Author: Dan McLaughlin, Attorney-at-Law

The U.S. Constitution gives an open-ended definition of impeachable “high Crimes and Misdemeanors” that covers a variety of abuses of official power, including conduct that is not criminal. But it also recognizes that impeachment is a political remedy, and abuse of office is the most political of all grounds for impeachment.

  1. Is it wrong to investigate political enemies of the president? No, at least not as any sort of a blanket rule. If the Justice Department and other federal investigating and prosecuting authorities could never go after political critics and foes of the current president, that would immunize vast swaths of government from the law. Investigation and prosecution of the executive’s political enemies raises the potential for abuse, but there’s no reason it is out of bounds when done properly.
  2. Is it wrong for the president to push personally for a criminal investigation of political enemies of the president? The Constitution imposes on the president, and the president alone, the duty to “take care that the laws be faithfully executed,” and leaves unsaid how the president carries that out. In short, it may not be strictly forbidden for presidents to get involved in individual, politically charged prosecutions on their watch, but it is fraught with peril. The president’s ultimate constitutional responsibility is such that if he sincerely believes an investigation is warranted and that only presidential leadership will make one happen, it is not necessarily improper for the president to demand that something be looked into.
  3. Is it wrong for the president to push personally for a national-security investigation of political enemies of the president? Not all federal investigations are criminal in nature or depend on the existence of probable cause to believe a crime has been committed. Presidents have more latitude in demanding answers to particular nation-security questions, since the objective is not to take away any citizen’s liberty but to inform national-security policy decisions- decisions that are the president’s to make. Of course, such investigations by tradition have been conducted and concluded in secret, and don’t produce the politically damaging cloud of suspicion overhanging their targets that a criminal investigation creates. Directing federal investigations as a means of digging up political dirt or inflicting harm on political opponents is a grave abuse of office. That is all the more true because of the broad latitude presidents must have in the national-security area.
  4. Is it wrong for the president to push personally for foreign cooperation in a federal investigation? No, not if there is a legitimate Justice Department investigation, and foreign cooperation in that investigation requires intervention at the level of the heads of state. In such cases, it can be proper for the president to personally ask for that in a conversation with a foreign head of state. But space on the agenda of conversations between the president and foreign heads of state is a very valuable thing; it is certainly out the norm for a particular investigation to get on that agenda, unless it is something like the investigation of a terrorist attack. Doing so with a country that is strategically important to the United States is a major use of American national power, and should be reserved for matters of national importance.
  5. Is it wrong for the president to ask a foreign government to investigate a U.S. citizen? Yes. At a minimum, it is highly unusual and very perilous territory, with little precedent in U.S. history. Great powers such as the United States have historically guarded very jealously their own right to jurisdiction over their own citizens. Anything that smacks of handing over an American to a foreign judicial system- let alone asking a famously corrupt government to look into a high-ranking American official who has senior security clearance for years- is unchartered territory no American president should enter lightly.
  6. Is it wrong for presidents to demand a qui pro quo from a foreign government? By itself, of course not. Demanding things in return for favors is how much of international diplomacy works, just as it is how much domestic politics works. But the context matters. One objection raised to holding up aid to Ukraine as leverage over the behavior of Ukraine’s newly elected president is that Congress had already authorized and appropriated that aid, and thus the president should not have any discretion over whether to release it. This is a fair point as far as it goes, and the Founding Fathers would likely have considered it an impeachable offense for a president to ultimately refuse to spend congressional appropriated funds. The reality, however, is that disputes on this point have arisen under many presidents, and no Congress have ever thought the public  would stand for impeachment over an appropriations fight, least of all after the president had released the aid. More to the point, any benefit that the president obtains with the leverage of U.S. military aid to a foreign country should involve a public benefit to the American taxpayers who paid for that aid, not solely a personal or political benefit to the president personally. Using public resources for your own sole benefit is a textbook case of misappropriation of public funds. This is not a question of subjective motive: politicians often have impure motives and many fine things have been done for the public interest by politicians who were just looking for their own political interests. The right question to ask is whether taxpayer funds were used as leverage for something the public has no legitimate interest in, and which the president did. The further along that scale we find ourselves, the more this looks like a genuine abuse of official power. And while the misappropriation is less obvious if the benefit being dangled before Ukrainian officials is not taxpayer funds but a White House visit for the Ukrainian president or a visit by the vice president to Ukraine, these remain exercises of American power, which should be used for American national purposes.
  7. Is it wrong for the president to ask a foreign head of state to cooperate with a private investigation by the president’s personal lawyer? Yes. Maybe the most improper aspect of the entire Trump-Zelensky call is Trump asking Zelensky to cooperate with a private probe being conducted by Rudy Giuliani, in his capacity as Trump’s personal lawyer. And this was not an isolated incident, as coordination with Giuliani’s investigation was apparently pressed by administration officials for months. There is no circumstance in which this is acceptable. Sending Giuliani to Europe to gather information on his own is one thing; both parties went digging overseas for campaign dirt in 2016. The problem with that is not the act of investigating, it’s what you may owe foreigners for the information. This goes a step further: using the office of the presidency to pressure a vulnerable foreign leader to help out in a purely private, political venture of the president’s. Even leaving aside the Byzantine world of campaign-finance regulations and its oft-dubious constitutionality, this in practical effect is like asking a foreign head of state to contribute to Trump’s reelection campaign.

Areas of potential legal liability

  1. Bribery: Offering one thing in exchange for another, and doing so for one's own personal  benefit and not the country's.
  2. Extorsion by officers and employees of the United States: " Whosoever, being an officer, or employee of the United States or any department or agency thereof, or representing himself to be or assuming to act as such, under color or pretense of office or employment commits or attempts an act of extorsion, shall be fined or ilmprisoned not more than three years, or both." Extorsion is defined as "the extraction of anything of value from another person by threatening or placing that person in fear of injury to any person or kidnapping of any person."
  3. Illegally soliciting campaign help from a foreign government: Soliciting material campaign aid from a foreign government, expressly violates Federal Election Campaign Act of 1971. Solicitation uncludes not only a contribution or donation of money but also any other thing of value,including opposition research.
  4. Coercion of political activity: Using government agencies and employees as part of one's campaign to pressure a foreign country to interfere in U.S. election. The law prohibits any indivuidual from forcing an employee of the federal government to engage in political activity, including by "working or refusing to work on behalf of any candidate. Current officeholders, such as the president of the United States, are also considered candidates when acting to advance their reelection. It is unlawful for any person to intimidate, threaten, command, or coerce, or attempt to intimidate, threaten, command or coerce, any employee of the Federal Government to engage in any political activity.
  5. Honest services fraud: The law prohibits fraud offenses that include a scheme or artifice to deprive another of the intangible right of honest services. This crime has parallels to bribery and extortion. The fraudulent denial of honest services occurs when a public official performs an "official act" in exchange for personal gain and, in the process, defrauds their constituents of honest services to make decisions and take actions that are in the public's best interests.
  6. Misappropriation of funds: When government funds are used for one's own gain, then there is a very strong argument that there is a theft of taxpayer money, or misappropriation, taking place. 
  7. Obstruction of justice: Refusing to comply with lawful subpoenas or participate in the investigation in any way. Refusal of witness to testify or produce papers. Obstruction of justice is a serious crime defined in federal statutes in various ways, including as the corrupt interference with "the due and proper administration of the law" or the "due administration of justice". The statutes governing federal obstruction of justice identify more than 20 types of instruction crimes, including obstruction of oversight investigations before any committee of Congress. 
  8. Witness tampering: Threats against the government officials who spoke to the whistleblower, and seeking to discover the whistleblower's identity. The law prohibits any individual from knowingly using intimidation, threats or corrupt means to induce another person to withhold or destroy information or evade a legal process. Federal law provides protection for whistleblowers reporting instances of wrongdoing within the U.S. government. The Whistleblower Protection Act of 1989 provides general protections for federal employees and contractors, and the Intelligence Community Whistleblower Protection Act of 1988 outlines a special process for those in the intelligence community to provide information to Congress and be protected from retaliation or threats of reprisal.
  9. When a government official, in connection with any activity which is financed in whole or in part by loans or grants made by the United States, or any department or agency thereof , uses his official authority for the purpose of interfering with, or affecting, the nomination or the election of any candidate for the office of President.
  10. Place of solicitation, Contributions and donations by foreign nationals: It is unlawful for an individual who is an officer or employee of the Federal Government, including the President to solicit or receive a donation of money or other thing of value in connection with a Federal, State, or local election, while in any room or building occupied in the discharge of official duties by an officer or employee of the United States, from any person.
  11. Criminal conspiracy: When tow or three people act together to commit any offense against the United States, federal law defines that action as conspiracy.


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