessments that are supposed to be available to the Congress of the United States and, say, fund the trillion dollar-plus national security budget, no, we don’t want to tell you.  All of this secret, off the record, we need to have all of this our own.  So, the Contempt of Congress is a huge issue.

CH: “Abuse of the Powers of the President and Abuse of Public Trust.”

BF: Yes.  This is the abuse of public trust, abuse of the powers of the president with regard to his obstruction of justice, he didn’t cooperate in the Muller investigation, at least five or ten times.  He attempted to obstruct it by asking his subordinates to have Mr. Mueller fired, to have Mr. Sessions, the Attorney General, un-recuse himself, to suggest that he may offer pardons to people that go along with him so that he can, in some sense, kind of coach testimony.  He wouldn’t permit Donald again to testify about the overtures that he made to Mr. McGahn to have Mueller fired.  He’s not faithfully executing laws, he’s obstructing those laws.  And then you can move to other areas like the immigration laws and the consumer welfare laws, the Consumer Finance Protection Bureau.  If you don’t like a law, the president’s entitled to ask for it to be repealed, to remove.  But he just can’t stand up and say, “Well, that, we don’t want to enforce these laws anymore, we’ll just ignore them and let all the protections that have been built up by prior administrations become de facto, null and void, by simply inaction.”  I say, we have a process by which a president can change the law, it means going to Congress and get the law changed.  He’s doing this by unilateral decree.  I mean, one example I want to underscore, Chris, is this wall issue.  He asked Congress 15 times over, “I want money to build the wall.”  He shut the government down for it.  And then he says, “You know what?  I got the money and I can spend the money anyway.”

CH: He just took it--took it--took it from the Pentagon, by the way.  And that’s not legal, I don’t think.  Is it?

BF: No, it is.  The Antideficiency Act provides a criminal penalty, if you spend money that’s not been appropriated for that purpose by congress.  Now he’s not going to enforce the act against himself.  Obama, however, did the same kind of problem where Congress said you can’t spend money to release any money at Guantanamo Bay unless you give Congress 90 days’ notice because they may want to do something.  Obama did that Bernie--Bernal swap with Guantanamo, he didn’t give any notice at all.  So--and the JO fell.  It’s a violation of the…

CH: And I think we should be fair…

BF: …spending clause…

CH: …that many of these violations, you know, the Democrats engaged in much the same kind of activity.

BF: That’s right.  It’s true that Trump, in some, cases take new level, but the fact is, Chris, no president has ever surrendered power back, no matter how violently it’s been usurped by the predecessor.  They’re going to stay in that president and just move it to a new level, whether it’s Republican or Democrat.

CH: All right.  When we come back, we’ll continue our conversation about the impeachment process and constitutional violations with Legal Scholar, Bruce Fein.  Welcome back to On Contact.  We continue our conversation about the Impeachment Process and the normalization of constitutional violations with legal scholar, Bruce Fein.  So we were speaking about the--these--the 12 principle constitutional violations that have now been normalized and it looks like we’re not going back.  And let’s continue with that.  Appropriations Clause, Revenue Clause.

BF: Yes.  Appropriations and Revenues.  Let’s talk about revenues first.  The Constitution clearly proves that any measure to raise money for the federal government must originate in the House of Representatives.  Let’s think about all the tens of billions that Mr. Trump is raising by unilaterally imposing tariffs quotas on foreign goods.  And this is money that hasn’t been appropriated by Congress.  It obviously didn’t originate in the House, it originated in the White House.  And so we have all this money.  Now, as a pool that Mr. Trump has been able to rise like former King of England without any input and origination in the House, that’s clearly a violation.  Then on the Appropriations Clause, too, he spends money that hasn’t been appropriated for the purpose that he’s spending.  I’d say the most egregious example is the wall.  But there are other measures as well where he was spending money to keep certain--when the government was shutdown to keep certain services open even though Congress made clear, no, when it’s a shutdown, there isn’t any money for these kinds of purposes.  And remember it was James Madison, Father of the Constitution said, “The power of the person is the--it’s the key.”  It is the firewall against abuses the executive branch because you can’t do anything without money.  And now Congress has given up the power of the purse to the president.

CH: The Emoluments Clause, boy, he certainly violated that one.

BF: Oh, yeah.  I mean he so obviously…

CH: Right, from day one.

BF: …utilized the federal government.

CH: All these--all these inauguration parties were in the Trump Hotel and…

BF: Yeah.  And foreign government. The Emoluments Clause basically says for the audience, said if the United--if a state of the United States or a foreign government provides you some kind of monetary or other benefit and Congress hasn’t consented, then you violated the Emoluments Clause.  I mean, the Trump International Hotel is a walking, living, breathing violation of the Emoluments Clause.

CH: Yeah.  Of course.  Declare War Clause.

BF: Yes.  We now--President Trump is engaged with continuing and expanding nine presidential wars.  It is very clear from the very beginning of the Constitution that the Americas who wrote the document never trusted a president, the executive to go to war, because during that period, everything flows to the center.  The money, the power, the secrecy, the fame, and that the president, we inclined if he had the war power to concoct excuses because everyone wants to aggrandize power if they’re in politics.  So it made clear everybody, and I mean all the delegates at the constitutional convention, everybody participate in the ratification debates.  All said, only the Congress can take us from the state of peace to war.  Not only did they do that during the convention and ratification process, George Washington said it, Thomas Jefferson said it, James Madison said it, Alexander Hamilton, everybody totally uniform understanding.  And now presidents go to war on their own.  He stands up, Mr. Trump, and he’s not unique.  Obama…

CH: No, Obama did it.

BF: Obama is same.  I’ll decide whether to go in to Iran or China.

CH: And so did Bush.

BF: Or North Korea.  And Bush--W. Bush did the same.  And remember, Bill Clinton, in his administration, he asked Congress for a Declaration of War against Serbia.  Congress voted it down.  So he said, “Okay.  I’ll do it anyway.”

CH: The Take Care Clause, Presentment Clause.

BF: Yes.  The Presentment Clause go back in rivers.  It goes building on.  The president set, most prolifically by President W. Bush, but then Obama as well, these signing statements.  The Founding Fathers understood that part of the strength of Congress, vis-a-vis the executive, we always tell the log rule, put different provisions in a single bill, the president has to take the good with the bad or veto the whole thing.  If you don’t permit that president to pick and choose, he has a line item veto, which the US Supreme Court said is unconstitutional.  So now we have the Presentment Clause, the president signs the bill and says, “Ah.”  But these provisions, I think, encroach amendment powers, I’m not going to enforce them.  That’s clearly a flagrant violation of the requirement that a president sign or veto a bill in total.  The--then they have the other provisions in the Take Care Clause, the president says, he decides which clause he’ll want to faithfully execute.  If he doesn’t like them, even when he signs the bill, he’ll say, “I’ll just ignore them.”  And treat them as hortatory, if you will.

CH: Due Process Clause.

BF: Yeah.  Here we have, like I say, one of the most stunning things in my entire life here in Washington, Chris, is the ease with which we’ve accepted the idea that the president in this war against terrorism can play prosecutor, judge, jury, and execution to kill anybody he wants, citizen…

CH: Which Obama--which Obama did.  Obama…

BF: He took it higher than Bush.

CH: He took it higher than Bush.

BF: He--and he can kill anybody he wants based on secret evidence, never confirm, doesn’t have to be [indistinct] anybody indicted and he doesn’t have to share an explanation with anybody.  You just say I trust you to do it.

CH: And this is what Obama did when he killed the Radical Cleric Anwar al-Awlaki.

BF: And his kid.

CH: And his 16-year-old son in Yemen.

BF: Yes.  And it continues on.  And I believe, Chris, that today that the assassinations, presidential assassinations which by the way also violate an executive order which prohibits Presidential Assassinations 12333.  They continue on a scale that we don’t know about because the congressional oversight power has completely collapsed.  So, these people just disappear and we never even know about them or we attribute them, somebody else, the Israelis did it, Mossad, let’s--were assign that to them because how many times, you know, people just disappear out of the--and we no longer see them?  And we know that the executive branch is inclined.  Anytime you’re in warfare, they--all the history going back for hundred years or more, is the executive branch lies, lies, lies.  The USS Maine, the Mexican-American War, the Lusitania, USS Greer, Gulf of Tonkin Resolution, every time.  So we know they’re probably lying about this stuff.

CH: All right.  Like Soleimani.

BF: Like Soleimani.

CH: The Appointments Clause.

BF: Yes.  Under the Constitution, the president needs to--Senate has to confirm every principal officer of the United States.  President Trump has gone way over in any past practice.  He has half the cabinet or more.  They’ve never been confirmed by the senate whatsoever.  They’re acting this, acting that.  Moreover, what’s equally egregious, and it’s not unique to Trump, the National Security Advisor, perhaps the second most powerful man in the world.  He’s not [indistinct] to Senate confirmation and the Senate lets him get away.  Chris, you know that trustees of the Kennedy Center requires Senate confirmation.  The General Councilmen, the CIA, requires Senate.  The national security advisor does not.  This is utterly and completely ridiculous.  And I want to point out just one example of why it would make a difference.  Michael Flynn, in my judgment, if he went through confirmation, he never would’ve passed muster.  We have known earlier on that he was engaged in lobbying for Turkey illegally.  He was doing various and sundry things require him to register under the Foreign Agents Registration Act.  He wasn’t truthful.  He never would’ve been in.  And moreover, John Bolton never would’ve been confirmed.  Remember, he couldn’t even get confirmed as an appointment to the UN Ambassador under W.

CH: No. They had some kind of favor.  It was like a--it was a…

BF: It was an interim Vacancy Act.  Interim…

CH: Was it--right.  Interim Vacancy Act.  Right, right, right.  Exactly.

BF: Yeah.  So this confirmation power is very, very important.

CH: Soliciting a Foreign Contribution for the 2020 Presidential Campaign and Bribery.

BF: Yeah.  This was truly a stunning omission because Nancy Pelosi at one time during the investigation of the impeachment said, “We have bribery here.”  And Senator Richard Blumenthal of Connecticut laid out the case quite clearly.  But the law is not ambiguous here.  If you are a candidate for Federal Office and you solicit anything of value from a foreign government to help your campaign, that’s a crime.  Open and shut.  And we have something obvious, Mr. Trump solicited something of value from the President of Ukraine namely an investigation against perhaps his rival and his opponent in 2020 in exchange for what?  An exchange for releasing the $400,000,000,000 in official act.

CH: Right.  Violating Citizen Privacy.

BF: Yeah  This is…

CH: Both parties are.

BF: Both parties.  Privacy is out the window, Chris, without any warrants at all.  We’re spying and collecting information relating to foreign intelligence, whatever that means.  it--we don’t even know where the information is.  It is so staggering.  I talked to a close friend of mine.  You may know him, Bill Binney, he used to work at the NSA.  They have so much collected data that requires 600 reports a minute if you’re trying to even look at it, what we have.  So not only does it invade privacy, but it makes the difficulty of identifying anything useful even greater because you’ll have a needle in a haystack you’re looking for and the haystack’s growing at logarithmic speed.

CH: And Suppression of Free Speech.

BF: Yeah.  Here we have the president openly and notoriously threatening that he will take action against the media, people and being…

CH: Well, he’s suing.  He sued New York Times and Washington Post already.  And CNN.

BF: Yes.  For--CNN.  For an alleged defamation.  And plus the fact is that he is--uses the media, if you will, as a--as a vehicle, a weapon to claim that they’re unpatriotic and to exercise and perhaps this is the most dangerous.  Instead of acknowledging that with all of its flaws that organized scrutiny of government, the fourth branch, is indispensable to having checks and balances.  It’s even more important today than yesteryear because congress does no oversight anymore.  Without the press out there, it’s a free pass for the executive branch.  And instead of encouraging that--and again, I go back at one point Thomas Jefferson, if he had to choose between government and newspapers as newspapers without government, he’d rather have newspapers.  The president has done everything he can to discreet and to undermine the--what I would call the checking the surveillance power of--over government of the--of the media.

CH: Let’s just talk globally.  What does this mean?  What does it mean for a constitutional democracy such as ours?

BF: Well, I think our constitution has now been taken off of life support.  And what’s truly--I mean, just another recent example is this, the President goes after two Supreme Court Justices, Ruth Bader Ginsburg, Sotomayor saying you have to recuse yourself, you know, otherwise you need a price to pay.  And stupidly, Chuck Schumer kind of aggravates the situation by suggesting on abortion decisions of the court, doesn’t--they’ll have to pay a price if they don’t vote the way they should rather than acknowledging.  We know through civilized argument this is what we believe is a sound decision making, but the institutional integrity is very critical.  So that--what does it mean going forward?  With the Constitution off of life support, all we have is political checks on the president, and those political checks are vanishing very rapidly.  Unless we come to a Congress and members recapturing the equilibrium that the framers understood was the cornerstone of liberty.  It’s just a matter of time before we fall off the cliff.  We’re there on the installment plan.  Each president takes us further and further toward the cliff where we no longer will have liberty and a president will soon do nothing but rule by decree.  Congress will become purely ornamental and we shouldn’t have even fought the American Revolution.  We’d be like colonies under King George III, maybe even worse off.

CH: When you say off life support, you’re talking about the death of the Constitutional State?

BF: Yes, the death of the Constitutional State.  And notice this, if you look at all of the debates that the Democratic candidates for the nomination have had, the Constitution is like not even there.  These critical issues that we’ve just broached here.  And you can make an argument, they’re not even in the playbook.  Like where are you?  You have to take an oath as president to support, and defend, and uphold the Constitution.  You know, why is that there?  The English, when they overthrew James II and William and Mary came in, the Parliament said we are not going to permit you to become crowned king and queen unless you take an oath to support the English Bill of Rights.  And that’s why the oath is actually in the constitutional text itself is what the president has to do.  And none of them talk about the most important pledge that a president must make in order to enter their office.  Understand and enforce and protect the constitution of the United States.

CH: Right.  Thanks, Bruce.  That was Bruce Fein, former Senior Official in the Department of Justice and Constitutional Scholar.