New ground for impeachment hearings: cruel and unconstitutional imprisonment of children and their families

We have added a new ground to our call for Congress to start hearings on whether to impeach President Trump: cruel and unconstitutional imprisonment of adults and children.

Background

Under Trump’s dictate, several thousand children have been seized from their families—who were often told that their children were just “bathing”—and warehoused in mass orphanages indefinitely while their parents are left unaware of their whereabouts. Some are just a few months old; many, including children below school age, are forced to sleep on the floor in cages.

This treatment of the children is so shocking to the conscience that Trump and his administration cannot even formulate a plausible governmental interest. Rather, the government is tearing young children away from their parents for no reason other than to deliberately increase the suffering of migrant families. The administration’s stated goal for the policy of breaking up migrant families and imprisoning the children was to deter immigration—in other words, as a form of punishment. But many of these families have not violated any laws: they lawfully presented themselves to border officers at designated ports of arrival and applied for asylum, in accordance with U.S. law authorizing such applications and the Universal Declaration of Human Rights, and Trump has no legitimate interest in “deterring” lawful asylum applications. (Nor is there a legitimate interest in inflicting such cruelty as punishment for illegal entry, which is a nonviolent misdemeanor in the same legal category as misuse of the seal of the President of the United States, for example, on golf tees at a Trump golf course.) Instead, Trump describes his own goals in terms that evoke Nazi propaganda: to punish immigrants who “infest” the country. Meanwhile, Trump plans internment camps for migrants on military bases.

Legal analysis

Trump’s action has violated the fundamental human rights of both parents and children in contravention of the Constitution. Regardless of the circumstances of entry, once inside the United States, both children and parents are protected by the Due Process Clause of the Fifth Amendment to the U.S. Constitution. The Supreme Court has long held that removing children from their parents without due process of law violates the Due Process Clause. As the Supreme Court has recognized, “the interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by [the] Court.”

Imprisoning the children also violates the Eighth Amendment’s prohibition against “cruel and unusual punishments.” Even setting aside the asylum applicants described above (who violated no law by duly applying under a statutory process which the Trump administration has no lawful interest in deterring), punishing parents for misdemeanor illegal entry by imprisoning their children violates the Eighth Amendment because it is grossly out of proportion to the parents’ offense and punishes the children themselves for conduct for which they are not responsible. For similar reasons, the United Nations advised the Trump administration that its policy violates international law.

In response to massive public outcry and after federal court rulings, Trump retreated from his policy by a tiny fraction. According to his recent executive order, the government will no longer separate children from families—they will detain them together. But family detention for more than a brief period is also unconstitutional, and the government is legally required, as part of a court settlement after years of litigation, not to detain families for more than 20 days. Furthermore, Trump’s executive order does nothing to reunite the families already separated. Again, the United Nations’ human rights experts warned that this executive order fails to remedy the violations.

And nothing can repair the psychological trauma that Trump’s action has already inflicted on the children. For comparison, a U.S. soldier deployed in the Central American countries from which most of these children come could be court-martialed under the Uniform Code of Military Justice for the offense of child endangerment, punishable by up to five years’ confinement. This offense  occurs when a servicemember had a duty to care for a certain child but then “endangered the child’s mental or physical health, safety, or welfare through design or culpable negligence.” Given the cruelty of the separations themselves, and the chaotic implementation in which children (including some with physical or mental disabilities) have been warehoused, the mental and physical harm that will emerge from this policy will be incalculable.

High crimes and misdemeanors

The constitutional standard of “high crimes and misdemeanors” is not precisely defined, but Professor Cass Sunstein has summarized it as including “illegal acts of a serious kind and magnitude and also acts that, whether or not technically illegal, amount to an egregious abuse of office.” As noted above, Trump’s actions are a gross violation of human rights, in violation of multiple provisions of the U.S. Constitution. But even setting aside the legal doctrines, his actions—perhaps more than any other offense for which articles of impeachment have been approved against any U.S. president—fit the criterion, proposed by Professor Charles Black in 1974 on the eve of Richard Nixon’s impeachment, of being “plainly wrong in themselves to a person of honor, or to a good citizen, regardless of words on the statute books.”

To find precedent for Trump’s actions, we must reach back to the darkest days of U.S. history, including internment camps for Japanese-Americans, Native American boarding schools, and slave markets. With a president who granted his very first pardon to a racist sheriff who had deliberately violated a court order to stop violating the constitutional rights of Latinos, and in an era when federal immigration enforcement agents, emboldened by Trump’s hateful rhetoric, have repeatedly detained U.S. citizens, sometimes merely for speaking Spanish, Trump’s use of what may fairly be described as concentration camps shocks the conscience.

On the surface, Trump’s policy may not resemble the types of straight-out-of-the-textbook impeachable offenses, such as receiving emoluments from foreign powers, obstruction of justice, or abuse of the pardon power, which often involve a rogue president, acting alone or with a small coterie of henchmen. Here, Trump has embroiled massive federal agencies in his unconstitutional scheme. But presidents are responsible in impeachment for the actions of their subordinates that they command or ratify, and it would be perverse to say that the president could be impeached for running a scheme out of the Oval Office, but not for implementing a policy through the apparatus of government under his command.

As noted constitutional law expert Jack Balkin once observed, “the claim that after [over two centuries] America is guaranteed to be ‘dictator-proof’ is entirely too sanguine.” The Founders provided a check against tyranny: the power of impeachment. It is time for Congress to start using it against Donald Trump.


NY Times: Congress Could Determine Trump’s Future

As reported by the New York Times, Rudy Giuliani, Trump’s lawyer, recently stated that he believes Robert Mueller intends to follow Justice Department rules that make presidents immune to indictment while in office. Traditionally, politically appointed lawyers in the executive branch have argued that the stigma and distraction of being indicted would interfere with the president’s ability to carry out his constitutional powers.

Others, such as Connecticut Senator Richard Blumenthal, have argued that presidents can indeed be indicted. Regardless, whether Mueller intends to follow this “rule” or not, it is clear that Congress and the American people will ultimately have the power to impeach Donald Trump.

We have already established eight grounds for impeachment proceedings against Trump. Members of the House have already introduced articles of impeachment. Mueller’s investigation and final report to Congress will be important to bolster these grounds, but we already have more than enough evidence to initiate impeachment proceedings.

You can call your representative and encourage them to support impeachment proceedings. Check out the following resource page for a script you can use when calling your representative’s office: Sample Script


Newsweek: Support for Trump’s Impeachment Higher Than His Approval Rating

Newsweek reports that, in a recent poll, the percentage of Americans who support impeaching Donald Trump is currently higher than the president’s approval rating.

Forty-two percent of those polled responded that they believe Trump “should be impeached,” while his approval rating was thirty-nine percent.

Not only that, but Trump is now only one percentage point away from former President Richard Nixon when it comes to the number of Americans who want him impeached. Nixon is the only president to have resigned from office, which he did in anticipation of his imminent impeachment.

The poll also showed that the majority of Americans oppose Trump’s recent claim that he has the power to pardon himself. Seventy percent of those polled reported that they would disapprove of Trump issuing himself a pardon.

Read the full article Newsweek here.


New York Magazine: Giuliani Admits ‘Spygate’ Is PR in Anticipation of Impeachment

 

During an appearance on CNN’s State of the Union, Trump lawyer Rudy Giuliani confirmed that Trump and his allies are using a “very specific, very political strategy to undermine [the Mueller] investigation” as part of a public relations campaign to stave off impeachment.

Giuliani’s comments demonstrate that Trump and his legal team are working to undermine the Mueller investigation in the eyes of the public due to their belief that impeachment proceedings could be an inevitability:

“Of course we have to [be aggressive in these attacks] to defend the president. We’re defending … um — to a large extent remember, Dana, we’re defending here … It is for public opinion. Because eventually the decision here is going to be impeach or not impeach. Members of Congress, Democrats and Republicans, are going to be informed a lot by their constituents. And so our jury is — as it should be — is the American people. And the American people, yes, are … Republicans, largely, independents, pretty substantially, and even some Democrats now question the legitimacy of [the Mueller investigation].”

Read more about Giuliani’s comments and the interview here in New York Magazine.


The Hill: Presidential historian says Impeachment will be the ‘season finale’ of Trump

In an article from the The Hill, Presidential historian Jon Meacham stated that he believes impeachment will be the “season finale” to Trump’s time in office.

Meacham compared Trump’s behavior, including his vow to ask the Justice Department to investigate whether the FBI spied on his campaign, to that of President Nixon’s behavior before his resignation from office. Meacham went on to say that Trump’s presidency will likely end the same way as Nixon’s.

“I would bet a good bit of money this is going to end up in the House with some kind of impeachment proceeding, and the makeup of that body and ultimately the reaction of the United States Senate, which is supposed to be the great deliberative check and the great final hammer on these things,” he said. “I think … that’s going to be the season finale of this.”

Read the article in The Hill here.