The Case for a Trump Impeachment

Andrew Johnson, Bill Clinton… Donald Trump? It could happen, according to a law professor and consumer-protection expert.
Author:
Publish date:
41a21-1uwcetd6nvaiwenbd8pal5q

Donald Trump, the man who has drawn headlines for repeatedly skirting the unspoken rules of decorum during his presidential campaign, has also promised to break several actual United States laws if elected in November—murdering terrorists’ families and torturing suspected criminals among them.

These are, of course, likely “high crimes and misdemeanors,” and therefore grounds for impeachment under the U.S. Constitution. But even if Trump doesn’t make good on his boasts, has the GOP candidate already laid the groundwork for his Congressionally induced removal from the Oval Office? Don’t be so skeptical: His brief tenure as the face and leader of the for-profit Trump University suggests as much, according to a new working paper from University of Utah law professor Christopher Peterson.

In his paper titled “Trump University and Presidential Impeachment,” Peterson argues that fraud and racketeering accusations that Trump is currently facing in three ongoing lawsuits regarding his business school may count as high crimes and/or misdemeanors. Peterson, who recently took an academic hiatus to work in enforcement at the Consumer Financial Protection Bureau, knows what he’s talking about: The professor, who focuses on financial services and consumer protection, spent the past four and a half years determining the validity and reality of—and bringing cases against—banks and other financial providers, payday lenders, mortgage brokers. Or, as he aptly puts it, “deciding when a case has legs.”

There are three ongoing cases against Trump that could head to trial sometime after the November election, which collectively accuse him of fraud, false advertising, and racketeering. In his latest analysis, Peterson argues that, barring settlement, the fraud and racketeering allegations in The People of the State of New York v. The Trump Entrepreneur Initiative LLC; Low v. Trump University, LLC; and Cohen v. Trump University, LLC count as serious and imprisonable crimes in the states in which these cases are being tried, and could also be deemed grounds for impeachment by Congress. (Whether they would decide to act on that reminder is up in the air, however: Under U.S. law, the majority-Republican House of Representatives would have to initiate the motion to impeach Trump, while the Republican-majority Senate would try the impeachment.)

If he were impeached, Trump would join Andrew Johnson, impeached and acquitted in 1868, and Bill Clinton, impeached in 1998 and acquitted in 1999, as the third president to face such action in history. As Peterson discussed in a phone call with Pacific Standard, a Trump impeachment would also be highly original: the first to include accusations of racketeering. Peterson talked to us about the strengths, obstacles, and sheer originality of the legal impeachment case against Trump — and why he thinks Trump may be worried.

section-break

How did it first dawn on you that these three ongoing Trump University cases might be laying the ground for impeachment if Trump is elected president?

I do consumer protection cases for a living, and obviously it isn’tlost on me that Trump is running for president of the U.S., so I took a look at those cases to figure out whether there was something really illegal about what he did there. And as I was reading through the cases, I started to realize how serious the allegations are: The claims that he is currently facing are at the boundary of where a case is no longer really appropriate to be resolved as a civil matter, and needs to be addressed as a crime. Then you think, well, gosh, can we have a president who’s engaged in fraud? That led me to take a look at the impeachment statute and compare that to the alleged inappropriate behavior that presidents have engaged in in the past, and to think about whether this was comparable.

What was the strongest legal evidence that you found to support a case for Trump’s impeachment?

The most compelling evidence, in my view, are the stories that you hear from consumers themselves. The one that stands out in my mind is from a mom of a kid with Down syndrome. She’s hoping to make a better life for her kid, decides she can’t really afford an expensive Trump Gold Elite mentorship package, but [a Trump University instructor] talks her into buying one anyway, because [the person] convinces her that if she pays $25,000, she’ll make it back in 60 days. And then, after she parts with her $25,000, her mentor disappears and become what another consumer called a “phantom mentor.”

Here’s what she wrote:

Donald Trump received $25,000 of my money. For $25,000, I have received a lifetime membership to nothing! No one contacted me and I have not been able to contact anyone because the phone numbers have all been disconnected. There is no Trump University.

That’s fraud. You can’t take $25,000 from somebody and then disappear into the night. It doesn’t matter if that’s Trump, if it’s Hillary Clinton, if it’s Mickey Mouse, there’s no one in the U.S. that is allowed to do that; doing it rises to the level of a crime if it’s true.

What would the biggest legal hurdles against a case for Trump’s impeachment be, if he is elected president?

Some issues to work through: Does it matter that these cases are civil cases? Does it matter that the activity occurred before he was in office, and does it matter that there’s an election that would be separating the alleged criminal activity and his impeachment? My answer to all of those questions is that none of those are insurmountable obstacles to his impeachment, but they are nonetheless concerns that Congressmen have to think about.

e3628-1tod6h9hkvxhvc4_pr39g5g

The best argument against his impeachment would be that the public has, in effect, conducted a referendum on whether or not impeachment is appropriate by conducting an election. But there are some weaknesses in that argument too. For example, it’s not clear to people that aren’t specialists or experts how serious these claims are; it takes some patience and some technical knowledge and some training as an attorney to be able to evaluate the merits of those claims, and the courts have not issued final rulings on them. So if Congress decided it wanted to consider impeachment, it could be argued that there is something of a “tolling” principle — a concept in the law that says that even though the determination by the court system could, in this case, happen after the election, there’s new information that Congress can rely on in deciding to go forward with impeachment proceedings that the public didn’t get to see or understand [in the first place].

Even if it’s decided that an election does not serve as a referendum, how likely is it, in your view, that Congress would take the initial action to impeach a potential Trump president if voters decide on him?

My paper doesn’t say that Trump will be impeached, or even that he should be impeached: Rather, it’s focused on a simple legal claim that it would be legal to impeach him. That doesn’t tell us the future, but it does tell us something in a materially more informative way than the ordinary, run-of-the-mill accusations [against Trump].

There’s something special about a court of law, which wades through the evidence carefully and professionally and comes to firm and rigorous conclusions that are designed to debunk conspiracy theories and wild and preposterous accusations. Trump and Trump University have tried throughout these cases to get them kicked out as spurious, or not reasonable or sensational or as conspiracies, and he’s been completely unsuccessful so far in doing that. Even though this doesn’t tell us about what’s going to happen in the future, or what’s likely to happen if he’s elected, it does give us a firm, real data point in evaluating his character and his culpability.

Should voters be taking the legality of a potential impeachment into account when they’re at the polls?

It does seem to me that this is an important data point for the public to bear in mind as they make the difficult electoral decision that’s facing them. It seem to me that whatever decision each individual voter makes, it’s worth bearing in mind that Trump would bring some heavy baggage of fraud and racketeering claims, which are going to continue to plague him, with him to the presidency if he’s elected.

Naturally, Trump has been trying to minimize the importance of these cases in the way that he talks about them in the press, but in some respects his reaction to one of the rulings in the racketeering case was particularly instructive — Trump pointed to the judge in that case, Judge Gonzalo Curiel, as having “Mexican” heritage and therefore was unable to be fair. The fact that he had an outburst about that is an indication that he has some sense of what a big deal the ruling was. In a racketeering civil case, there are three big hurdles that plaintiffs have to get through before they go to trial: The 12(b)(6) motion, a motion to dismiss, a motion to certify class-action, and a summary judgment motion — and all of those big chances that Trump has had to try and kick this out of court, he has lost. That’s significant.

Not only that, but it’s not just Trump University that has lost them; Trump himself has lost them. Which means that there is going to be — unless he somehow manages to get the plaintiffs’ attorneys to settle the case — a trial about whether Trump, himself, engaged in racketeering. I mean, that is an astonishing fact; if Trump wins the election, there will be a trial about whether the president of the U.S. is a racketeer.

Has another major candidate running for president faced serious, potential-grounds-for-impeachment charges like these?

I don’t know that it’s fair to say that fraud is entirely unprecedented: There were allegations of tax fraud against President Richard Nixon, but the House Judiciary Committee voted to refer articles of impeachment to the main body of the House of Representatives, and the articles that they eventually settled on did not include the actual tax fraud allegations. And Nixon was never impeached, he resigned. But certainly a racketeering claim is unprecedented. There’s no credible argument that Nixon was racketeering for heaven’s sake.

It strikes me that there’s a particularly tragic irony in all of this. On the one hand, elections and the electoral process are so important to our democracy, but on the other hand, so is accountability and the notion that no individual is above the rule of law. Those are two of the most prized American values that have served us well for hundreds of years, but, in these cases, we’re in this tragic position of being forced to choose between the two, potentially: Do we respect elections, or do we respect the rule of law and hold people accountable for their misdeeds and crimes? That’s a hard choice to make and it’s one that, if Trump is elected, Congress will be forced to face.

This interview has been edited for length and clarity.

Related