HuffPost: Trump’s Mental Incapacity Is No Defense To Impeachment

In a recent op-ed in the Huffington post, Ron Fein, Free Speech For People Legal Director and co-author of The Constitution Demands It, discusses Trump’s capacity to serve and the “Trump Defense.”

Citing Bob Woodward’s new book and numerous claims from Trump’s staff and lawmakers, Fein discusses the possibility of Trump’s incapacity to serve as president. But focusing on his mental state as grounds for removal from office may have an unexpected, negative consequence:

“We have never tested whether incapacity alone is grounds for impeachment. And under the over-criminalized view of impeachment promoted by congressional leaders of both parties, Congress’ impeachment power takes a back seat to a prosecutor’s decision of whether to charge Trump with a crime. But that might create an even more perverse consequence, in which Trump’s incapacity could be used as an argument against impeachment.

Call it the Trump Defense. Trump’s lawyers may argue that he is incapable of forming the necessary state of mind (mens rea) to commit impeachable crimes such as obstruction of justice or conspiracy to violate election law.”

While Fein acknowledges that a jury may not buy the “Trump Defense,” he goes on to emphasize that it should not be relevant at all:

“The lesson is that impeachment does not require a criminal mental state because impeachment is not about crime or punishment ― it is about protecting the country.

The Trump Defense’s logic is ridiculous: The president’s mental incapacity means no criminal charges, and no criminal charges mean no impeachment. Yet by abdicating its constitutional responsibility of impeachment, Congress leaves the door open to this absurd gotcha.

The solution is simple: Congress needs to stop confusing impeachment with criminal prosecution — and stop using Mueller as an excuse to avoid its constitutional duty to conduct its own impeachment investigation. The framers of the Constitution entrusted the impeachment power not to a prosecutor but to Congress. And allowing Trump continued access to power as he spirals further into madness might be, as Madison prophesied, fatal to the republic.”

As Ron Fein asserts, Congress must begin its own impeachment investigation of President Trump now. We do not need to wait for Mueller’s criminal investigation, nor do we need to focus on Trump’s mental state. We have all the evidence we need to begin an investigation and Congress must act.


John Bonifaz on Rising Up With Sonali: Call for Kavanaugh’s Impeachment

On September 11, 2018, John Bonifaz, Co-Founder and President of Free Speech For People spoke with Sonali Kolhatkar on her program, Rising Up with Sonali, regarding our recent call for an impeachment investigation of Judge Brett Kavanaugh.

Watch the discussion below and sign our petition calling on Congress to launch an impeachment investigation of Judge Brett Kavanaugh.


BREAKING: New Campaign for Impeachment of Judge Brett Kavanaugh

Evidence has emerged that Judge Brett Kavanaugh lied repeatedly under oath to the US Senate Judiciary Committee in his 2004 and 2006 confirmation hearings to serve on the US Court of Appeals for the DC Circuit and in his 2018 confirmation hearings to serve on the US Supreme Court. Kavanaugh should face impeachment proceedings for committing perjury before the US Senate Judiciary Committee.

As Lisa Graves, who served as chief counsel for nominations for the Democratic minority of the Senate Judiciary Committee during George W. Bush’s time as president, has written:

Newly released emails show that while he was working to move through President George W. Bush’s judicial nominees in the early 2000s, Kavanaugh received confidential memos, letters, and talking points of Democratic staffers stolen by GOP Senate aide Manuel Miranda. That includes research and talking points Miranda stole from the Senate server after I had written them for the Senate Judiciary Committee as the chief counsel for nominations for the minority.

Receiving those memos and letters alone is not an impeachable offense.

No, Kavanaugh should be removed because he was repeatedly asked under oath as part of his 2004 and 2006 confirmation hearings for his position on the U.S. Court of Appeals for the D.C. Circuit about whether he had received such information from Miranda, and each time he falsely denied it.

At the end of Kavanaugh’s confirmation hearings for the US Supreme Court, Senator Diane Feinstein of California, the Ranking Member of the Senate Judiciary Committee, wrote: “Brett Kavanaugh used materials stolen from Democratic senators to advance President Bush’s judicial nominees. He was asked about this in 2004, 2006 and this week. His answers were not true.”

Federal judges, including US Supreme Court Justices, can be impeached and removed from the judiciary for committing perjury. Federal Judge Thomas Porteous was impeached by the US House and convicted (90-6) by the US Senate in 2010 on grounds which included that he “knowingly made material false statements about his past to … the United States Senate … in order to obtain the office of United States District Court Judge.” The Senate subsequently voted to disqualify him from ever holding federal office again.

The Framers of the US Constitution understood that corruption in the process of obtaining a federal office is an impeachable offense. In the constitutional debates over the impeachment power, George Mason asked rhetorically: “Shall the man who has practised corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?” Judge Kavanaugh’s perjury in the process of obtaining his current position on the US Court of Appeals for the DC Circuit, should, as with Judge Porteous, lead to his removal from the federal judiciary and should disqualify him from ever holding a future federal office.

Click here to sign our petition calling on Congress to launch an impeachment investigation of Judge Brett Kavanaugh!


Ron Fein on the Washington State #Indivisible Podcast

On August 30, Ron Fein, Free Speech For People Legal Director and co-author of The Constitution Demands It, sat down with The Washington State #Indivisible Podcast to discuss the book and impeachment proceedings against President Trump.

From podcast host, Stephan Cox, “In our wide-ranging discussion, we talk about what the framers intended with impeachment, and about how, while each of Drumpf’s [sic] transgressions may not precisely rise to the level of criminal infractions, they add up to a tyrannical abuse of power that the Founding Fathers very much warned us against.”

Listen to the podcast below and visit the #Indivisible Podcast site for more content.


Dissolve Trump’s Company

Free Speech For People announced today that it delivered a letter to New York State Attorney General Barbara D. Underwood on August 24, 2018, calling for an investigation into whether to revoke the corporate charter of the Trump Organization under a New York law that authorizes her to dissolve a corporation for persistently illegal conduct or abuse of its powers contrary to the public policy of the state. These alleged activities, detailed in the letter and in previous correspondence, include money laundering, tax evasion, fraud, facilitating unconstitutional foreign government payments (emoluments) to the president, helping Iran’s Revolutionary Guard evade international sanctions, and concealing a political slush fund by invoicing bogus “legal services.”

The letter sets forth new charges drawn from the federal criminal charges against Michael Cohen, an executive vice president of the Trump Organization, Inc. until 2017, who pleaded guilty on August 21, 2018.  The prosecution’s filing (called a criminal information) details how the Trump Organization conspired with Cohen to violate federal campaign finance law and evade regulatory scrutiny through a fraudulent scheme of concealing “hush money” payments and campaign expenses.

“Cohen’s guilty plea is just the latest evidence piled on top of a mountain of alleged violations by the Trump Organization,” said Ron Fein, Legal Director for Free Speech For People. “The New York attorney general should use her legal authority to file a lawsuit to dissolve the company and revoke its corporate charter.”

“Never in our nation’s history, until now, has a business corporation been effectively merged with the presidency of the United States to enable the president and his family to use the presidency to enrich themselves.  We now know from the sworn statements and guilty plea of Michael Cohen that Donald Trump also used the Trump Organization to carry out and conceal campaign finance violations to help him win the election.  The use of the Trump Organization to facilitate this criminality and corruption is contrary to New York law and it is incumbent on the Attorney General to investigate and take appropriate action,” said Ben Clements, Free Speech For People Board Chair, partner in the Boston law firm of Clements & Pineault, former federal prosecutor, and former Chief Legal Counsel to Massachusetts Governor Deval Patrick.

“The integrity of our democracy and public institutions are at risk,” said Jonathan Abady, co-counsel on Free Speech For People’s letters issued today and a founding partner of Emery Celli Brinckerhoff & Abady. “The overwhelming evidence of criminal conduct involving the Trump Organization demands an immediate and thorough investigation by the New York attorney general.”

“The New York Business Corporation Law is quite clear,” said Jennifer Taub, Professor of Law at Vermont Law School, Board Member of Free Speech For People, and co-counsel on the letter to the New York attorney general.  “The attorney general can dissolve any New York corporation that conducts its business in a persistently fraudulent or illegal manner. We now have a guilty plea by former Trump Organization, Inc. Vice President, Michael Cohen, implicating the corporation in a criminal conspiracy to violate federal campaign laws. This is just the latest in a long list of allegations of illegality by the Trump Organization. A corporate charter is a right, not a privilege. It’s time to explore dissolution.” 

“New York gives its Attorney General special powers for special cases of rampant fraud. Those powers go back centuries in England, but they are especially appropriate for this case. We have more and more evidence that the Trump Organization is built on a foundation of fraud. The question is just how far that fraud goes, and we need the New York Attorney General to help the public find out through civil investigation,” said Jed Shugerman, Professor of Law at Fordham University School of Law and co-counsel on the letter.

Free Speech For People had sent three previous letters to Eric Schneiderman, the former Attorney General of New York, detailing the long history of alleged illegal conduct by the Trump Organization, both before and after President Trump’s inauguration. This new letter provides yet more fuel for that investigation. (As a New York state court held in a previous case, violations of federal law can be grounds for corporate charter revocation because “[f]ederal law is as much a law of [New York] State as any specific law enacted by the State Legislature.”).

Free Speech For People is encouraging members of the public to sign a petition urging the Attorney General to pursue this investigation, and to contact her office to voice support: https://www.impeachmentproject.org/dissolvetrumpinc/

Click here to download the press release. 


Ron Fein for Democracy Now: Impeachment is Overdue

Free Speech For People Legal Director Ron Fein joined Congressman Al Green and Democracy Now to discuss the  latest in the legal case for Congress to begin impeachment proceedings against Donald Trump, including our newest ground for impeachment, illegal hush money payments made in violation of the Federal Campaign Finance Act at the request of Trump, per Trump’s personal attorney, Michael Cohen. Cohen confessed to the payments while pleading guilty to breaking campaign finance laws and a number of other charges.

Click here to purchase your copy of The Constitution Demands It!


Ben Clements on Weekends with Alex Witt: The Time For Impeachment Is Now

Free Speech For People Chair of the Board and author of The Constitution Demands It sat down with Alex Witt on her MSNBC program, Weekends with Alex Witt, to discuss our new book, as well as a number of the Trump administration’s constitutional violations.

Witt began her interview by highlighting potential campaign violations by the Trump campaign following a recent interview in which Rudy Giuliani, Trump’s lawyer, argued that Trump’s legal team – which included Jared Kushner and Trump Jr. –  was not aware of the nationality and ties to Putin of a Russian lawyer with whom they held a meeting. The President further denies knowledge of the meeting. Clements commented on the campaign’s acts of conspiracy and violation of campaign finance laws, “The point of the meeting was part of the Russian government’s effort to support and assist Donald Trump in the campaign. Rudy Giuliani has just been reduced to lying on national television to try and avoid the obvious conclusion that that meeting did in fact constitute a conspiracy against the United States and to violate campaign finance laws.”

In addition, Witt and Clements discussed Trump’s repeated acts of obstruction of justice, with Clements noting, “…The evidence of obstruction that’s been going on throughout this presidency on a near daily basis is out there.”

Turning to a discussion of our book and impeachment, Witt raised the question of whether impeachment needs to happen now. Clements asserted,

“We are at a time in our country where politicians on both sides – Democrats and Republicans – need to put country above party and politics. They really need to stand up for the Constitution. We’re not dealing here with just political issues, we’re dealing with a threat to our Constitutional democracy that we really haven’t seen, at least not in modern times. Donald Trump is exactly the kind of president that the framers had in mind when they gave us an impeachment power. Congress needs to begin an impeachment investigation now. There is no need to wait for the Mueller investigation to conclude – he is conducting a criminal investigation that overlaps in some small respects with the grounds in our book… but more importantly impeachment is a very different process and a very different standard than a criminal investigation.”

Watch the interview here at MSNBC and click here to purchase The Constitution Demands It.


Illegal payments to influence the election are grounds for impeachment

President Trump has been directly implicated—by his own personal lawyer—in a criminal conspiracy to illegally influence the election. This justifies an impeachment investigation.

Facts

On August 21, 2018, President Trump’s personal lawyer, Michael Cohen, pleaded guilty to eight criminal charges. Two of those charges stem directly from criminal actions that he took at the direction of then-candidate Trump in connection with Trump presidential campaign. 

Hush payment to suppress Trump’s affair with Karen McDougal

As set forth in the criminal information and in Cohen’s plea allocution, Cohen arranged for American Media Inc. (AMI) to acquire the rights to the story of Karen McDougal, one of Trump’s former mistresses, about her 2006-07 extramarital affair with Trump. In August 2016, AMI and McDougal executed an agreement in which AMI paid McDougal $150,000 for the rights to her story, with the purpose understood by all involved of suppressing the story so as to prevent it from influencing the election. Cohen then negotiated an agreement with AMI in which he would buy AMI’s rights to enforce the nondisclosure portion of its agreement with McDougal for $125,000. This agreement was signed by both parties, but never consummated.

As Cohen explained in his plea allocution, “I participated in this conduct . . . for the principal purpose of influencing the election.” Under 52 U.S.C. § 30118(a), and as explained in further detail in Free Speech For People’s February 2018 complaint to the Federal Election Commission against American Media Inc. and the Trump campaign, it is illegal for a corporation to make a contribution to a candidate or candidate’s committee. Cohen pleaded guilty to Count 7, which charged that he caused a corporation (American Media Inc.) to make an unlawful campaign contribution.

Hush payment to suppress Trump’s affair with Stephanie Clifford (Stormy Daniels)

In late October 2016, as Election Day neared, Cohen negotiated a similar hush agreement with Stormy Daniels, an adult film actress whose real name is Stephanie Clifford. Under the agreement, on October 27, 2016, Clifford received $130,000 from Essential Consultants LLC, a limited liability company that Cohen set up for the occasion, in exchange for keeping quiet about her 2006 extramarital sexual encounter with Trump.

Even before Cohen’s plea, Trump’s criminal defense lawyer Rudy Giuliani had already confirmed that the purpose of this $130,000 payment was to influence the election. In Giuliani’s words, “Imagine if that came out on Oct. 15, 2016, in the middle of the, you know, last debate with Hillary Clinton.” Under 52 U.S.C. § 30116, contributions (including in-kind contributions) to federal candidates may not exceed $2,700. Cohen pleaded guilty to Count 8, which charged that Cohen made an in-kind contribution exceeding the federal limit by making and causing to be made an expenditure, in cooperation, consultation, and concert with, and at the request and suggestion of one or more members of the campaign.

Trump’s role in the payments and in the cover-up

In his plea allocution, Cohen told the judge that he had arranged both of the illegal hush payments “in coordination with and at the direction of” Donald Trump. (Technically, he said that he did so “in coordination with and at the direction of a candidate for federal office,” but that candidate could only be Trump. Similarly, the criminal information makes a faint-hearted effort at anonymizing Trump, as it refers to “Individual-1, who [by January 2017] had become the President of the United States.”)

The Cohen plea agreement and charge, along with other publicly available evidence of the president’s false statements, demonstrate that the conspiracy continued through at least May 2018, as the president’s company (the Trump Organization) reimbursed Cohen, and the co-conspirators—including Trump—attempted to conceal and cover up the unlawful payment scheme.  In January 2017, Cohen submitted a claim for reimbursement to the Trump Organization, seeking reimbursement for the $130,000 that he had paid Clifford, as well as a $35 wire fee and $50,000 in unspecified “tech services” for campaign-related technology work, for $180,035 in total. Two executives of the Trump Organization fraudulently booked the company’s reimbursement of Cohen as payment for legal services, rather than reimbursement for expenses paid, and they “grossed up” his $180,035 claim to $360,000 so that he would receive the full $180,035 (if not more) after his personal income taxes were deducted. The Trump Organization also added a $60,000 “bonus”—likely payment for Cohen’s services, though services as a “fixer” rather than a lawyer—bringing the total to $420,000. Finally, rather than a single reimbursement payment, the $420,000 was misleadingly paid in 12 monthly installments of $35,000 each, for which Cohen submitted fraudulent invoices for “legal services.” Each month, Cohen sent an invoice for $35,000 stating, “Pursuant to the retainer agreement, kindly remit payment for services rendered” in that month, even though there was no retainer agreement and he had provided no legal services to the company.

Over the course of 2018, Trump and Cohen, both directly and through agents, worked to suppress the story of the payment to Clifford via false or misleading public statements. On February 13, 2018, Cohen falsely told the New York Times that he had used his own personal funds to pay Clifford, and that “[n]either the Trump Organization nor the Trump campaign was a party to the transaction with Ms. Clifford, and neither reimbursed me for the payment, either directly or indirectly.” In April 2018, Trump first falsely denied knowing about the payment, then acknowledged that Cohen represented him in connection with Clifford. On May 2, 2018, Rudy Giuliani, the president’s criminal defense lawyer, told the media that Trump had reimbursed Cohen as a “retainer” paid from Trump’s “personal family account.” The next day, Trump tweeted, falsely, that “Mr. Cohen, an attorney, received a monthly retainer, not from the campaign and having nothing to do with the campaign, from which he entered into, through reimbursement, a private contract between two parties.”

Why this is an impeachable offense

In his 1974 classic Impeachment: A Handbook, Professor Charles Black examined the question of when campaign tactics may rise to the level of an impeachable offense, and concluded: “Congress could do much more than it has done to make clear what the rules are to be.” Congress did, shortly thereafter, “make clear what the rules are to be”—it passed the Federal Election Campaign Act of 1974, the very statute that Donald Trump directed Cohen to violate.

Of course, not every violation of campaign finance law is an impeachable offense. But these violations certainly rise to that level. The president’s personal lawyer has admitted to a criminal conspiracy involving himself, Donald Trump, the Trump campaign, the Trump Organization and its executives, and others, continuing from the summer of the 2016 election through at least the first year of the presidency, to illegally influence the election and to cover up the violations. As explained in more detail in chapter 2 of our book The Constitution Demands It: The Case for the Impeachment of Donald Trump, for purposes of criminal law, Trump’s involvement could be framed for criminal law purposes as conspiracy to violate the Federal Election Campaign Act, conspiracy to defraud the United States by concealing illegal campaign contributions (both during the campaign and after), aiding and abetting, accessory after the fact, misprision of felony, obstruction of justice, and/or perjury (because his June 2017 financial disclosure form, sworn under penalty of perjury and covering a 16-month period that spanned the election, did not list any debt to Michael Cohen). But for impeachment purposes, these technical distinctions are unnecessary—the key point is that Trump directed Cohen to commit crimes and then covered it up.

As also noted in chapter 2 of the book, the Framers understood that election misconduct could be an impeachable offense even if it occurred before the individual became president. In the constitutional debates over the impeachment power, George Mason asked rhetorically: “Shall the man who has practised corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?” Mason was talking about a president who corrupted the electors of the Electoral College, but the same concern applies to other forms of corrupt campaign tactics. Furthermore, Mason’s question illustrates the point that while impeachment usually focuses on conduct that occurs in office, impeachment can also address corruptly obtaining the office in the first place. For example, in 2010, Judge Thomas Porteous was impeached and convicted for conduct, much of which occurred before he assumed federal office—including making false statements to the Senate and FBI in connection with his nomination and confirmation.

But even if there were any remaining doubt about the impeachability of these pre-inauguration crimes, the fact that Trump continued to participate in a cover-up after he became president resolves any questions. The criminal information against Cohen does not disclose whether Trump personally directed or knew all the details of this effort to conceal the payment in this precise manner, but even if he did not, criminal conspiracy does not require that every conspirator knows all of the details.

Conclusion

These are serious violations, and Cohen’s statement that Trump directed him to make these payments is a stunning admission. The personal lawyer to the president of the United States has stated in open court that the president directed him to violate federal law by making illegal campaign payments for the purpose of helping Trump win the 2016 presidential election. That is a ground for impeachment. And while the House Judiciary Committee might wish to develop additional facts in its hearings, there is more than enough factual evidence to start those hearings now.

* * *

For more information on our book The Constitution Demands It: The Case for the Impeachment of Donald Trump, click here.


Cohen’s Guilty Plea to Eight Criminal Charges

Free Speech For People issued today a statement in response to the personal attorney to Donald Trump, Michael Cohen, pleading guilty on eight criminal charges. These charges include violations of the Federal Campaign Finance Act for hush money payments made at the request of Donald Trump for the purpose of influencing the 2016 election.

Michael Cohen pleaded guilty to eight criminal charges. Two of those charges were violations of federal campaign finance law, including one related to causing an illegal corporate contribution, which was the subject of a complaint to the Federal Election Commission by Free Speech For People.  And critically, confirming allegations made earlier by Free Speech for People, Cohen admitted that he made these payments to influence a federal election “in coordination with, and at the direction of, a candidate for federal office” that can only be Donald Trump.

As summarized in our new book The Constitution Demands It: The Case for the Impeachment of Donald Trump, these are serious violations, and Cohen’s statement that Trump directed him to make these payments is a stunning admission. The personal lawyer to the president of the United States has stated in open court that the president directed him to violate federal law for the purpose of helping him to win the 2016 presidential election.

Our original complaintto the Federal Elections Commission was filed on February 16, 2018.  Our amended complaintwas filed on July 25, 2018.

Click hereto download our press release on Michael Cohen pleading guilty to criminal charges.


In the News: Our New Book, ‘The Constitution Demands It’

Our new book The Constitution Demands It: The Case for the Impeachment of Donald Trump, was released Tuesday, August 14th. You can purchase the book now here.

The book was written by Free Speech For People Legal Director Ron Fein, Co-Founder and President John Bonifaz, and Chair of the Board of Directors Ben Clements, with a foreword by The Nation’s national affairs correspondent John Nichols, and argues that the time for impeachment is now.

Our book is already making waves in the media – check out some of the coverage below! You can view the things people are saying and hear interviews with the book’s authors at the following links:

Join the movement calling on Congress to begin impeachment proceedings and pick up your copy of The Constitution Demands It: The Case for the Impeachment of Donald Trump today!


Order The Constitution Demands It Today!