By LAURENCE H. TRIBE, The Boston Globe, 17th May 2017
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| ¡REVOCATORIO YA! |
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.
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.
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.
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