Donald Trump’s impeachment trial is already unfolding as a Mitch McConnell-coordinated farce. This week on Intercepted: The charges against Trump are serious, but they raise the question of why Congress has never impeached a president for war crimes. None of the three Senate trials of a president was for imperial crimes committed in plain sight, despite a long history of presidents invading countries, killing civilians, and torturing prisoners. Constitutional and international law scholar Marjorie Cohn discusses the trial of Trump, the refusal of lawmakers to prosecute war crimes, and presents the case that Trump should be impeached for assassinating Iranian Maj. Gen. Qassim Suleimani in Baghdad. This month marks 29 straight years that the U.S. has been bombing Iraq. Joe Biden, who proactively aided and abetted the Bush administration’s drive for war, has been openly lying about his record, but Bernie Sanders also has some serious questions he needs to answer about his own support for regime change, missile strikes and deadly economic sanctions. Jeremy Scahill and Sam Husseini, of the Institute for Public Accuracy, present a thorough history of both candidates’ records on Iraq over the past three decades.
Kathleen Kingsbury: The editorial board is in the opinion department. We are completely separate from the facts. We invite all the candidates to New York and we interview them and then finally we make a decision. So, Senator Sanders, thank you so much for coming. We all know your bio. We’ve watched the debates, the —
Bernie Sanders: Look, I don’t tolerate bullshit terribly well. It’s just not my style.
KK: Thank you very much for coming.
BS: Thank you very much.
Amy Klobuchar: This is more people than the Des Moines Register board.
KK: Why don’t talented people want to continue to work for you?
AK: I am someone that has a record of a dysfunctional work environment.
KK: Thank you so much, Senator, for coming.
AK: Thank you.
Aisha Harris: How do you counter the Mayo Pete memes? Are you familiar?
Pete Buttigieg: It’s part of what this bullshit campaign means. And I’m very mindful of that.
KK: All right, thank you very much.
PB: Thank you very much.
Elizabeth Warren: Hi!
KK: We don’t have very much time so you don’t mind if we just jumped right into questions?
EW: Of course not. Who have we got here so far? Skyler?
EW: Good to see you. Who else have we got? Kenny? Is that right? Kenny and the boys?
Charlie Warzel: How do you first —
EW: Hold on a sec, I’m gonna get me a beer. You want a beer?
Bruce Mann: No, I’ll pass on the beer for now.
EW: You sure?
KK: Thank you so much for coming.
EW: Thank you for having me.
Joe Biden: Hi. How are you?
KK: Are you too old to be running for president?
JB: Nah. I ain’t dead. I’m probably in real trouble after this interview. But thank you very much for having me.
KK: Thank you.
KK: In this election, Democratic voters face a choice. But in this perilous moment, we are breaking with convention and putting our support behind Elizabeth Klobuchar.
Jeremy Scahill: This is Intercepted.
JS: I’m Jeremy Scahill coming to you from the offices of The Intercept in New York City and this is episode 113 of Intercepted.
Donald J. Trump: To embrace the possibilities of tomorrow we must reject the perennial prophets of doom and their predictions of the apocalypse.
JS: The trial of Donald Trump is underway in the U.S. Senate and it is clear that Mitch McConnell is intent on making it an absolute kangaroo proceeding. What the Senate is technically doing this week — or supposed to be doing — is focusing narrowly on two articles of impeachment for abuse of power and obstruction of Congress. The abuse of power article centers on President Trump’s attempt to solicit and pressure Ukrainian President Volodymyr Zelensky to investigate — and publicly announce that investigation — into Trump’s political rival, Joe Biden. Donald Trump had withheld Congressionally-approved military aid to Ukraine in an effort to pressure Zelensky to comply.
The second article of impeachment for obstruction of Congress lays out how Trump allegedly directed officials to defy subpoenas sent from the House of Representatives as they sought to investigate Trump’s actions.
House Democrats clearly saw the July phone call with Zelensky as the tipping point in making the case for impeachment. Barring some sort of strange miracle or enough Republican senators somehow finding their ability to call facts facts, Donald Trump appears headed for technical victory here. We shall see.
But there is a much larger context to discuss this week as we watch the third Senate impeachment trial in U.S. history unfold. Why are these the kinds of issues that lawmakers choose to focus on, while ignoring the massive crimes committed by presidents in plain sight? U.S. presidents from both parties have committed war crimes repeatedly, yet we have never had the impeachment of a president for any of those, including Andrew Johnson, Bill Clinton, and Donald Trump.
But it is important to know that there have been attempts by brave and principled lawmakers to do just this.
House Speaker Nancy Pelosi, who led the House impeachment of Trump repeatedly waved off demands to impeach George W. Bush for lying to the U.S. public and invading and occupying Iraq. But Representative Dennis Kucinich read 35 articles of impeachment against Bush into the record in 2008, while being ignored by the majority of the Democratic party at that time.
Dennis Kucinich: Both personally and acting through his agents and subordinates, together with the vice president, illegally spent public dollars on a secret propaganda campaign to manufacture a false cause for war against Iraq.
JS: A year earlier in 2007, Kucinich had introduced an impeachment resolution against Vice President Dick Cheney. That too, ultimately failed because it did not have the support of Democratic House leadership.
In the 1980s and 90s, Texas Democrat Henry Gonzalez led multiple impeachment efforts, including against Ronald Reagan for the invasion of Grenada in 1983 and Iran Contra and also against George H. W. Bush for the 1991 Gulf War.
Henry Gonzalez: And I want to remind my colleagues, that I was the only one to introduce an impeachment resolution on Mr. Reagan.
Today I exercise this constitutional right and responsibility to speak out in opposition to war in the Middle East, and in support a removal of our nation’s chief executive.
JS: In April of 1952, there were actually three days of debate about impeaching Truman for actions related to the Korean War. There was talk of impeaching Nixon over Vietnam and the secret war in Cambodia. And even further back in history, there were some efforts to impeach President James Polk for misleading the American public about the Mexican-American War.
Without a doubt, it is important that we weigh the specific evidence against Donald Trump in this current trial. At the same time, the nature of these charges raise serious questions about the priorities of lawmakers not just now, but throughout U.S. history.
Law Scholar Marjorie Cohn on Trump, Impeachment, and War Crimes
So, to discuss all of this, I am joined now by Marjorie Cohn. She is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and former deputy secretary general of the International Association of Democratic Lawmakers. Her latest book is, “Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues.” Marjorie Cohn, thanks very much for joining us on Intercepted.
Marjorie Cohn: Thanks so much for having me, Jeremy.
JS: I want to just ask you at the onset, what you make of the actual articles that were delivered to the Senate in this array of actions that Trump has committed as President of the United States? What is your assessment of what the Democrats chose to move forward on?
MC: They made a very calculated decision to narrow it, to keep it nice and bite sized so that the American people could understand it. So, they limited it to the Ukraine situation. I have gone back and forth about whether they should have broadened it. And certainly, there’s a long list of impeachable offenses that Donald Trump could have been charged with, but I understand politically why they limited it. Now, they do not charge a crime — a violation of a statute — and that’s basically Trump’s defense. Alan Dershowitz has been all over the airwaves, saying, well, abuse of power is not a crime.
Alan Dershowitz: Well, but abuse of power, even if proved is not an impeachable offense. That’s exactly what the framers rejected. They didn’t want to give Congress the authority to remove a president because he abused his power.
MC: He obviously has not read the Federalist Papers or Alexander Hamilton, which makes very clear that impeachment is a political process and abuse of power was alleged against both Clinton and Nixon in their impeachment proceedings.
JS: In addition to not reading those Federalist Papers, Alan Dershowitz also may not have listened to this guy during the Clinton impeachment named Alan Dershowitz who was making the exact opposite point.
AD: If you have somebody who completely corrupts the office of president and who abuses trust, and who poses great danger to our liberty, you don’t need a technical crime. We look at their acts of state. We look at how they conduct the foreign policy. We look at whether they tried to subvert the Constitution. The way Iran-Contra did by going behind —
MC: So he’s saying he’s an expert on the Constitution. And if Alan Dershowitz is an expert on the Constitution, then I’m an expert on nuclear physics, quite frankly.
JS: If we had an actual fair jury, and Mitch McConnell has openly communicated that he basically is not going to be conducting this trial in anything resembling an impartial way.
Mitch McConnell: And everything I do during this, I’m coordinating with the White House Counsel, there will be no difference between the President’s position and our position as to how to handle this.
JS: But if that wasn’t an issue, and this was going to an impartial jury that was just going to weigh the facts, based on what already is in the public domain, is it your assessment that these are legitimately impeachable offenses that are being alleged against the president?
MC: A, they’re legitimately impeachable offenses and B, there is sufficient evidence to support these particular allegations, the articles of impeachment. And by the way, I want to say one thing, Jeremy, and that is that I’ve been a criminal defense attorney for many years, and I have never seen a situation where the court, the jury, and the judge walk in lockstep with the defendant, get his input on the the strategy, swear not to be impartial or say they’re not going to be impartial and then announce a not guilty verdict before the trial. It’s just unheard of.
And I think that Nancy Pelosi waiting a month to deliver the articles of impeachment, I think that was very savvy because that gave time for the American people to understand how McConnell and the Republicans in the Senate are really trying to have a kangaroo court just rushed through an acquittal and newly discovered evidence is coming out every day. And now I know that the polls show that a majority of the American people want to see witnesses. They think that this is a trial and there should be witnesses. Yes, I think the articles are more than supported by the evidence that we’ve seen already. And that’s not including the most recent evidence from Lev Parnas —
Lev Parnas: President Trump know exactly what was going on. He was aware of all my movements. I wouldn’t do anything without the consent of Rudy Giuliani or the president. That’s the secret that they’re trying to keep. I was on the ground doing their work.
MC: The GAO report saying in fact, Trump did commit crime. His administration did commit a crime when they withheld the military assistance from Ukraine that Congress had appropriated. So, there is a crime there. It just hasn’t been specifically alleged as an article of impeachment.
JS: You know, Trump’s legal team, in addition to Alan Dershowitz, although Dershowitz would say, “I’m not part of the legal team. I’m just making an argument about the Constitution.” But setting that aside, you also have people like Ken Starr, and then people that have been day in, day out working for President Trump, what we know thus far about their position, and what they are sort of telegraphing their response is going to be boils down to saying, you know, this is flimsy, he did nothing wrong. That part of it we’ve been hearing from pundits and Republican lawmakers, but also this argument that removing him from office, even in the case of a conviction would be unconstitutional.
AD: One of the major issues was a president would become incapacitated. Madison talked about that. Governor Maurice talked about that. And that was a good reason for having impeachment. You don’t want an incapacitated president.
JS: What are you reading into what they’re trying to lay the groundwork for here?
MC: They really don’t have a leg to stand on in refuting the facts because it’s a pretty airtight case. And so they’re attacking the procedure which is what the Republicans did in the House during the impeachment inquiry.
Jim Jordan: We’ve already had the most unfair process I’ve ever seen on the House side. Republicans weren’t weren’t given subpoena authority. The President had no due process. He couldn’t cross examine witnesses. Adam Schiff prevented witnesses —
MC: But by saying that removal from office would be unconstitutional means they haven’t read the Constitution, because the Constitution says very clearly that the House shall have the sole power of impeachment and the Senate shall have the sole power to try impeachments and to convict and remove a president from office. And that’s why the founders put impeachment six times into the Constitution to check and balance the executive. If they thought that the next election was enough, why even have impeachment? So, I think that that article is going to fail. Now, of course, it’s a political issue of, you know, what the senators do and they seem to walk in lockstep with Trump.
And in the Mueller report, Mueller — who in my opinion, was overly cautious, you know, in not actually coming to a conclusion on whether Trump obstructed justice because the Office of Legal Counsel of the Department of Justice had issued two memorandum saying that a president cannot be tried for criminal offense while in office. But Mueller did lay out 10 grounds for obstruction of justice, and then at the end of that said, and now basically, the ball is in Congress’s court and what he was talking about was impeachment.
JS: One question that I think a lot of people who are critics and have followed U.S. foreign policy and are aware of the history of the various wars, and the assassinations and regime changes often ask is why don’t we ever see any real meaningful moves to bring articles of impeachment against a president for war crimes or imperial crimes or unlawful or illicit interfering in the affairs of other countries through force or economic weaponry?
MC: Well, that’s a good question. You also don’t see the Congress passing a resolution forbidding the use of military force under the War Crimes Resolution. We actually did have one regarding Yemen and ultimately, Trump vetoed it. And now we have pending with the Iran situation, a concurrent resolution passed by the House, saying that Trump has to, you know, stop any kind of military action against Iran unless and until Congress agrees, or there’s an imminent threat. That’s in the Congress under the War Powers Resolution. The War Powers Resolution was passed in 1973, after the Vietnam War, another war that the Americans were lied into, just like the Iraq War. And the Congress said, we want to take back the war-making power because Article One of the Constitution says Congress has the power to declare war, not the President, but Congress. Article two, which Trump relies on, he says, I’m commander in chief and I can do whatever I want.
DJT: Also, someday, you ought to read a thing called Article Two, read Article Two which gives the president powers that you wouldn’t believe but I don’t even have to rely on Article Two. There was no crime. There was no —
MC: Article Two does not give him the power to declare war. It gives him the power as commander in chief to carry out the order of Congress if and when Congress does declare war.
JS: We all know that Donald Trump ordered the assassination of General Qassim Suleimani and also killed in that strike was Abu Mahdi al Muhandis. That is just the latest episode where Donald Trump has openly celebrated what some would say is a violation of international law. But on its facts alone, is there something there that could be pursued again, if we had the kind of politicians that were interested in this, with reason to pursue impeachment articles against Trump for this assassination?
MC: Yes, and there’s a crime. Dershowitz wants a crime. There’s a crime. It’s called the War Crimes Act. It’s a federal statute and this is a war crime. What Trump did was to mount a crime of aggression, as defined by the International Criminal Court. There are two different ways that someone can commit the crime of aggression: first, bombardment by the armed forces of a state against the territory of another state. And the other way that an individual can commit aggression under the Rome Statute for the International Criminal Court is the use of armed forces of one state which are within the territory of another state with the agreement of the receiving state in contravention of the conditions provided for in the agreement.
Well, Iraq and the United States have a joint military agreement that governs the stationing of U.S. troops in Iraq. And Iraq’s acting Prime Minister called the U.S. bombing a flagrant violation of the conditions of that agreement. And in fact, the Iraqi parliament voted that the U.S. forces must leave. Well, the U.S. forces said, we’re not going to leave. We’re going to stay here. And that in my book is an illegal occupation. So, if Congress wanted to do its job and use the war crimes statute, and guess how many times the war crimes statute has been used, Jeremy? Zero, zero times. Never. It’s on the books, just like the torture statute is on the books which torture also constitutes a war crime. And we saw torture throughout the Bush administration and we saw torture during the Obama administration with the force feeding of prisoners at Guantanamo, which amounts to torture.
JS: Well, we also saw Donald Trump on the campaign trail threatening to murder the families of people that he determines to be terrorists. I mean, he openly has promised war crimes, also threatening to destroy cultural sites in Iran. I mean, he’s often announcing that he will do these things.
MC: That’s right. And under the Geneva Conventions, you can’t target civilians. That is a war crime. It’s also a war crime under the Rome Statute for the International Criminal Court.
JS: The United States is not a party to the Rome Statute.
MC: That doesn’t matter. The court could still take jurisdiction over nationals of the United States in two instances: one, if they were found on the territory of a country that is a party to the Rome Statute or two — and this is, you know, hell would freeze over first — the Security Council could sanction a prosecution.
JS: Right, and the United States, of course, has veto power. On that issue of the Rome Statute and the International Criminal Court, it’s also the case that bipartisan legislation passed in the early 2000s that was referred to as the Hague Invasion Act that essentially said, “Look, if any U.S. personnel are taken there, that the President is authorized to use any means necessary to liberate Americans accused of war crimes.”
MC: And the other thing that the United States did under the Bush administration was to basically blackmail about 100 countries with developing economies, weak democracies, who were parties to the Rome Statute saying that if you turn over a U.S. National to the International Criminal Court in The Hague, Netherlands, we will withdraw foreign aid.
JS: Right, and again, I point out that there was bipartisan support for this because, you know, there have been questions also about Democratic presidents. I remember when Bill Clinton initiated the bombing of Yugoslavia in 1999 for 78 days — even though the United Nations had explicitly not signed off on it — that there were lawyers who were making an argument based on the War Powers Act, but also saying that this can be impeachable conduct. This isn’t just rabid Republicans there have been establishment Democrats that also have adopted this position throughout history that basically there’s one set of rules for the Yugoslavias and Rwandas of the world, or anyone we say is an enemy or a sort of banana republic and then there’s another set of rules for the United States and its allies.
MC: Absolutely, I really think we shouldn’t go any further in this conversation without mentioning the United Nations Charter, which is the granddaddy or grandmother of all treaties, and treaties under the Supremacy Clause of the Constitution constitute the supreme law of the land. So, the U.N. Charter is part of U.S. law. It’s not out there in the stratosphere international law. It binds us and the U.N. Charter says that no country can use military force against another country unless the Security Council agrees, as you said, or if it’s acting in self defense. And what Trump has done with the killing of Suleimani is to stretch that concept or attempt to stretch that concept of self defense to say, well, he was planning imminent attacks. Although there was never any evidence of any imminent attack. And so you see repeatedly, the United States violating the UN Charter. Bush in his illegal invasion and regime change in Afghanistan and in Iraq. Obama with his illegal drone strikes in seven different countries. Trump in Iran with the killing of Suleimani, killing civilians in Afghanistan.
And then the other thing that we need to mention here is that under the Rome Statute and under ordinary criminal law, the United States and U.S. officials who were involved in this, in prosecuting these actions are also guilty of aiding and abetting war crimes, and that is a separate ground for liability under the Rome Statute: aiding and abetting Turkey’s war crimes in Syria, aiding and abetting Saudi Arabia’s war crimes in Yemen, aiding and abetting war crimes in the Philippines against their own people, aiding and abetting Israel’s war crimes against the Palestinians, attempting a coup in Venezuela — highly illegal and also illegal under the International Covenant on Civil and Political Rights.
It’s because this administration has so little regard for the law. We’re seeing this in the impeachment proceeding. But when we look at what Trump has done in the last three years in the areas of foreign policy — and this doesn’t even get into the Emoluments Clause and all the other corruption — he has, first of all, he doesn’t read, so he doesn’t even read the law. And he surrounds himself with “Yes” men who have no regard or respect at all for the law.
JS: In the case of Nancy Pelosi, when she became speaker, the first time of the House in 2007, she very publicly squashed every effort to hold the Bush administration accountable for the war in Iraq. And Pelosi said at the time, “Democrats have no interest in impeaching Mr. Cheney or President Bush over the Iraq War.” In 2014, she said —
Nancy Pelosi: And the reason, to get back to your question, I did not encourage those who wanted to move to impeach the president, although they had an argument, was that it wasn’t something that I wanted to put the country through.
JS: And then at a CNN Town Hall in 2019, Pelosi said she knew that Bush lied.
NP: But having said that, it was in my view, not grounds for impeachment.
JS: What is your response to the positions, Pelosi took first time around as Speaker of the House on Bush, Cheney and impeachable offenses?
MC: You know, she really has provided leadership for not holding them accountable and been very conservative and very cautious. In fact, the Ukraine scandal had to be in her face documented, signed, sealed and delivered before she’d even agree to pursue impeachment. It had to get that bad. Although she certainly has played a constructive role recently, with the impeachment proceeding, she has played a very unconstructive role, in fact, very damaging role since she became Speaker of the House initially in not bringing this issue, the issue of illegal wars, war crimes, torture to the floor of the House, and that’s that’s really despicable.
But I think there just has not been an appetite for impeachment of any president from George H.W. Bush to Bill Clinton. Well, actually Bill Clinton was impeached. What? For lying about sex under oath in front of a grand jury. You know, compare that, that is a federal crime, but compare that with what Trump has done with withholding military aid, basically, blackmailing threatening the President of Ukraine. You’re not going to get a high level White House meeting. You’re not going to get this military assistance unless you agree to announce spurious investigations into Donald Trump’s political enemies. I just don’t think there’s much comparison between that and lying about sex.
JS: I agree with you that that is an apt comparison between what was Clinton charged with versus what is Trump charged with. But in a way, I think a more apt comparison would be to say, look what Clinton was impeached for, instead of bombing Iraq on average once every three days, under the guise of the no-fly zones implementing the most brutal regime of economic sanctions in history in Iraq. I mean, part of the reason I wanted to talk to you, and you’re prosecuting this well, is because when we look even at the facts of Trump/Ukraine, that you’re laying out, in a way it pales in comparison to the epic crimes that are committed by commanders in chief over and over and over again, often to the sounds of trumpet and applause at their States of the Union rather than, hey, wait a minute, you may be violating international law or committing war crimes in the name of the American people.
And Marjorie, as I was preparing to talk to you, I was recalling that this month marks 29 straight years that the United States has been bombing Iraq. Twenty-nine straight years. And it seems as though there is no chance that any U.S. officials except the low-ranking soldiers that were prosecuted over Abu Ghraib, that no one is going to be held accountable for these crimes. How do we stop this pattern where you have a handful of lawmakers that get it, but it’s never going to go anywhere? In your view, how does this change? How do we become a nation that takes seriously the imperial crimes of our most senior officials?
MC: I think the reason that Congress has been so hesitant to put the brakes on any of these illegal wars and torture and war crimes is that they view it as being very unpopular. You know, when the U.S. is in a war — and I think that Trump was banking on this too, you know, he’d be a tough guy and kill Suleimani and and kill other people, and that would distract from impeachment. And so, when the United States is involved in a military conflict and U.S. troops are there, even if they’re there, you know, remotely with drones, you know, rally around the flag and there’s a lot of propaganda that you see. And one thing I do want to say about Iraq and holding people accountable is that in 2013, a woman named Sundus Saleh, an Iraqi woman filed a lawsuit against George W. Bush, Dick Cheney, Donald Rumsfeld, Condoleezza Rice, and Paul Wolfowitz, alleging that they had committed an illegal crime of aggression in Iraq. And in 2017, the lawsuit was ultimately dismissed by the Ninth Circuit Court of Appeals on jurisdictional grounds.
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