RON FEIN: I think there is a real danger of the system breaking down. One of the things that I researched when we were writing our book about impeachment, “The Constitution Demands It,” is the impeachment proceedings against Richard Nixon. The last time that we had a serious impeachment process and one that resulted in President Nixon ultimately resigning after articles of impeachment were approved in the House Judiciary Committee. And one of the articles of impeachment against him was for his blatant defiance of congressional subpoenas for documents that were needed as part of the impeachment investigation. So a lot of people know about Watergate. That was one article of impeachment. And there was a second article of impeachment that was for other abuses of power that in some cases had nothing to do with Watergate. And the third was for this defiance of congressional oversight. So in other words, that alone is a basis for impeachment.
Even when you take everything else out, that defiance of subpoenas, we have the precedent from the Nixon impeachment proceedings. And I think we’re clearly headed in that direction with President Trump. That even when you set everything else aside, if he is really serious about what he said about fighting all of the subpoenas just on a blanket level, using every possible means available to him, including his actually suing, Rep. (Elijah) Cummings and his committee for attempting to subpoena financial records. If President Trump is going down this path, then that’s going to become an entirely independent ground for impeachment.
BETWEEN THE LINES: But when we talk about the likelihood that our system is failing now in relation to checks and balances, what is the cure for that? Do we only rely on courts to settle the score here and to come up with a fair resolution. Or are there no means to hold this president accountable?
RON FEIN: I think Congress has in recent years, and certainly since the inauguration of President Trump relied too much on courts and not enough on its own power. When the framers were creating the constitutional design, they created three branches, each able to check the others. And they didn’t say that Congress needs to run to the judiciary every time they have a serious dispute with the president. Rather, Congress has power to check the president on its own if they use it. So they have tools that they are not fully using, including of course the full power of impeachment and removal. But I think they’re a little hesitant and they’re waiting to get a blessing or an indication from a judge or set of judges that they can point to so that they don’t necessarily have to own the decision themselves.
And, a great example of that is the president’s violation of the Constitution’s emoluments clauses. These are clauses in the Constitution that prohibit the president from taking funds from foreign governments or even from the federal state governments. And in the case of foreign governments, it’s a complete prohibition unless Congress specifically consents to a particular emolument from a foreign government. But Congress has not taken direct action on it. Instead, some members of Congress have filed the lawsuit, which is proceeding well in court, but it means that they’ve basically outsourced their power to deal with it directly. For example, by impeachment, to a court waiting for a judge to say that it’s wrong. And in fact, the trial judge has said that, but by the time it gets all the way through you know, potential appeals and to the Supreme Court, a lot of time will have passed. And it’s just indicative of how Congress could be taking much more direct action for checks and balances instead of relying on the courts to do its work for it.
BETWEEN THE LINES: Ron, if impeachment is not carried out against President Trump, what are the short-term and long-term consequences for our government, our system of checks and balances? And the behavior of future presidents.
RON FEIN: Well, in the short term, Donald Trump will read that message as you know, Congress is nothing. And, I think from the fact that Congress did nothing against the emoluments violations when he came into office, he concluded that he could get away with virtually anything. And so far he is. He’s faced no accountability. So I think he will see that as weakness and exploit it. And he will become increasingly authoritarian now that he knows that he is not going to face any consequences.
In the long term, future presidents will take the same lesson that they can get away with more than – certainly more than Richard Nixon got away with – and that they won’t face consequences as long as they can rally a small base to defend them. A future presidents might be more disciplined and focused than President Trump. And, will be not only as authoritarian in impulse, but also more focused in executing those plans. And I think we will really see autocracy on the rise in America if the House does not take a stand and start an impeachment investigation against President Trump.