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Trump’s Been Impeached. Now What?

Erwin Chemerinsky on Trump’s impeachment and the menace of unchecked presidential power.




Donald Trump
Photo: Gage Skidmore

University of California, Berkeley, Law School Dean Erwin Chemerinsky is one of the legal scholars who called for Donald Trump’s impeachment long before any talk of a quid pro quo with Ukraine. Chemerinsky, a leading constitutional expert, has argued that for Trump’s entire term he has been violating the Emoluments Clauses, which bar the president from receiving any form of payment from a foreign government, and also from receiving any payments beyond the salary of the chief executive. Capital & Main spoke to Chemerinsky shortly after the House voted to impeach Trump on two counts, one for abuse of power and a second for obstruction of Congress, making him only the third president ever to be impeached.

Capital & Main: What went through your head yesterday while watching the impeachment vote?

Erwin Chemerinsky: Sadness. Sadness, that we have a president who so abused his power, sadness that the president absolutely refused to cooperate with Congress and its investigation. Sadness, that it really came to the point that the Democrats had no alternative. Sadness, that not a single Republican was willing to vote for impeachment. That it’s such a deeply polarized time.

Do you feel, as some who support the impeachment have said, that the Democrats should have tried harder to compel witnesses like former Trump National Security Advisor John Bolton and Secretary of State Mike Pompeo to testify? Or allowed more time to try and obtain key documents?

I don’t agree with that sentiment. There’s no factual dispute about what happened. This is different from the Nixon impeachment, [where] there was always the questions, What did the president know? When did the president know it? But here there’s no doubt what President Trump did. His own chief of staff, Mick Mulvaney, said [of military aid to Ukraine], “This was a quid pro quo—Get over it.” The witnesses who testified for the House committees made clear that it was a quid pro quo. That’s a high crime and misdemeanor. Was the president’s failure to comply with subpoenas, ordering his staff to not testify, or release documents, a basis for finding high crimes and misdemeanors? I don’t think additional witnesses would’ve made any difference. The question is, does it rise to the level of an impeachable offense?

Would you have added any additional articles of impeachment had you been advising the Democrats?

I’ve gone back and forth on that question. There’s certainly a basis for other articles of impeachment. President Trump has been blatantly violating the Emoluments Clauses of the Constitution since January 20, 2017. President Trump engaged in obstruction of justice with regard to the Mueller investigation. But I did see an advantage to keeping this focused on what President Trump did with regard to the Ukraine. President Trump obstructed Congress’ ability to investigate him.

What do you think about the potential strategy of House Speaker Nancy Pelosi and the House Democrats withholding the articles of impeachment as leverage to secure a commitment for a fair trial in the Senate?

Everyone knows that there aren’t the votes in the Senate to remove Donald Trump from office. It takes two thirds. That means at this stage it’s all about the political appearances and the Democrats getting their message across, the Republicans getting their message across. I don’t think that Nancy Pelosi has much leverage in terms of what the Senate is going to do. There’s no pretense that it’s going to be an impartial jury. There’s no pretense that the Republicans haven’t already made up their minds. [Senators Mitch] McConnell, [Lindsey] Graham, others, have conveyed that. So I think that there’s going to be a Senate trial likely in January and it’s going to end in President Trump remaining in office at least through January 20, 2021.

What will be the consequence for presidential power if Trump is acquitted?

I fear that the message to future presidents is, if you’re subjected to congressional investigation just stonewall, don’t comply with subpoenas. So long as your party sticks with you, there’ll be no consequences. So long as your party sticks with you, you don’t need to worry about impeachment. To me, this then says that we’ve tremendously increased the powers of the president. We’ve lessened checks and balances, and we’ve undermined the rule of law.

Aside from politics, why should the average American care about the outcome of the impeachment of Donald Trump?

The core of the rule of law is that no one, not even the president, is above the law. What this is about is whether the president of the United States is above the law. What Donald Trump did was an abuse of power. What Donald Trump did in refusing to cooperate with Congress was unprecedented. And the question is, will he get away with it?

Given the current perversion of the democratic process in which voters are inundated with misinformation and outright lies, do you think it’s time to rethink the fundamental maxim that robust, uninhibited political speech is deserving of the highest First Amendment protection?

No, we shouldn’t rethink it because the alternative to that maxim is to allow those who are empowered to decide what we should hear and what we can’t hear. And [with] Donald Trump as the one in power, I shouldn’t want him to decide what messages are true and which aren’t.

Copyright Capital & Main

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