By William Turner
Tongues are wagging all over the republic at the news that former National Security Director Michael Flynn has entered into a plea bargain with Robert Mueller, agreeing to plead guilty to lying to the FBI – one, relatively minor, charge among the many potential charges Flynn is susceptible to according to widespread reports – in return for exactly what, we don’t know. But we can infer that he must have agreed to testify against some very big players, potentially even the president himself.
This news raises more concretely than ever before the possibility of removing Donald Trump from the presidency via impeachment. Six Democratic members of the House of Representatives recently introduced articles to do exactly that, which will not proceed until either Paul Ryan decides to advance them, or Democrats take control of the House.
It is well to note that the potential criminal prosecutions Mueller may or may not pursue are completely separate from the question of removing the president via impeachment. The standard for removing an
official is criminal – the official must have committed some crime – but the decision to initiate impeachment is unavoidably political. Congress has initiated impeachment proceedings, against a president, three times in our history, and every time the president was from the opposite party to the one which controlled Congress at the time.
That is, impeachment is not an inevitable result even if Mueller indicts the Donald.
The first relatively serious proposal to impeach Donald Trump surfaced even before Trump took office. Most people clearly know almost nothing about the process of impeachment, so it is well to review the topic.
The place to look, of course, is the Constitution.
It comes up very quickly there, in Article I, section 2: “The House of Representatives…shall have the sole power of impeachment.”
We should be clear in our terminology. “To impeach” only means to level an
accusation. If one wants to say that someone is above reproach, one may say that s/he is “unimpeachable,” meaning that no sane person would level any sort of accusation at her/him.
Article I, section 3 states, “The Senate shall have the sole power to try all impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried,
the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.”
Chief Justice William Rehnquist presided over the impeachment trial of Bill Clinton. If the Senate proceeds with an impeachment trial of President Trump, Chief Justice John Roberts will preside, assuming he does not die or resign in the interim.
“Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of Honor, Trust or Profit under the United States: but the Party
convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
So, a conviction via impeachment requires a two-thirds vote in the Senate. The penalty is removal from office and prohibition on ever serving in public office again in the United States, but the person
removed is still potentially liable for any crimes s/he may have committed, which is why Gerald Ford pardoned Richard Nixon after Nixon resigned, causing much controversy at the time.
When I taught the Constitution, I explained to my students that it is a combination of philosophical rationale, embodying mostly Lockean ideas about the correct form of government, with a catalog of complaints the colonists had against the British government they had recently thrown off, via various provisions that have the purpose of preventing those noxious practices from emerging in the new government.
One key problem with a monarch, as the colonists well knew, was that the only way to get rid of one you don’t want any more is to start a war and try to kill her/him, as the English had done in 1688 and the Americans sort of did in 1775. The Americans started the war to get free of the king of England, but no one entertained any thought of killing him. Fighting the British army — the world’s leading military power at the time — in America was one thing. Invading London to assassinate the King would have been a fool’s errand.
This point raises the important question of what constitutes sufficient grounds to impeach under the Constitution. For that, we go to Article II, which defines the Executive Branch, section 4, which reads in toto: “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.”
Note again how this language denotes the two-part process of impeachment and conviction. It clearly indicates that the standard is criminal conduct. This is an important point that often gets lost in discussions of controversial decisions by public officials, with people quick to call for prosecution of any official who does anything s/he doesn’t like.
It doesn’t work that way. It can’t. Other jurisdictions are free to do it however they like, but at the federal level in the United States, the Founders wanted a mechanism to remove corrupt officials. They recognized, however, that such power had substantial potential for abuse. If they did not specify criminal conduct, then Congress could impeach the President any time s/he did anything they did not like, which could bring government to a halt.
Insofar as the question comes up of why Nixon resigned to avoid removal from office while Bill Clinton rode the storm out, the difference is that Clinton knew the Republicans lacked a sufficient majority in the Senate to remove him, and that the decision to impeach him looked so petty and partisan that his fellow Democrats could easily resist public pressure to remove him. He stood accused of perjury and obstruction of justice, which is no small thing for the person who is supposed to run the federal government, including appointing the Attorney General and Director of the FBI, but the whole situation was too tawdry and common for anyone outside the Republican leadership in Congress to think it justified impeachment.
In contrast, Nixon resigned the day after three leading Republicans visited him in the Oval Office and told him that he would likely suffer removal from office if he went through with an impeachment trial because he had lost too much support from Republicans.
If one needs to identify some concrete difference between what Nixon did and what Clinton did, a good candidate is the fact that Nixon’s crimes involved powers that are unique to the presidency — no one else can order the CIA to ask the FBI to back off a criminal investigation for national security reasons, or, anyone can do that, but the CIA is not going to listen to anyone but the President. Anyone can get caught up in an extramarital affair, then lie about it. Nixon’s crime posed a threat to our constitutional system of government. Clinton’s was just hugely embarrassing for all concerned.
Another important point that is implicit here is that there is no mechanism to impeach a member of Congress. One often hears calls for that. It is not possible under the United States Constitution. Both
Houses have the power to expel their own members with two-thirds vote, as Article I, section 5 provides: “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.”
Finally, exiting the Constitution, as a practical matter, it seems highly unlikely that the Republicans who control Congress at the moment will have much interest in impeaching their new President, regardless of any evidence of criminal activity that may surface.
So, our best hope to remove President Trump through impeachment may lie with winning control of Congress for Democrats in the 2018 midterm elections. Democrats are not known for performing well in midterm elections, but the Party that holds the presidency usually loses seats in those elections, which is how the Republicans gained control of the House in 2010. What will happen is anyone’s guess.