I Am Part of the Resistance Inside the Trump Administration
I work for the president but like-minded colleagues and I have vowed to thwart parts of his agenda and his worst inclinations.
The Times today is taking the rare step of publishing an anonymous Op-Ed essay. We have done so at the request of the author, a senior official in the Trump administration whose identity is known to us and whose job would be jeopardized by its disclosure. We believe publishing this essay anonymously is the only way to deliver an important perspective to our readers. We invite you to submit a question about the essay or our vetting process here.
President Trump is facing a test to his presidency unlike any faced by a modern American leader.
It’s not just that the special counsel looms large. Or that the country is bitterly divided over Mr. Trump’s leadership. Or even that his party might well lose the House to an opposition hellbent on his downfall.
The dilemma — which he does not fully grasp — is that many of the senior officials in his own administration are working diligently from within to frustrate parts of his agenda and his worst inclinations.
I would know. I am one of them.
To be clear, ours is not the popular “resistance” of the left. We want the administration to succeed and think that many of its policies have already made America safer and more prosperous.
But we believe our first duty is to this country, and the president continues to act in a manner that is detrimental to the health of our republic.
That is why many Trump appointees have vowed to do what we can to preserve our democratic institutions while thwarting Mr. Trump’s more misguided impulses until he is out of office.
The root of the problem is the president’s amorality. Anyone who works with him knows he is not moored to any discernible first principles that guide his decision making.
Although he was elected as a Republican, the president shows little affinity for ideals long espoused by conservatives: free minds, free markets and free people. At best, he has invoked these ideals in scripted settings. At worst, he has attacked them outright.
In addition to his mass-marketing of the notion that the press is the “enemy of the people,” President Trump’s impulses are generally anti-trade and anti-democratic.
Don’t get me wrong. There are bright spots that the near-ceaseless negative coverage of the administration fails to capture: effective deregulation, historic tax reform, a more robust military and more.
But these successes have come despite — not because of — the president’s leadership style, which is impetuous, adversarial, petty and ineffective.
From the White House to executive branch departments and agencies, senior officials will privately admit their daily disbelief at the commander in chief’s comments and actions. Most are working to insulate their operations from his whims.
Meetings with him veer off topic and off the rails, he engages in repetitive rants, and his impulsiveness results in half-baked, ill-informed and occasionally reckless decisions that have to be walked back.
“There is literally no telling whether he might change his mind from one minute to the next,” a top official complained to me recently, exasperated by an Oval Office meeting at which the president flip-flopped on a major policy decision he’d made only a week earlier.
The erratic behavior would be more concerning if it weren’t for unsung heroes in and around the White House. Some of his aides have been cast as villains by the media. But in private, they have gone to great lengths to keep bad decisions contained to the West Wing, though they are clearly not always successful.
It may be cold comfort in this chaotic era, but Americans should know that there are adults in the room. We fully recognize what is happening. And we are trying to do what’s right even when Donald Trump won’t.
The result is a two-track presidency.
Take foreign policy: In public and in private, President Trump shows a preference for autocrats and dictators, such as President Vladimir Putin of Russia and North Korea’s leader, Kim Jong-un, and displays little genuine appreciation for the ties that bind us to allied, like-minded nations.
Astute observers have noted, though, that the rest of the administration is operating on another track, one where countries like Russia are called out for meddling and punished accordingly, and where allies around the world are engaged as peers rather than ridiculed as rivals.
On Russia, for instance, the president was reluctant to expel so many of Mr. Putin’s spies as punishment for the poisoning of a former Russian spy in Britain. He complained for weeks about senior staff members letting him get boxed into further confrontation with Russia, and he expressed frustration that the United States continued to impose sanctions on the country for its malign behavior. But his national security team knew better — such actions had to be taken, to hold Moscow accountable.
This isn’t the work of the so-called deep state. It’s the work of the steady state.
Given the instability many witnessed, there were early whispers within the cabinet of invoking the 25th Amendment, which would start a complex process for removing the president. But no one wanted to precipitate a constitutional crisis. So we will do what we can to steer the administration in the right direction until — one way or another — it’s over.
The bigger concern is not what Mr. Trump has done to the presidency but rather what we as a nation have allowed him to do to us. We have sunk low with him and allowed our discourse to be stripped of civility.
Senator John McCain put it best in his farewell letter. All Americans should heed his words and break free of the tribalism trap, with the high aim of uniting through our shared values and love of this great nation.
We may no longer have Senator McCain. But we will always have his example — a lodestar for restoring honor to public life and our national dialogue. Mr. Trump may fear such honorable men, but we should revere them.
There is a quiet resistance within the administration of people choosing to put country first. But the real difference will be made by everyday citizens rising above politics, reaching across the aisle and resolving to shed the labels in favor of a single one: Americans.
A person commits the crime of treason if he levies war against his state or country or sides to its enemies, giving them aid and comfort. Treason is a crime under federal and some state laws. Treason is made a high crime, punishable by death, under federal law by Article III, section 3 of the U.S. Constitution: “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.
Under this article of the Constitution, no person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court. Treason requires overt acts such as giving sensitive government security secrets to other countries, even if such countries are not enemies. Treason can include spying on behalf of a foreign power or divulging military secrets.
The majority of states outlaw treason in their constitutions or statutes similar to those in the U.S. Constitution. There have been only two successful prosecutions for treason on the state level, that of Thomas Dorr in Rhode Island and that of John Brown in Virginia.
Article Three Section 3 (treason section) of the United States Constitution
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
In English criminal law, attainder or attinctura was the metaphorical “stain” or “corruption of blood” which arose from being condemned for a serious capital crime (felony or treason). It entailed losing not only one’s life, property and hereditary titles, but typically also the right to pass them on to one’s heirs. Both men and women condemned of capital crimes could be attainted.
Attainder by confession resulted from a guilty plea at the bar before judges or before the coroner in sanctuary. Attainder by verdict resulted from conviction by jury. Attainder by process resulted from a legislative act outlawing a fugitive. The last form is obsolete in England (and prohibited in the United States), and the other forms have been abolished.
CNN July 16: Following President Trump’s joint press conference with Russian President Vladimir Putin, former CIA Director John Brennan tweeted that Trump’s comments were “nothing short of treasonous.” CNN panelists discuss.
‘Nothing short of treason’: US voters on the Trump-Putin summit
PLYMOUTH, Minn. – If President Trump needs tips for dealing with Vladimir Putin, there’s a real estate agent in Plymouth who may have some insight.
Mark Stipakov knows the Russian president from his earliest days, as an elementary school kid at School 193 in Leningrad. They spent five years together as classmates in the Soviet Union, before Stipakov switched schools at the end of sixth grade.
David Hickton, former U.S. attorney who pioneered the tactic of indicting state actors for hacking, talks with Rachel Maddow about the value of indicting nation-state adversaries even if the chances for extradition are low. » Subscribe to MSNBC: http://on.msnbc.com/SubscribeTomsnbc
Presidential Impeachment: The Legal Standard and Procedure
The involuntary removal of a sitting President of the United States has never occurred in our history. The only legal way such can be accomplished is by the impeachment process. This article discusses the legal standard to be properly applied by members of the U.S. House of Representatives when voting for or against Articles of Impeachment, and members of the U.S. Senate when voting whether to convict and remove from office a President of the U.S., as well as the procedure to be followed.
Article I § 2 of the United States Constitution gives the House of Representatives the sole power to impeach (make formal charges against) and Article I § 3 gives the Senate the sole power to try impeachments. Article II § 4 of the Constitution provides as follows:
“The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”
Thus, the operative legal standard to apply to an impeachment of a sitting President is “treason, bribery, or other high crimes and misdemeanors.” There is substantial difference of opinion over the interpretation of these words.
There are essentially four schools of thought concerning the meaning of these words, although there are innumerable subsets within those four categories.
The first general school of thought is that the standard enunciated by the Constitution is subject entirely to whatever interpretation Congress collectively wishes to make:
“What, then, is an impeachable offense? The only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office…” Congressman Gerald Ford, 116 Cong. Rec. H.3113-3114 (April 15, 1970).
This view has been rejected by most legal scholars because it would have the effect of having the President serve at the pleasure of Congress. However there are some, particularly in Congress, who hold this opinion.
An Indictable Crime
The second view is that the Constitutional standard makes it necessary for a President to have committed an indictable crime in order to be subject to impeachment and removal from office. This view was adopted by many Republicans during the impeachment investigation of President Richard M. Nixon. The proponents of this view point to the tone of the language of Article II § 4 itself, which seems to be speaking in criminal law terms.
There are other places in the Constitution which seem to support this interpretation, as well. For example, Article III § 2 (3)provides that “the trial of all crimes, except in cases of impeachment, shall be by jury.” Clearly the implication of this sentence from the Constitution is that impeachment is being treated as a criminal offense, ergo, impeachment requires a criminal offense to have been committed.
Article II § 2 (1) authorizes the President to grant pardons “for offenses against the United States, except in cases of impeachment.” This sentence implies that the Framers must have thought impeachment, and the acts which would support impeachment, to be criminal in nature.
In the past, England had used impeachment of the King’s ministers as a means of controlling policy (Parliament could not get rid of the King, but could get rid of his ministers who carried out acts Parliament believed to be against the best interest of the country). However, in English impeachments, once convicted that person was not only removed from office but was also punished (usually by execution).
The third approach is that an indictable crime is not required to impeach and remove a President. The proponents of this view focus on the word “misdemeanor” which did not have a specific criminal connotation to it at the time the Constitution was ratified. This interpretation is somewhat belied by details of the debate the Framers had in arriving at the specific language to be used for the impeachment standard.
Initially the standard was to be “malpractice or neglect of duty.” This was removed and replaced with “treason, bribery, or corruption.” The word “corruption” was then eliminated. On the floor during debate the suggestion was made to add the term “maladministration.” This was rejected as being too vague and the phrase “high crimes and misdemeanors” was adopted in its place. There are many legal scholars who believe this lesser standard is the correct one, however.
Relating to the President’s Official Duties
The fourth view is that an indictable crime is not required, but that the impeachable act or acts done by the President must in some way relate to his official duties. The bad act may or may not be a crime but it would be more serious than simply “maladministration.” This view is buttressed in part by an analysis of the entire phrase “high crimes or misdemeanors” which seems to be a term of art speaking to a political connection for the bad act or acts. In order to impeach it would not be necessary for the act to be a crime, but not all crimes would be impeachable offenses.
A Saturdsy Night Massacre review
Some hold the opinion that Congress could pass laws by declaring what constitutes “high crimes and misdemeanors” which would, in effect, be a list of impeachable offenses. That has never happened. (Query: If Congress passed such a code of impeachable offenses, could that be applied retroactively, much as a definition, to a sitting President? Would such an application be viewed as an ex post facto law? Also, would such a statue be an attempt to amend the Constitution, without following the amendment procedure?)
How Congress Sets the Rules for Impeachment
Both the U.S. House of Representatives and the U.S. Senate have the right to make their own rules governing their procedure, and to change those rules. Under current rules, the actual impeachment inquiry begins in the Judiciary Committee of the House of Representatives. That Committee holds hearings, takes evidence, and hears testimony of witnesses concerning matters relevant to the inquiry. Typically, as occurred in the case of President Nixon, there will also be a Minority Counsel who serves the interest of the party not controlling Congress.
Witnesses are interrogated by the Committee Counsel, the Minority Counsel, and each of the members of the House Judiciary Committee. The Committee formulates Articles of Impeachment which could contain multiple counts. The Committee votes on the Articles of Impeachment and the results of the vote are reported to the House as a whole. The matter is then referred to the whole House which debates the matter and votes on the Articles of Impeachment, which may or may not be changed. If the Articles of Impeachment are approved, the matter is sent to the Senate for trial.
The trial in the Senate is handled by “Managers” from the House of Representatives, with the assistance of attorneys employed for the prosecution of the impeachment case. The Senate sits as a jury. (In the past the Senate has heard judicial impeachments by appointing a subcommittee especially for that purpose, which then reports its findings to the Senate as a whole.) The Senate would then debate the matter, and vote, each individual Senator voting whether to convict the President and remove him from office, or against conviction. If more than two-thirds of the Senators present vote to convict, the President would be removed from office. Thus a Senator who abstained from voting but was present would in effect be voting against conviction. (Article I § 3).
If the President is convicted by a vote of the Senate, and removed from office, yet another grave constitutional crisis is then presented. Does the President have a right of appeal, and if so, to whom? Article I § 3 of the Constitution states:
“The Senate shall have the sole Power to try all Impeachments…”
For many years, the conventional view was that the forgoing section of the Constitution meant that the Senate was the final arbiter when it came to impeachments (at least as to Federal Judges) and that what constituted an impeachable offense would be unreviewable. See Ritter v. U.S., 84 Ct. Cl. 293 (1936) cert denied 300 U.S. 668 (1937).
However, if there is an impeachment standard (and there can be no doubt that there is as the Constitution specifically establishes one — “treason, bribery or other high crimes and misdemeanors”), then it is only logical that it is possible for that standard not to be correctly followed. If such is the case, who is responsible for saying that the standard was not correctly followed? There can only be one answer — the courts. As there has never been a successful impeachment and removal of a sitting President, there is no authority “on all fours” for the proposition either way. However, there is authority which would shed some light on this complicated question.
The Role of the U.S. Supreme Court
The Supreme Court of the United States has decided that it should not review judicial impeachments, using the “political question” doctrine to sidestep the issue. WalterNixon v. United States, 506 U.S. 224 (1993). In the Walter Nixon case, Judge Nixon attacked the rule of the Senate allowing a subcommittee to hear evidence, rather than the Senate as a whole, in his judicial impeachment. The opinion of the Supreme Court declined to review Judge Nixon’s case, and in dicta is not binding on future Courts.
Even though the Court was unanimous in concluding not to review Judge Nixon’s removal from office, there were multiple concurring opinions. The concurring opinion of Justice White indicates an unwillingness, on his part at least, to conclude in advance that a Presidential impeachment would be unreviewable. See Walter Nixon v. United States, 506 U.S. at 244. As stated by Justice White at footnote 3, page 247 of the Walter Nixon case:
“Finally, as applied to the special case of the President, the majority’s argument merely points out that, were the Senate to convict the President without any kind of trial, a Constitutional crisis might well result. It hardly follows that the Court ought to refrain from upholding the Constitution in all impeachment cases. Nor does it follow that, in cases of Presidential impeachment, the Justices ought to abandon their constitutional responsibilities because the Senate has precipitated a crisis.”
This view is echoed by Justice Souter in his concurring opinion in the same case:
“If the Senate were to act in a manner seriously threatening the integrity of its results…judicial interference might well be appropriate.” Walter Nixon v. United States, 506 U.S. at 253.