Writing for the legal blog Just Security on Monday, Weissmann made the introductory case for federal crimes likely committed by Trump as evidenced by the ongoing House of Representatives impeachment process.
The introduction begins by noting that a presidential impeachment doesn’t necessarily need to rely on violations of specific federal crimes. This is a truism, Weissmann notes, but “really beside the point,” because the House’s Ukraine-focused investigaiton allegedly uncovered substantial evidence for multiple federal violations.
“The President’s alleged criminal acts were undertaken in a context that makes them particularly subject to impeachment,” he writes. “The President’s alleged crimes involve his using — and abusing — his Presidential powers, in contrast to, say, the offenses for which President Bill Clinton was impeached. And the alleged offenses were committed by the President at a time that he was acutely aware of the illegality of seeking foreign assistance in an election.”
Per the blog, those crimes are: (1) violations of campaign finance law; (2) bribery; (3) honest services fraud; (4) violations of the Hatch Act; and (5) contempt of Congress.
Adhering to legal and legalistic theories of culpability and standards of proof, Weissmann makes pains to assess whether or not the evidence collected by congressional investigations would be sufficient for the government to make a federal criminal case against the 45th president with a view toward eventual conviction by a jury.
Assuming for conviction purposes in the Senate that the standard to be applied would be “beyond a reasonable doubt”—or “something a little less than the ‘beyond reasonable doubt’ standard” as Charles Black put it—the question arises whether the current proof adduced in the House meets that high threshold. The proof to date makes plain in our gut what happened, and if we were in a civil case where a mere preponderance of the evidence is needed, the issue would be beyond cavil. But does the current proof rise to the “beyond a reasonable doubt” standard?
The answer to Weissmann, at first glance, may seem complicated due to the lack of documentary evidence–and the House’s unwillingness to force the release of myriad documents–and because of Ambassador to the EU Gordon Sondland‘s various versions of the truth.
“At a criminal trial, the Sondland testimony would be seriously attacked,” he notes. “Indeed, the Senate has to acknowledge that, in all likelihood, Sondland lied in his deposition, lied again in his supplemental declaration, and lied a third time in his public congressional testimony. Even now he clings to the idea that he did not understand that an investigation into Burisma meant the Bidens.”
Usually the failure to produce documents and first-hand or reliable witnesses would be something akin to a fatal flaw in the prosecution’s case. But, Weissmann concludes, the “unusual circumstances” render those typical defenses largely irrelevant.
The reason? Trump’s dedication to secrecy above all else:
[T]he President is his own worst enemy. He has sought to proceed with a sledge-hammer, not a scalpel. He has stated publicly and repeatedly that he is not cooperating with a duly approved impeachment proceeding. That some subset of his legal claims may have merit or meet the lower “good faith” standard, is thus complicated by the fact that the President has determined to flout all legal process no matter what. The President’s parallel position in connection with the Manhattan D.A.’s grand jury subpoena — where he has claimed immunity for himself, his family, and his companies from being criminally investigated while he is in office, even for conduct pre-dating his presidency — can be relied on to assess his intent and goals.
Weissmann’s argument is a permutation of the longstanding American aphorism about the primacy of coverup over the crime. Here, he’s effectively saying that the House and Senate don’t even need evidence of the coverup to accurately assess whether Trump is a crook. The 45th president’s actions thus far, Weissmann says, are evidence enough of his intent and ultimate goals.
“That situation does make the assertion of privilege one that is so frivolous that it must excuse Congress from being drawn into the rabbit hole of litigating, for months, the enforcement of its subpoenas,” he continues. “And if this were a criminal case, a missing witness charge would not be warranted against the government, for deciding not to delay seeking justice in a matter of pressing concern, namely avoiding further secret tampering with the 2020 election by the President. Indeed, the opposite inference seems more appropriate.”
And, in the end, the evidence itself will likely vindicate this theory.
“This is Washington, after all, where even highly classified matters have eventually seen the light of day,” Weissmann notes. “And we need not rely on leaks for such belated revelations. The documents from the State Department, the OMB, Giuliani’s phone, and the like could be the subject of criminal federal grand jury subpoenas — to be issued or in fact already issued.”
The small compendium of legal essays also contains two additional allegations: one of which is not technically a crime but allegedly violates federal law nonetheless; the other is a federal crime not entirely supported by the House’s findings but where “evidence has arisen in investigative reports by journalists,” according to the blog’s editor-in-chief Ryan Goodman.
[image via MANDEL NGAN/AFP/Getty Images]