The Road to Impeachment

On Saturday, the sitting president of the United States of America seemingly accused his predecessor of personally orchestrating a criminal conspiracy to wiretap his phones. On Sunday, FBI Director James Comey privately urged the U.S. Justice Department to denounce the accusation because it denigrates the civil servants working at the FBI accused of participating in the crime.

If true, Trump’s assertions would constitute the most damning political crime in modern American history. However, the White House has failed to put forth any evidence whatsoever to substantiate the incredible claims.

The most likely scenario here is that the man who publicly claimed that the first black president of the United States was a Kenyan-born Muslim, that the California drought was really a plot put into action by environmentalists trying to save a tiny fish, that global warming is a Chinese hoax, and that 3 to 5 million undocumented immigrants illegally voted in the 2016 elections is peddling yet another crackpot conspiracy theory. Seemingly on a daily basis, Donald Trump’s flailing incompetence further denigrates the Office of the President of the United States.

With this is mind, I turn to a question many progressives have been asking themselves in recent weeks: what does the road towards impeachment and removal look like? In short, it’s a long one. Let’s start with the constitutional text, and then we’ll turn to the process itself.

The United States Constitution says that:

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.

“Treason”, “bribery”, and “misdemeanors” are easy to define. The meaning of “high crimes” is a little less obvious. Contrary to what the modern reader might think, the term “high crimes” does not refer to felonies or even necessarily to actual crimes. Rather, it’s an antiquated term that essentially means abuse of power by an officeholder.

There are at least three potential high crimes that may fit the bill for getting Trump out of office: violation of the Emoluments Clause, possible cover up of campaign communications with Russia, and old-fashioned self-enrichment.

The Emoluments Clause is a part of the Constitution which states:

[N]o Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

In essence, it’s an anti-bribery provision.

The Emoluments Clause may prove fertile ground for impeachment because Trump has broken his promise to leave his “great business in total”. Instead, he created a trust for his business holdings that exists for his sole benefit while also maintaining the authority to fire the trustees (one of whom is his son) at any time. It is almost unfathomable that foreign governments and agents wouldn’t be tempted to offer favorable business treatment to Trump with his ownership or control of an estimated 500 businesses in more than two dozen countries around the world.

Another path towards impeachment passes through Moscow. American intelligence officers have leaked that British and Dutch intelligence agencies have information about meetings in European cities between Trump associates and Russian officials. CNN even reported that the communications were “constant”. Indeed, the New York Times also reported that, “American intelligence agencies had intercepted communications of Russian officials, some of them within the Kremlin, discussing contacts with Trump associates.”

While the substances of those conversations have not been disclosed, various agents of the Trump Administration have adamantly denied that those communications ever happened. If the leaks are substantiated by solid evidence, such as transcripts of conversations, the Trump team will find themselves in a very precarious position.

Already, the controversy surrounding Attorney General Jeff Session’s potential perjury at his confirmation hearing has cast the Administration’s various denials into serious question. While under oath, Sessions volunteered that he was a Trump surrogate and had never communicated with the Russians even though he met the Russian ambassador twice while the campaign was in full swing. If this scandal ends in proof that the president tried to cover up the unseemly contacts with Russia, lawmakers could invoke the Impeachment Clause as it would certainly qualify as a high crime.

But the road to impeachment doesn’t even need to involve foreign entanglements and spycraft. The term high crimes, essentially malfeasance by an office holder, can be be interpreted to encompass self-enrichment generally. Just six weeks into his presidency, Trump has signed off on an executive order to review a regulation that protects small bodies of water from pollution and development, a move that would benefit golf course owners like himself.

We’ve certainly come a long way from the days when President Jimmy Carter felt compelled to put his peanut farm into a blind trust for fear of the appearance of impropriety. Thus, what’s needed now is a change in the zeitgeist. That must be kept in mind as we turn now to the process of impeachment and removal.

“Impeachment is not a legal process. It’s a quasi-legal process, but it’s primarily a political process . . . . It’s not going to happen until the political process reaches that stage,” explained former Nixon White House counsel John Dean during a recent interview.

Reaching that stage would likely be a long slog. Remember though that it took about 900 days for Nixon to ultimately resign after the botched burglary at Watergate complex. The Judiciary Committee of the U.S. House of Representatives didn’t pass articles of impeachment (the first step before a full vote before the House) until after the release of the infamous “smoking gun” audiotape, during which Nixon was recorded conspiring to have the CIA pressure the FBI to back off its investigation of the Watergate burglary.

Ultimately, six Republicans joined with the Democratic majority on the Judiciary Committee to pass the articles because Nixon had lost support within his own party. Conversely, Trump currently enjoys high levels of GOP voter support. Even though various polls show that Americans disapprove of Trump’s job performance by between 43 and 56 percent, a McClatchy-Marist poll conducted in mid-February shows that 80 percent of Republicans don’t think Trump has done anything wrong when it comes to Russia. Indeed, a mere 7 percent of the GOP base believes he did something even unethical. The amount that thinks he engaged in illegal wrongdoing: a measly 2 percent.

With Republicans in control of both houses of Congress, it seems very unlikely that Democrats can secure Trump’s impeachment and removal in the immediate term absent an incredibly significant turn of events like ‘smoking gun’ evidence of collusion between the 2016 Trump campaign and the Russian government.

The Democrats’ best hope would be to win at least the House in the 2018 midterm elections. However, even if the Democrats control the House, they would obviously still need evidence of Trump’s wrongdoing to prevail in removal or even impeachment. To that end, they have several options. One way is to investigate through the U.S. House Committee on Oversight and Government Reform. That committee has the awesome power of subpoenas, with which Democrats can launch real investigations into Emoluments Clause violations, Russiagate, or instances of self-enrichment. Another option for a Democratic-controlled House would be to form select committees to investigate, much like Republicans did in 2014 to investigate the Benghazi terrorist attack that they failed to pin on Hillary Clinton. Still another option is to create an independent nonpartisan committee akin to the 9/11 Commission complete with non-political experts in areas such as Russian foreign affairs and cybersecurity.

The problem for the Democrats is that even if they succeed in impeaching Trump in the House, the matter would then move to the Republican-controlled Senate for a trial. Democrats are looking at an unfavorable 2018 election map when it comes to trying to take control of the Senate. If Trump continues to enjoy high favorability numbers among GOP voters, the result could be a mirror image of what happened to Bill Clinton after he was impeached by the Republican-controlled House and then acquitted after trial in the Democratic-controlled Senate. Note that two-thirds of the senators present must vote “guilty” to remove the president.

What is needed is a sea change. With Republicans in control of the White House, the House, the Senate, and nearly two-thirds of state legislatures, Democrats are at their lowest political point in more than a century. The game plan for progressives who see Trump as an existential threat to the Republic should be to take control of the House, rigorously investigate the scandals besieging the Administration, and proceed based on the information garnered through investigation. By bringing Trump’s unsavory misdeeds to light so that independents and Republican moderates can’t ignore them, Democrats must make it tenable for a portion of Senate Republicans to vote to remove him.

There is hope that the tide may change. A recent CNN/ORC International poll found that 65% of Americans believe a special prosecutor should be appointed to look into contacts between the Russians and the Trump campaign.

What Democrats need now is the time, energy, and organization to make that happen. With the future of the nation at stake, they may have little choice.

3/12/2017- This post has been edited from the original as I added an explanation that two-thirds of present senators must vote “guilty” to remove a president.

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