by Laurence H. Tribe · May 17, 2017
All Spider-Man fans will recognize the line, “With great power comes great responsibility.” We need to act now on that maxim’s converse: When great power is placed in the hands of one who cannot be trusted to act responsibly, we must take that power back.
That means starting now to trim President Trump’s power to do irreparable harm to the nation and, ultimately, the world. That’s why I’ve previously raised 25th Amendment questions about Trump’s ability to “discharge the powers and duties of his office” and have recently called for immediate initiation of impeachment investigations — akin to convening a grand jury to consider returning a criminal indictment.
This call may be politically unrealistic; and it wouldn’t advance my progressive agenda. Vice President Mike Pence is no picnic. Nor is House Speaker Paul Ryan. But there’s no time to lose. While the deputy attorney general appointed former FBI director Robert Mueller as independent counsel on Wednesday to pursue possible criminal prosecutions and Congress’s intelligence committees dig deeper into who did what with whom to tilt the 2016 election toward Trump, the House needs to start digging now into the Trump administration’s abuses of power and Trump’s blatant violations of his oath faithfully to execute the office of president.
That digging, which might or might not result in impeachment articles and a Senate trial of Trump (and possibly a Senate trial of Attorney General Jeff Sessions as well), cannot wait for the possible passage of legislation (which Trump would veto anyway) to create either a special blue ribbon 9/11-style commission or a commission to inquire into Trump’s mental ability to govern constitutionally. The situation calls for urgent action on multiple fronts, not more delay.
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Clear proof of urgency came with Trump’s boastful sharing of highly classified intelligence provided to us by Israel — about a new ISIS strategy for using laptops to blow up civilian airliners, no less — not with our allies but with the Russian ambassador and foreign minister. That urgency was underscored by what had happened just the day before, when Trump suddenly sacked FBI Director James Comey for refusing to pledge that the FBI wouldn’t target Trump himself in its recently accelerated investigation into apparent collusion between Trump’s campaign and Russia. And the urgency escalated exponentially with the revelation that former director Comey, whose honesty no one has ever questioned, kept contemporary memos of every Trump intervention in the FBI’s investigation of possible collusion between his presidential campaign and Russia.
As Russia allegations mount, is this the final straw for the GOP?
Repeating his now characteristic pattern, Trump first fanned out his troops (this time including the national security adviser) to release fake news. He then blurted and tweeted something closer to the truth but said not to worry: Just as he had claimed unfettered authority to decide whether to keep or replace Comey as the leader of the investigation into his campaign, he insisted that he had an “absolute right” as POTUS to decide what top secret information to share with whom for whatever reasons he wished.
It seems increasingly likely that the many parallel ways Trump, his family, and his White House team kiss up to Putin — whose request for Trump to entertain the ambassador, so often found at the center of Trump confidantes’ intrigues, Trump told an interviewer he of course had to grant — will ultimately be explained by the Russian trail of money and its laundering that is finally getting closer attention. But whether that’s the tip of a grossly unconstitutional iceberg or just the strangest bunch of coincidences ever, we need to get to the bottom of the money pit through investigations beyond the reach of Trump’s machinations.
In the meantime the House has a duty to start digging right now into Trump’s seemingly impeachable offenses before any more potentially irreparable harm is done to our national security. Just to name those offenses, they could even include treason — both in acquiring the presidency through what may have been collusion with our adversaries, and in using that office to give those adversaries aid and comfort in return, as well as grow the family fortune at America’s expense.
Those offenses also include what looks every bit like quid pro quo bribery — in offering favorable treatment to Russia (and other governments that aren’t our friends) in return for something Russia might do for him, and in offering a favor to the FBI director, whom Trump described as essentially a job-seeker, in return for assurance that the FBI investigation of Russiagate would exclude Trump himself. Nor is looking into these matters with an eye toward impeachment and possible removal from office optional: Article II Section 4 of the Constitution says the “President [and] Vice President . . . shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” That’s “shall,” not “may.”
Despite that mandate, tradition has made the whole notion of impeachment so radioactive, and the instances of its abuse as a political tool against presidents of the opposing party so distasteful, that the reluctance to invoke it is now palpable. But, given the even greater difficulty of using the 25th Amendment to remove a president who is clueless about constitutional limits and delusional about his duties, we need to get over the allergy to the basic concept of removal through impeachment and stop thinking of it, inaccurately, as retribution for sinister intent.
Trump’s invariable reply to claims of alleged abuse echoes Nixon’s infamous remark: “If the president does it, it’s legal.” That was Trump’s answer to challenges to the travel ban directed at Muslims (in places where Trump doesn’t have business interests, not the places that have sent terrorists to kill Americans); to his many financial entanglements in evident violation of the foreign and domestic emoluments clauses; to his sudden discharge of Comey; and, most recently, to his decision to share with our Russian adversaries information too sensitive to share even with our allies. To each allegation of abuse, Trump’s childlike answer is: I’m the president, so I can do no wrong.
We fought a revolution against George III to escape that sort of absolute power, whether grounded in corrupt motives or growing out of incapacity. We fought World War II against such claims of boundless authority. Although we have at times tolerated and even propped up dictators for what they could do for our country, this is the first time in American history that we’ve been led by someone who admires those strongmen and sidles up to them for what they can do or have done not for their country but for themselves, by raping and pillaging their nations and their people as needed. These episodes have this in common: They treat the power with which we have entrusted Trump as a plaything to use as he pleases, not to maintain and guard America’s greatness as he took a solemn oath to do; not to “preserve, protect and defend the Constitution of the United States” but to satisfy his immature ego, his endless need to boast, and his insatiable greed.
So it is time to act — and our constitutional system gives us the tools with which to begin.
Laurence H. Tribe is the Carl M. Loeb University Professor and professor of constitutional law at Harvard Law School. He is the citizen attorney general in the Shadow Government, @ShadowingTrump. Follow him on Twitter@tribelaw.