The Democratic Process of Impeachment

John Bonifaz is an attorney and leading activist specializing in constitutional law and voting rights.
Sarah Kendzior is a journalist, scholar and author of the essay collection “The View from Flyover Country.”
This is an interview from Gaslit Nation, a podcast covering corruption in the Trump administration and the rise of autocracy around the world.

Arguments for Impeachment
Sarah Kendzior: So I want to start out by asking a general question because there's a lot of confusion these days about what exactly impeachment is and how it works. So can you just tell us that? What is impeachment and how does it work?

John Bonifaz: Yes. Impeachment is a power that we the people have in our constitution to remove an elected official of the government, including the president, when that person has abused the office and abused the public trust. And it's important to note that there is no requirement whatsoever that there be a conviction of a crime under the federal criminal code, or even an indictment issued before an impeachment process can begin. And this is the way we deal with those in power, including a president who would so trample on the Constitution and abuse the power of the office that we don't wait until another election, because the threat is to the republic itself, to the body politic and the view that the framers had is that there must be a power within the Constitution to protect the republic in that kind of moment. And that's the impeachment power.

Sarah Kendzior: Do you see this as a political or a partisan process or more of a constitutional duty?

John Bonifaz: It's absolutely a constitutional duty, it's a nonpartisan process. It's about defending and protecting our Constitution and our republic when we're faced with somebody in the Oval Office, or in another office, who so abuses the power of that office and abuses the public trust.

Sarah Kendzior: Right. And back in 2019, as I mentioned, you wrote that op ed with Rashida Tlaib, and there is a lot of enthusiasm at that time. You know right after the Dems taken the house to go forth with impeachment proceedings. That was tempered somewhat by Nancy Pelosi coming out and calling against it and now has been reinvigorated in light of the Mueller Report. So, taking all of these different developments into consideration, what are to you, what are some of the most compelling reasons to begin impeachment proceedings now?

John Bonifaz: First I want to be clear that the most compelling reason that we began with respect to this impeachment campaign at free speech for people was on the day the president took the oath of office, Donald Trump was refusing to divest from his business interests and placing himself on a collision course with the two anti corruption provisions of the Constitution: the foreign Emoluments Clause and the domestic Emoluments Clause. He's been treating the Oval Office as a profit making enterprise at the public expense. And so that's why we launched this campaign with Roots Action: Impeach Donald Trump Now on the day that he took the oath in January 2017 for his direct violations of the emoluments clauses. That's the first impeachable offense. But sadly, as we know, this president has committed multiple impeachable offenses since that day. And we now see the most recent one becoming even more in the news here with obstruction of justice. Although, it was clear to us when he fired the FBI Director James Comey that he had committed obstruction of justice. But the Mueller report lays out very clearly for the nation and for Congress that this president, but for being president, would be indicted in a criminal court for criminal charges of obstruction of justice. And the only reason why Mueller chose not to indict is because of a Department Justice Policy which claims that a sitting president cannot be indicted. But the fact is, that impeachment is not about again whether there is an indictment. Impeachment is about whether there's been abuse of power and that obstruction of justice and repeated efforts to shut down the Mueller investigation demonstrate that this president has abused his power.

Arguments Against Impeachment, and their Rebuttals
Sarah Kendzior: No, I agree. As I'm sure you know if you've heard from our show, that we've been thinking he's impeachable from day one. And I definitely encourage our audience to read the op-ed which listed some of those reasons for impeachment. Right now, I want to ask you some questions about the arguments we often hear against impeachment to get your answers since you have expertise on this topic and we often get this kind of blowback when we raise that argument. So my first question, to play devil's advocate in the most literal sense, what's the point of impeachment if it will inevitably fail in Mitch McConnell's Senate?

John Bonifaz: Well first I think that we can't be for sure that it will. But let's assume for the moment that it would. The fact is that members of the House of Representatives have a constitutional duty. They took the same oath to protect and defend the Constitution. They have a constitutional duty to move forward with impeachment proceedings now in the face of all that we know, the overwhelming evidence of the abuse of power this president has engaged in. Those charges ought to be issued. And the Senate must be forced to deal with them. You know, if we do not engage in this impeachment process, then we really are setting a very dangerous precedent for all future administrations that they can so defy the rule of law, so trample on our Constitution and take us down that road to totalitarianism, to an autocrat type situation. This is not what our Constitution is about. We're supposed to protect the checks and balances. We're supposed to protect the republic through the impeachment power. And when we have such flagrant abuses of power in front of us, we cannot say that well we're just going to kick the can down the road, and so called "impeach him at the ballot." That is not an acceptable response.

Sarah Kendzior: But what about if he does fail in the Senate, despite all of these reasons and rationales and Trump decides to use it against the Democrats in 2020. That's an argument we've been hearing a lot. What about that?

John Bonifaz: Well, we're again a nonpartisan organization. We're focused on standing up for our Constitution and our democracy. But I will say, that it is I think a mistake to assume that when the public understands the nature of the abuses that this president is committed and the impeachment process moves forward, that there's not going to be an education, even with the Senate supposedly acquitting him in a trial, that that education will take place. And that's what's critical for the nation to understand that we have a president whose so abusing his power. But ultimately, we have to put country over party here.

John Bonifaz: If we simply look at this from a political strategy standpoint, then we will effectively allow Donald Trump to hold the nation hostage and let us think that somehow an election is the way to resolve this. The second point on this, is that if we assume that the 2020 election is going to be free and fair, we're making a very dangerous assumption. This is the president who has shown his willingness to trample on our Constitution. What makes us think that he will treat the 2020 election in a free and fair manner, given what we know of what happened in 2016? So, I think that for all these reasons we have to move forward with an impeachment process. That's what Congresswoman Rashida Tlaib has sought to initiate with her resolution in the House of Representatives to start an impeachment inquiry, and the Senate needs to be forced to vote. As Senator Warren has said very eloquently, "Let every member of the house and let every member of the Senate be forced to vote on this question up or down do they condone this kind of behavior out of the Oval Office?"

Sarah Kendzior: Right. I agree with you, but we often hear this kind of blowback about divisiveness, about the need for bipartisan support going into the hearings. For example, that was one of Pelosi's rationales, that there couldn't be impeachment hearings until there is bipartisan and overwhelming evidence. If we're at the point where we're now having to worry for, very rational and legitimate reasons, about Trump not holding free and fair elections in 2020, when we're looking at all these unpunished policies before, is it possible to reach some kind of bipartisan consensus beforehand?

John Bonifaz: You know, I don't know in Washington whether it's possible but honestly that's not the standard that needs to be applied. When the impeachment process began in the House Judiciary Committee during Watergate era against then President Richard Nixon, there was no strong bipartisanship. Most Republicans stood by him. They stood by him all the way through into the summer of 1974. They stood by him even with the tapes that got revealed. Thirty percent of the public, according to polls when he took that famous helicopter ride after he resigned in August of 1974 and left the grounds of the White House, thirty percent still thought he should stay there and remain as president. So, the idea that we need strong bipartisanship before we even start an impeachment process would have meant that Nixon would never have faced an impeachment proceeding. That is not the standard to apply. The standard to apply is, are there impeachable offenses? Was there abuse of power? Was there abuse of the public trust? And if all those answers are yes, then Congress has a duty to act and move forward and not look at the question of "do we have a certain party onboard, the party the president represents?"

Sarah Kendzior: Why do you think that there has been this pushback against impeachment from representatives like Pelosi or Steny Hoyer or others who've come out against it in advance?

John Bonifaz: Well I think first of all, they draw the wrong historical lesson. They look at the Clinton impeachment process and they think that they don't want to go down the road where they argue Republicans ultimately got politically hurt by that, although it's important to note that Republicans ended up having a president from their party in the White House in 2000, leaving aside the question of whether he actually won the vote, even the Electoral College vote. But you know that being aside, the analogy is not to the Clinton impeachment process. That analogy must be to the Nixon impeachment process. This is far worse than Watergate. And ultimately, the country came together with the view and that what I mean came together, a majority of the country understood that keeping Richard Nixon in the Oval Office was a danger to the republic. And that's really what has to happen here. Impeachment hearings need to begin so the public can understand what's at stake. And you know members of Congress who are looking at polls, who are trying to take the temperature of this, pointing their fingers to the wind, that is not complying with their duty. Their duty is to look at the evidence. And the overwhelming evidence is that this president has no respect for the rule of law and abuses his power almost on a daily basis. You know you asked at the outset, what are the most important impeachable offenses? Some that don't even get covered by the Mueller report are just as outrageous, if not more, than what the Mueller report covers, including the unconstitutional imprisonment of children and families at the border, in violation of their due process rights, their Eighth Amendment rights against cruel and unusual punishment, his incitement of violence and undermining equal protection laws, giving aid and comfort to white supremacists and neo-Nazis. These too, are impeachable offenses and the Mueller Report doesn't cover them at all. And we've known this in the light of day for many months. So, this is why there must be an impeachment process that goes forward and we can't be looking at the polling on this to determine whether or not to start them.

Sarah Kendzior: I'm curious, why do you think there was so much focus on the Muller report as some kind of avenue to impeachment? When as you noted, all of these atrocities have been taking place in plain sight since he came into office and are atrocities that you can't just sit back and allow time to tick by while a child is snatched from their parents and abused. What is the rationale for the pace here?

John Bonifaz: I mean, I think, quite frankly, those in the leadership in both parties have looked at the Mueller Report as the basis by which they're claiming to make a decision. They've been quoted saying, "well we're going to see what's in the Mueller Report." And really, at the end of the day, those who ran in 2018 and claimed they wanted to place a check on this presidency, that check is the impeachment power. That check is not traditional oversight when we're dealing with a president who so abuses his power. It's the process of impeachment. And I think that many members of Congress, frankly, hid behind the Mueller investigation to claim that they were not going to take account for any of the impeachable offenses that were leading up to it, even outside the Mueller investigation mandate. And then now that the Mueller Report is out, and is so damning on the obstruction of justice front, and frankly, on the Russian interference front, they now then want to say, "Well, now we now we have to do our own investigation." To call all these witnesses under "abuse of power hearings" that they're calling them and determine what we're gonna do next.

John Bonifaz: No. We need to start a formal impeachment inquiry. The Mueller Report has been delivered. They said they needed that, and there's no more excuses. I think that we the people have the responsibility now to press our members of Congress to act and carry out their oath of office.

Sarah Kendzior: Can you explain what the difference is between traditional oversight hearings and "abuse of power" hearings, and an impeachment hearing?

John Bonifaz: I think that the additional oversight hearings really are designed to shine a light for the public to see what's happening with respect to a particular administration's actions, and to push back against administrations in a conventional moment in history, where the administration won't understand there's resistance in Congress. That's not what we're dealing with here. And so when we hear about all the committees in Congress in the House that are conducting these oversight hearings, they're acting as if we're in one of those conventional moments in history where this is the traditional response. That's not where we are. We are in a constitutional crisis. And that's the way they need to respond to it. It's a crisis for the checks and balances process, it's a crisis for the rule of law, and that is requiring the use of the impeachment process. So, a formal impeachment inquiry would not look solely at "is the administration conducting itself in a way that comports with the policies that Congress has laid out or answering questions properly from Congress?" No. The question before a formal impeachment inquiry is, "Has the president abused his power?" Has he engaged in impeachable offenses? Should charges be issued, articles of impeachment, and sent to the Senate for a trial? Those are the questions that need to be asked.

Sarah Kendzior: We're currently in a situation where multiple Republicans have been subpoenaed to appear at hearings. They're refusing to follow up on those subpoenas, they're refusing to follow the law or protocol in general. How would that affect impeachment hearings down the road? Like what if they just won't show up?

John Bonifaz: The third article of impeachment issued by the House Judiciary Committee against President Nixon was precisely around this issue, where Nixon was defying subpoenas, refusing to cooperate with Congress and undermining that check and balance of the independent branch of government, a co-equal branch of government. So this I think should be the final straw if there ever need to be, with respect to why Congress should start impeachment hearings. We know that there will now be defiance of these subpoenas, refusal to come before Congress to testify and answer these questions, and that ought to be the final reason why they need to start an impeachment process. And if these witnesses don't want to show up, move forward with the evidence you have. We already have a voluminous report from Special Counsel Robert Mueller that lays out clearly that this president repeatedly has obstructed justice, and that with respect to coordination with the Russian government, there's plenty of evidence to show that from an impeachment standard, he undermined his office and corruptly obtained the office. And that's important also for your listeners to know is that the impeachment process does not just cover the acts of abuse of power when you're in the office, it also covers if you've corruptly obtained that office. George Mason spoke about this clearly during the debate on the impeachment power. And so here we have a situation where what Robert Mueller's laid out is that, the president and his campaign were fully aware, fully aware, that they were engaged in distributing stolen material from a foreign power, illegally obtained and they went ahead and did it without calling the FBI, without saying "wait a minute, we shouldn't have this material." They went ahead and did it. And that level of coordination may not rise to the level of a criminal conspiracy that Robert Mueller was charged with determining. But it certainly rises to the level of impeachment.

Elections are not Impeachment
Sarah Kendzior: I agree. You don't have to convince me. You know I still continue to hear this kind of pushback. And one other thing I've heard is, we've now started the process too late. I think Al Green actually was making a kind of sarcastic tweet about this, that back in 2017 people said it was too early. We had to give Trump a chance. Now we're in 2019, and there's the chance that if we do start impeachment hearings they may continue right up to the point of the election. Is that possible? And if it is, what effect would that have on the election? What would the country look like at that time?

John Bonifaz: Well I think that the impeachment process does not have to go for many many months. And I do think that an inquiry needs to be opened first and then a determination needs to be made whether articles of impeachment should be issued. But I don't think it needs to take place over the course of a year and a half. It can occur within a matter of months, with respect to the issuance of articles of impeachment. But I agree with Al Green, Congressman Al Green, who has been a champion on this a hero for standing up very early that we had plenty more evidence already, plenty of evidence to issue articles of impeachment before. But you know the fact is that whether or not it takes weeks or months or goes into the fall or winter of 2019, Congress needs to be pressed to start that process now and not to hide behind the notion that we're going to wait until November 2020 to so called "impeach him at the ballot."

John Bonifaz: That is not why we have elections. We don't have elections to address a direct and serious threat to our republic that happens a year and a half or two or three years before the election. We have elections to determine who shall govern in the next term. And to simply kick the can down the road and say well we're just going to deal with this direct threat, this ongoing and daily threat that we face in our country by waiting until November 2020, this person is too dangerous in the Oval Office to wait for that, and that process has to start now. It really, I think, comes down to whether we as a people can pressure our members of Congress to act. They need to hear from us. They need to understand that we demand this kind of accountability, and it's not enough to say well we're going to go ahead and impeach him at the ballot. There's no such thing. We don't hold elections for impeachment purposes.