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Crimes and impeachable offenses: Preet Bharara lays out distinctions

“It’s a political process,” Bharara said. “The terms are vague. If a majority of the House say he’s impeached, he’s impeached. If two-thirds of the Senate say he’s convicted and removed, he’s removed.”

Preet Bharara
Preet Bharara: "There are things that the president has the power to do that would be eminently impeachable."
REUTERS/Mike Segar

Of course, I think about impeachment a lot these days, from many perspectives. There’s a historical approach, a legalistic approach, a political approach and more. When I was offered a chance to interview Preet Bharara I wanted ask him about the approach of an experienced prosecutor as well a news analyst, who has become a regular talking head on the shows, and who was looking to promote his upcoming Minneapolis appearance.

So let’s get the promotion out of the way. Bharara now produces a weekly podcast called “Stay Tuned with Preet,” featuring interviews with famous guests. He’ll be taping one of those on stage at the Pantages Theatre on Nov. 5 with Minneapolis Mayor Jacob Frey as his guest. (Frey, you may recall, tried to get Donald Trump to pay for the city’s extra security costs needed for Trump’s recent Minneapolis rally, which did wonders for the following of Frey’s Twitter account.)

I don’t know what Bharara and Frey will talk about, but I wanted to get Bharara’s perspective as a former Capitol Hill staffer who worked on congressional investigations and a former federal prosecutor in New York who made his name prosecuting political corruption and Wall Street crime, on the developing charges of corruption against a certain incumbent president of the United States.

Impeachment ‘more a political than a legal event’

Differentiating those criminal investigations from an impeachment investigation, Bharara said the latter is “more a political than a legal event,” even though it revolves around the famous constitutional phrase “high crimes and misdemeanors.” He said:

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“There are things that a prosecutor might deem to be criminal that might be too trivial to rise to a high crime or misdemeanor. And there are things that might not be criminal, in the technical criminal sense, that members of Congress may view as abuses of power sufficient to invoke impeachment.”

As Bharara noted, Trump and his defenders “will often say, in terms of what Trump does, that the president has the constitutional power to do these things. For example, the power to fire (FBI Director) Jim Comey. Yes, he has that power. But there are things that the president has the power to do that would be eminently impeachable.

“For example, the president has the authority and power to fire everyone who has been politically appointed who has an IQ over 75. It’s true. He breaks no law by firing everyone above that intellectual threshold. Likewise, I don’t believe he would violate any law if, tomorrow, he ordered the invasion of Canada. Or a nuclear strike on London.

“The law allows the president tremendous authority to make certain decisions, including with respect to war, and with respect to personnel. So yes, you can imagine lots of things that scholars would say are technically within the president’s power to do, but are things that members of Congress and their constituents would find so beyond the pale and so outside the bounds of normalcy, and such dramatic abuses of power that they would invoke the impeachment authority.”

The charge of ‘obstruction’

Bharara noted that in the Nixon impeachment process, the impeachable offenses alleged included various acts of “obstruction,” for example, that aren’t in the criminal code but that can become impeachable offenses if a president commits them in order to prevent Congress from finding out what he has been doing.

“I don’t know whether what Trump has done constitutes ‘obstruction’ as a strict criminal matter,” Bharara said. “In a criminal prosecution, you think of criminal obstruction as destroying documents or hiding documents or coaching witnesses or something like that. As opposed to, ‘We’re gonna fight everything, and not comply with the process.’ I don’t know if all the court fights over that have been completed. But I think it’s an abuse of power … [and actions like that] even if they might not rise to the level of the crime of obstruction can still be obstruction for purposes of impeachment.”

“At the end of the day, those terms [high crimes and misdemeanors] mean what a majority of the House thinks they mean and what two-thirds of the Senate thinks it means. I think of it very much in terms of abuse of power.

“If a sufficient number of members of Congress decide that some action by the president arises to that level, then the impeachment power applies,” even if it doesn’t violate a criminal statute that applies to non-presidents, he said.

“It seems that the president’s lawyers are taking the opposite position — because it’s useful to them – or would be if they were right, but they’re not. I keep seeing [Trump personal lawyer and media personality] Jay Sekulow and others go on television and say, ‘Identify the crime that has been committed.’

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‘The terms are vague’

“But that is not the standard. It’s a political process. The terms are vague. If a majority of the House say he’s impeached, he’s impeached. If two-thirds of the Senate say he’s convicted and removed, he’s removed.

“But it is certainly my view, for example, that in the matter of Ukraine, it is totally reasonable, if the president of the United States asks a foreign power to investigate a political rival like Joe Biden, that that, on its face, is impeachable and you can remove him for that alone. It is an abuse of power, and reasonable members of Congress can vote on that basis,” said Bharara.

“But of course it’s also true that, if some action can be proven to actually be a crime, the path to impeachment becomes that much easier and more authoritative if you can prove as a matter of law there was a quid pro quo, and there was an exchange of things of value to get the government of Ukraine to do that — releasing foreign aid, for example, to get something of value to you, such that it would violate campaign finance laws, then yes, the case for impeachment and removal strengthens considerably.

“But it certainly helps if you can point to something and say: ‘You know what folks. This is a straight-ahead crime. This conduct actually violates the law and ordinary people would be charged.’ That would certainly help bring public sentiment along.”

If it seems unfair that a president can be “convicted” of something that isn’t a specific crime, Bharara suggests you recall that an impeached president doesn’t get sentenced to prison. “We can’t send someone to jail without showing a crime. But the consequence of this is that the president just gets fired. There are lots of circumstances where a person who has a position of public trust betrays that trust, and they don’t go to jail. They just get fired.”

The political clock

I asked Bharara about the argument that the choice of a president should be up to the electorate and, especially since we are only a year away from the next election, impeaching and removing Trump would remove the question of his fitness for office from the place where it should be decided. He replied:

“In traditional prosecutorial thinking, such as I was involved in as a U.S. attorney, you want to be aware of the political clock. You don’t want to be interfering in an election. You don’t want to be substituting prosecutorial action for democratic action. That’s a good and deeply held principle.

“But that logic is less applicable when you’re talking about Congress holding the president accountable through a process that is explicitly provided for in the Constitution, as opposed to ordinary criminal process. That’s a different question. I don’t think the timing matters as much.

Impeachment history also doesn’t support the argument, Bharara said. Twice in U.S. history the House has impeached a president: The Bill Clinton case and the Andrew Johnson case. “And one of them, he said, “the impeachment of Andrew Johnson, occurred in 1868, which was an election year. So 50 percent of the cases occurred in an election year.”

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Bharara took one more shot at the “let the voters decide” argument, which almost turned it on its head. Those saying ‘let the voters decide’ ignore the fact that the impeachment inquiry, which is not the same thing as a vote to impeach and remove Trump, is bringing to light a great deal of information – revelations that have filled the news in recent days with evidence of possible corruption by Trump in pressuring Ukraine to manufacture dirt beneficial to Trump politically, for example. That’s information that voters have every right to know about him, but wouldn’t know without the impeachment inquiry.”

Some elements of the case against Trump were known before the official opening of the House impeachment inquiry and, in fact, caused that inquiry to begin, Bharara said, “but all this other stuff — the testimony of the former ambassador to Ukraine, the acting ambassador, the ambassador to the European Union, that’s valuable, important information that the public needs to know. It’s important for the purpose of deciding whether the investigation needs to be continued, and also for the purpose of informing the public as to the fitness of this president for office when they get a chance to at the ballot box.

“So, at some point, although this isn’t discussed in the Constitution itself, if you try block an inquiry and an investigation, without which the people wouldn’t get important information that they should have in advance of an election, and justify it by saying there’s an election coming let the people decide, I don’t think makes much sense.”

The website of the “Stay Tuned with Preet” podcast is here.