The Cases For & Against Impeaching Trump PLUS History of Impeachment in US
This appeared in The Millennial Source
In mid-August, history crossed an unwelcome threshold for the Trump Administration. Over half of Democrats in the US House of Representativesnow publicly favor opening an official presidential impeachment inquiry, which could lead to President Trump’s removal from office. Democrats hold a significant majority in the House (235 out of 435 seats, one of which is vacant).
However, about 100 Democratic representatives, and two-thirds of House members overall, still either oppose impeachment or refuse to publicly support it. Those resisting a formal inquiry include Speaker of the House Nancy Pelosi, a California Democrat and by far the most powerful single member of the legislative body.
Previously, The Millennial Source looked at the threat to Trump’s presidency posed by the 25th Amendment of the US Constitution. Whereas use of that amendment rests on an assessment of the president’s capacity to fulfill the duties of the office, impeachment revolves around the legality and appropriateness of the president’s actions. In spite of Pelosi’s reluctance to use the term, Chairman of the House Judiciary Committee Jerry Nadler has already labeled his expanding investigations into Trump’s activities as an impeachment inquiry.
Pelosi has endured harsh criticism from within her own party for her opposition to impeachment, with many claiming that her stance is based solely on political calculations. Yet Pelosi knows that a rushed or highly partisan impeachment effort has never ended a presidency, and can even bolster a president’s standing in the eyes of the public. The history of US presidential impeachments hangs heavy over both the case for and the case against impeaching Trump.
The Impeachment Process
Article Two of the US Constitution states that the president or vice president “shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” The presence of the word “misdemeanors” is puzzling, since under US legal codes, a misdemeanor is a minor offense. At that, the word seems to represent the near opposite of “treason, bribery, or other high crimes”.
Legal scholars have proposed a variety of resolutions of this apparent contradiction. The general consensus is that the word “misdemeanors” was used in the amendment to refer primarily to misfeasance — using one’s lawful authority in an inappropriate or wrongful way.
In any event, the Constitution makes clear that ending a president’s term in office via impeachment is a two-step process: the impeachment itself, followed by conviction. The House of Representatives begins the process with an impeachment inquiry, conducting investigations and holding hearings in which witnesses are called in to testify.
If a substantial number of representatives conclude that there is strong evidence of high crimes on the part of the president, Articles of Impeachment are drafted. These articles are analogous to prospective charges against an accused criminal. Impeachment occurs if the House of Representatives approves one or more of the Articles of Impeachment by a simple majority vote. However, impeachment alone does not result in removal from office. It is more like an indictment — a formal charge that the president has committed a serious crime.
Any Articles of Impeachment approved by the House of Representatives are passed along to the Senate, where an Impeachment Trial occurs. The Chief Justice of the US Supreme Court (currently John Roberts) presides over the trial, which has many of the elements of a traditional criminal trial. A committee of representatives from the House serve as prosecutors, while lawyers defend the president. In order to remove the president from office, at least two-thirds of the senators (67 in the current 100-member Senate) must vote “Guilty” on at least one Article of Impeachment.
A Brief History of US Presidential Impeachment Inquiries
There have been three notable presidential impeachment inquiries in US history. In 1868, President Andrew Johnson, who had served as Abraham Lincoln’s vice president and rose to the presidency after Lincoln’s assassination, was impeached by the House of Representatives on a vote of 126 to 47.
The basis for the impeachment was Johnson’s firing of his Secretary of War, in violation of the Tenure of Office Act that Congress had passed the previous year. The law revoked the president’s power to dismiss members of the Presidential Cabinet without congressional approval. In response to Johnson’s defiance of the law, the House of Representatives referred 11 Articles of Impeachment to the Senate.
Ultimately, the Senate voted on three of the articles. In each case, the vote was 35 Guilty to 19 Not Guilty — one vote short of the two-thirds majority needed to remove the president from office. Johnson served out his term, and the Tenure of Office Act was repealed in 1887 when President Grover Cleveland challenged its constitutionality.
In the early 1970s, Congress convened hearings on Republican President Richard Nixon’s role in a break-in at the Watergate Office Building in Washington. During the break-in, burglars attempted to plant listening devices within the Democratic National Committee headquarters. Congressional hearings on the matter ultimately led to an impeachment inquiry centered on Nixon’s knowledge of the break-in, attempts to cover up the crime, and subsequent efforts to impede investigations, most famously by firing Special Prosecutor Archibald Cox.
As an increasing number of Republicans broke from the president and voiced their support for impeachment, it became clear that Nixon’s presidency would not survive a Senate trial. Nixon resigned from office on August 9, 1974, before an official House of Representatives vote on Articles of Impeachment occurred.
Democratic President Bill Clinton was impeached during his second term in office on December 19, 1998 by the Republican-controlled House of Representatives. Clinton was primarily charged with lying to conceal an extramarital affair with a White House intern. Very few people disputed that Clinton had given deliberately misleading answers when he was questioned under oath, but because the underlying issue was a personal matter, many disputed whether his actions rose to the level of high crimes.
The two Articles of Impeachment approved by the House of Representatives passed largely along party lines, with only five Democrats breaking with the president to support impeachment. In the Senate trial, one article received 50 of the needed 67 Guilty votes to remove Clinton from office, while the other received only 45. Not only did Clinton serve out the remainder of his second term, but he left office in January 2001 with a 66% national approval rating.
Officially, then, no US President has ever been removed from office. However, there is something of a technicality involved in that conclusion, since Nixon almost certainly would have been removed if he had not resigned first.
The Cases For Impeachment of Trump
As of writing, 135 (roughly 31%) of the 433 sitting members of the House of Representatives have publicly announced their support for an official presidential impeachment inquiry. All but one of them are Democrats. The remaining supporter (Justin Amash of Michigan) is a former Republican who renounced his party membership to join the call for impeachment, and now designates himself as an Independent. Many other Democratic representatives might well come on board in the event of a vote on Articles of Impeachment after current investigations are completed.
As they seek to build a case that Trump is guilty of high crimes, the Democratically controlled House committees conducting those investigations are casting a wide net. Dozens of investigations covering a broad array of activities are currently in progress, with the Trump Administrationrefusing to cooperate in most cases.
For those favoring an impeachment inquiry, the wide-ranging investigations represent no more or less than Congress fulfilling its constitutional duty to hold the president accountable. For Trump and his allies, it all adds up to unjustified harassment of the president.
Justified or not, the congressional investigations center on five main issues.
THE ROBERT MUELLER REPORT ON OBSTRUCTION OF JUSTICE
On May 17, 2017, former FBI Director Robert S. Mueller was appointed as United States Special Counsel, a position that exists for the sole purpose of investigating the president. Mueller was instructed to investigate Russian interference in the 2016 US national elections, any cooperation between Russian operatives and representatives of the Trump presidential campaign, and any efforts by the Trump Administration to impede investigations into these matters.
In March 2019, Mueller detailed his findings in a 448-page Official Report. He did not formally accuse Trump of any crimes, but as he noted in both his report and subsequent congressional testimony, US Department of Justice policies effectively prohibit leveling criminal charges against a sitting president. Responding to the report, Trump boasted that the lack of criminal charges amounted to “total exoneration”:
However, in the report, in public statements and in sworn testimony before Congress, Mueller has emphatically stated that he found no basis to exonerate Trump.
Furthermore, Mueller gathered substantial evidence that Trump deliberately acted to impede investigations into Russian election interference. As the Mueller Report notes, the US federal felony of Obstruction of Justice — essentially, making deliberate attempts to influence or impede a criminal investigation — consists of three critical elements:
- An obstructive act (any action that does or reasonably could hinder the investigation)
- A connection between the obstructive act and an official judicial proceeding
- Corrupt intent (such as a desire to impede the investigation for personal gain)
Mueller found that in as many as five separate incidents, Trump’s actions met all three of these conditions. In one of those incidents, Trump allegedly ordered White House Counsel Don McGahn to fire Mueller, then create a false record to conceal the president’s involvement and intentions. The Mueller Report states that McGahn described the incident to others by saying that the president was asking him to “do crazy s**t”.
On May 6, 2019, multiple former US federal prosecutors, both Democrats and Republicans, published an open letter on Medium. The letter states that if the individual in question were not the US President, the evidence gathered by Mueller would strongly justify a criminal indictment for Obstruction of Justice. Over 1,000 former prosecutors have now signed the letter.
POSSIBLE VIOLATIONS OF THE CONSTITUTION’S “EMOLUMENTS CLAUSE”
Prior to the Trump presidency, very few Americans knew of the obscure “Emoluments Clause” of the US Constitution. However, lawsuits against the Trump Administration for possible violations of the clause have moved the word “emoluments” from the back pages of history textbooks to the front pages of US newspapers.
For the most part, the Emoluments Clause (technically clauses, since the term appears in both Article I and Article II of the Constitution), prohibits elected officials from receiving “emoluments” (gifts) from either US government agencies or representatives of foreign governments. The clause also seems to ban elected officials from directly profiting from their positions of power, although the extent of this ban is debated among constitutional scholars.
At issue in Trump’s case is the amount of money Trump Hotels and other properties have taken in since 2016 from activities directly related to his presidency. For example, a Saudi-funded lobbyist spent over $250,000 at a Trump Hotel.
More recently, Vice President Mike Pence stayed at a Trump resort at US taxpayer expense during an official visit to Ireland. The resort is 290 km from Dublin, where the official functions took place. And in August 2019 at the G7 Summit, Trump promoted the idea of holding the 2020 Summit at his Doral Miami Resort in Florida. Congressional committees plan to investigate these and several other incidents as possible high crimes under the Emoluments Clause.
POSSIBLE FELONY CAMPAIGN FINANCE VIOLATION
On August 21, 2018, Michael Cohen, Trump’s long-time personal attorney and “fixer”, pled guilty in federal court to eight charges, including a felony violation of US political campaign finance laws. The latter violation relates to hush money paid to adult film star Stormy Daniels (legal name Stephanie Clifford) and others in October 2016. According to Cohen’s testimony, those payments were made to prevent the public from learning about Trump’s history of extramarital affairs prior to the 2016 presidential election.
Prosecutors involved in the case have stated that Cohen perpetrated the campaign finance crime “at the direction of Individual 1”. The context of the report made clear that Individual 1 is Donald Trump, as Cohen confirmed in testimony before Congress. Congressional committees are now investigating Trump’s role in the crime.
POSSIBLE ABUSES OF POWER TO PURSUE CONSTRUCTION OF BORDER WALL
As The Millennial Source previously reported, news recently broke that Trump might have encouraged officials to disregard federal laws in order to expedite construction of his promised US-Mexico border wall. A Washington Post report suggested that he told the officials he would give them a presidential pardon for any crimes they might commit as a result of his instructions.
Although White House aides later dismissed the alleged Trump remarks as a joke, Congressional Democrats plan to investigate the matter as a possible abuse of presidential power. Such an abuse could qualify as deliberate misfeasance, and hence a “high misdemeanor”.
POSSIBLE FINANCIAL OR TAX CRIMES
Although Robert Mueller never crossed Trump’s declared “red line” by investigating Trump’s tax documents or business or personal finances, Congress is proving to be less accommodating of the president’s wishes. Congressional committees have put forth official requests for Trump’s tax returns and numerous other financial documents. The Trump Administration has refused to comply with the requests, so federal courts are now reviewing the situation.
Although there is no legal requirement to do so, almost all major US presidential candidates since the Watergate scandal of the 1970s have released their tax returns as an assurance to the public that they are free from major conflicts of interest. Most candidates have released 10 years’ worth of returns. However, Trump has staunchly refused to make his returns public, claiming that he cannot do so because the returns are underIRS audit.
According to multiple sources, IRS Commissioner Charles Rettig has stated that there is no regulation prohibiting the public release of a tax returnthat is being audited. A taxpayer’s attorneys might advise against such a release, however, since having more eyes review a return increases the likelihood that errors will be found. Nevertheless, Congress has historical precedent on its side: Nixon released his tax returns in 1973 in the midst of an ongoing IRS audit, and even encouraged congressional representatives to review them.
Congressional investigators are primarily interested in three matters related to Trump’s finances:
- The extent of Trump’s financial ties to Russia. The Mueller Report noted that there were over 270 contacts between the 2016 Trump campaign and Russian individuals, operatives and government officials. However, Mueller did not find sufficient evidence to conclude that there was a criminal conspiracy to influence the 2016 election. Congressional investigators are now probing deeper into possible ties between Trump and Russia, in part because Deustche Bank — a major financial supporter of Trump’s businesses — has recently been implicated in a Russian money laundering scheme.
- Whether Trump has deep financial ties to any other foreign nation, such as Saudi Arabia. Trump has previously claimed that Saudis have spent tens of millions of dollars at his properties over the years.
- Possible financial crimes or other wrongdoing. In his congressional testimony, Michael Cohen alleged that Trump has on multiple occasions misrepresented the value of his assets to gain tax, financial or insurance advantages.
Trump Administration officials remain adamant that they will never surrender Trump’s tax or financial records to Congress. A person’s refusal to comply with a request to turn over evidence is not an indication of guilt, however. It is entirely possible that the records hold no secrets that would implicate Trump in high crimes or abuses of power.
The Cases Against Impeachment of Trump
Trump has long maintained that the entire investigation into his campaign’s ties to Russian election interference was a “witch hunt”. Since his first days in office, he has sounded a refrain of “no collusion” between his organization and Russia, and insisted that the Mueller probe was politically motivated.
Although Mueller did not gather sufficient evidence to prove a criminal conspiracy, his documentation of hundreds of contacts between the Trump campaign and Russian entities casts serious doubt on the “no collusion” claim.
Furthermore, to date, the Mueller investigation has yielded criminal indictments against 34 American and Russian individuals and three companies, along with eight convictions. Some legal proceedings related to the indictments, including the trial of Trump associate Roger Stone, are still in progress. In short, as many commentators have observed, if the probe was a witch hunt, then America and Russia have a lot of witches.
Nevertheless, Trump continues to assail all investigations into his actions as corrupt and wholly political. Congressional Republicans echoed Trump’s “investigate the investigators” theme during Mueller’s congressional testimony. Many Republicans questioning the origins of the Mueller probe have zeroed in on 2016 text messages between FBI Agent Peter Strzok and agency lawyer Lisa Page. In the messages, Strzok and Page ridiculed Trump and expressed strong opposition to his potential presidency.
On the surface, the motivations behind the Mueller investigation would seem far less important than the evidence Mueller gathered. However, attacking the investigators might ultimately be part of a more sophisticated legal strategy. If Trump’s attorneys can cast doubt on the legitimacy of the investigations, then they could make the case that any actions he took to impede them were actually an effort to uphold his oath to faithfully execute the laws of the land.
It is also reasonable to assume that lawyers for Trump are withholding their strongest legal arguments for now, keeping them in reserve in case a Senate Impeachment Trial occurs. In the end, they would only need to convince 34 of the 100 senators to vote Not Guilty in order for Trump to remain in office.
Meanwhile, members of both major parties have political incentives to resist proceeding with an impeachment process. Republicans in Congress have good reason to fear backlash from their own party if they engage in impeachment proceedings. They have already seen the example of Amash, who felt compelled to leave the party in order to voice his support for impeachment.
On the other side of the political divide, Democrats with a strong awareness of history know that the highly partisan impeachment of Bill Clinton in 1998 ended up enhancing Clinton’s popularity. Given how fiercely loyal Trump’s Republican base is already, giving a boost to the president’s low national approval ratings is a risk that many Democrats, including Pelosi, are unwilling to take. At present, Pelosi continues to advocate continuing investigations without a formal impeachment inquiry.
Pelosi knows that Nixon’s presidency was not undone by a vast and ongoing pattern of wrongdoing, but by a single piece of evidence that Americans simply couldn’t ignore. Tapes that the White House turned over to Congress under a court order showed the president discussing blackmail and ordering aides to destroy evidence, all while using coarse, offensive language.
Without such dramatic evidence against Trump to galvanize public support for impeachment, any Articles of Impeachment approved in the House would almost certainly fail to receive the needed 67 Senate Guilty votes. For this reason, many congressional Democrats remain more focused on the 2020 national elections than on the impeachment process.
Up next: Trump’s prospects for re-election in 2020, including how he currently stacks up against leading Democratic candidates. (Subscribe to stay in the loop!)