What would happen if Donald Trump
were impeached?
The latest whirlwind of news about
Trump, Comey and Russia has again stoked the chorus for impeachment. Here’s how
it might happen
Tom McCarthy in New York
Tuesday 16 May 2017 15.59 BST
Around midday on Monday, Congressman Al Green, a Democrat
from Texas, held a press conference to call for the impeachment of Donald
Trump. The firing of FBI director James Comey, Green said, was an obstruction
of justice falling clearly into that basket of “high crimes and misdemeanors”
prescribed in the constitution as grounds for impeachment.
Green should have waited a day. Because by the time the sun
went down on Tuesday , advocates for Trump’s impeachment had a lot more to work
with.
On Tuesday evening, the New York Times reported that Trump
asked former FBI director James Comey to drop an investigation into former
national security adviser Michael Flynn. “I hope you can see your way clear to
letting this go, to letting Flynn go,” Trump said to Comey, according to
Comey’s notes on the meeting. “He is a good guy. I hope you can let this go.”
The White House denied the report, which was subsequently
confirmed by numerous media outlets.
The Comey news broke before Washington had a chance to catch
its breath from Monday’s shocking revelation. Late on Monday afternoon, the
Washington Post reported that Trump had divulged highly classified material to
Russian diplomats in an Oval Office meeting last week – material so sensitive
that homeland security officials scrambled to place calls to US intelligence
agencies afterwards to warn them that the information had leaked, via the
president’s mouth, to Moscow.
Trump told Russian foreign minister Sergei Lavrov and
ambassador Sergey Kislyak about spying by an unnamed US partner that had
revealed an alleged Islamic State plot involving laptop computers and
airplanes, the Post reported.
The White House trotted out national security adviser HR
McMaster on Monday evening to call the Post report “false” – but then the
president, on Tuesday morning, as much as confirmed it on Twitter, although he
did not specify the information was classified.
“As president I wanted to share with Russia (at an openly
scheduled WH meeting) which I have the absolute right to do, facts pertaining …
to terrorism and airline flight safety,” Trump wrote. “Humanitarian reasons,
plus I want Russia to greatly step up their fight against Isis and terrorism.”
The episodes have once again stoked the chorus calling for
the impeachment of Trump, a chorus that has steadily built over the four months
of the Trump presidency.
Some Democratic lawmakers immediately questioned the
legality of Trump’s alleged statements to Comey, with Senator Dick Durbin
saying it “again appears to cross the line into the obstruction of justice”.
Elijah Cummings, a top congressional Democrat, said, “clearly we’ve got a
smoking gun and a lot of dark smoke.”
As for Monday’s bombshell, legal analysts say that Trump is
correct in noting his “absolute right”, as president, to share information as
he pleases. The president’s discretion overrides any categorical
classification, and there has been no assertion that Trump broke a law by
allegedly sharing the information.
The president may, however, have broken his oath of office,
according to analysis at Lawfareblog, whose top six analysts joined in a byline
to write: “It’s very hard to argue that carelessly giving away highly sensitive
material to an adversary foreign power constitutes a faithful execution of the
office of president.”
The blog notes that allegations of oath violations have been
central to every previous case of impeachment or near impeachment.
“Let’s not minimize it,” legal scholar Alan Dershowitz said
on CNN late Monday. “Comey is in the wastebasket of history. Everything else is
off the table. This is the most serious charge ever made against a sitting
president of the United States. Let’s not underestimate it.”
The case against Trump was, to some minds, already strong. A
campaign is under way to impeach Trump for allegedly violating constitutional
bans on receiving certain gifts. Others have argued for an arcane application
of constitutional law under which the vice-president and cabinet together might
declare the president unfit to serve.
Green was not alone in seeing the firing of Comey as the
last straw. As FBI director, Comey was leading an investigation into alleged
ties between the Trump presidential campaign and Russian operatives. Trump told
interviewer Lester Holt last week that the Russian investigation was on his
mind when he fired Comey.
“And in fact when I decided to just do it, I said to myself,
I said ‘you know, this Russia thing with Trump and Russia is a made-up story,
it’s an excuse by the Democrats for having lost an election that they should
have won’,” Trump said.
To many ears, the lines were a blank admission of
obstruction of justice à la Nixon. In a Saturday Night Live parody of the
scene, Holt, played by Michael Che, stops the interview to ask his production
team: “So … did I get him? Is this all over?” Holt listens to his earpiece.
“No, I didn’t? Nothing matters? Absolutely nothing matters any more?”
Two presidents, Bill Clinton (1998) and Andrew Johnson
(1868). (Congress may also impeach judges.) Articles of impeachment were passed
against Richard Nixon by a congressional committee, but Nixon resigned before
the House of Representatives could vote on the matter, meaning that technically
he was not impeached.
Impeachment does not mean expulsion from office. Under the
constitution, impeachment happens in the House of Representatives if a majority
approves articles of impeachment previously approved in committee. Then
impeachment goes to the Senate, where a two-thirds majority vote is required to
convict the president, upon which he would be removed from office.
Both Johnson and Clinton were impeached in the House but
then acquitted in the Senate and remained in office.
What can a president be impeached for?
“Treason, bribery, or other high crimes and misdemeanors”,
the constitution says. Needless to say, there’s debate over what all those
terms mean.
Johnson was charged with breaking the law by removing the US
secretary of war, which, in the aftermath of the civil war, was not his
decision as president to make. Clinton was charged with obstruction of justice
and with perjury, for allegedly lying under oath to a federal grand jury about
his affair with Monica Lewinsky.
Had Nixon not resigned, he might have been convicted in the
Senate on one of three charges: obstruction of justice, abuse of power or
defiance of subpoenas. In any case, Gerald Ford, who was Nixon’s vice-president
and who succeeded him, pardoned Nixon of any crimes a month after Nixon
resigned.
Can a president be removed apart from through impeachment?
Theoretically, yes, under the aforementioned 25th amendment,
which was ratified relatively recently, in 1967, to clear up succession issues
made painfully urgent by the assassination of John F Kennedy.
The 25th amendment describes a process by which a president
may give away power owing to his or her own disability, and a separate process
by which power may be taken from a president owing to disability or inability.
The key players in the second case are the vice-president
and the top 15 members of the cabinet. If the former and a majority of the
latter decide the president is “unable to discharge the powers and duties of
his office”, they submit that information in writing to the House speaker
(currently Paul Ryan) and Senate president pro tempore (currently the Utah
Republican senator Orrin Hatch) and just like that, the vice-president would be
acting president.
The president may challenge such a decision, at which point
a two-thirds majority in both chambers of Congress would be required to stop
the president from regaining power.
It’s conceivable that Trump would not go quietly if his
cabinet and vice-president Mike Pence were to gang up on him.
How long do impeachment proceedings take?
There isn’t much precedent to say, but the Clinton case
proceeded through Congress relatively quickly, in about three months. That
example may be misleading, however, owing to the years-long investigation of
Bill and Hillary Clinton, including the Lewinsky affair, by the special
prosecutor Kenneth Starr, which preceded it. Starr handed his report and
research to the House judiciary committee, which therefore had no need to
conduct a time-consuming investigation of its own.
About 46% of Americans who responded to a Public Policy
Polling survey in February, for starters. Public opinion matters because for
impeachment to happen, Congress must act, and elected officials sometimes hang
their principles on opinion polls.
It’s notable that Nixon, a Republican, faced impeachment in
a Congress controlled by Democrats, and Clinton was impeached by a
Republican-controlled Congress. For Trump to be impeached, members of his own
party would have to turn on him.
That’s why Republican base approval of Trump is so
important. If Republican voters do not abandon the president, Republican
members of Congress are not likely to.
On the other hand, the Republican Congress might conceivably
be enticed into action by the prospect of dumping Trump in exchange for someone
they are far more comfortable with: Pence, himself a former congressman and a
much more predictable traditional conservative.
Several congressional Democrats have called for impeachment
proceedings of some kind. Representative Mark Pocan of Wisconsin said on the
House floor in February that if Trump did not divest business holdings and take
other actions, then “we’ll have to take other actions, including legislative
directives, resolutions of disapproval and even explore the power of
impeachment”.
What might Trump be charged with?
Bonifaz, of the Impeach Trump Now group, argues that Trump’s
failure to divest from his businesses has already produced frequent violations
of constitutional rules for emoluments, or gifts. Investigations into
associations with Russia by Trump or his proxies could conceivably produce some
kind of disloyalty charge. If Trump has to testify at some point about any of
this, he could face a Clinton-style perjury charge. Abuse of power? Obstruction
of justice? It seems as if, should Congress get to the point of charging Trump,
they may have a buffet of potential charges to choose from.
What would it take in practice to trigger enough Republicans
into action?
Republicans had promised to impeach Hillary Clinton as soon
as she took office. But what they might not have remembered is that two-thirds
of the Senate is required to convict a president of impeachable offenses. The
Democrats are in the minority, but they do have 48 Senate seats out of 100.
The most important factor for Republicans in deciding
whether to go after Trump would seem to be the disposition of Republican
voters. If the people turn on the president, Congress may follow.
Might Trump resign before he’s impeached if there’s a
smoking gun, as Nixon did?
What kind of mood does Pence seem to be in? Is he
implicated? In the scenario of a Pence succession, it would be up to the
current vice-president to pardon Trump or not. Maybe Trump would be more likely
to get out of the way and avoid all or some impeachment proceedings – in this
truly hypothetical scenario – if Trump felt reassured that Pence, upon acceding
to power, would pardon him.
Could he refuse to comply with proceedings?
Only two months into the Trump presidency, we’ve already
heard warnings, issued by members of Congress, about this or that
constitutional crisis being afoot: Trump impugns judges; Trump overrides
legislated regulations; courts block executive actions. There are many
opportunities for further constitutional crises during the Trump years, and a
Trump refusal to go along with prospective impeachment proceedings is certainly
easy to imagine. In which case: who controls the military?
Would Pence go down with him?
Not likely. There’s a school of thought that says a key
reason the Republican congressional majority would assent to a Trump
impeachment is because then they would get the president they really want,
Pence. The closest historical precedent to a double whammy of this kind is the
resignation in a bribery scandal of Nixon’s vice-president, Spiro Agnew, in
1973, a year before Nixon went down. But the alleged crimes were unrelated.
Elections have consequences. Is this all actually just a
fantasy for liberals and conservative purists who cannot accept that Trump won?
Reasons this might not be true include the fact of Trump’s
historically low popularity rating at the two-month mark. Trump sits at 38%
approval, according to Gallup, 20-some points behind the historical average for
first-term presidents. Additionally, Trump seems to be flying unusually close
to the sun, in terms of his conduct as an elected official. During his campaign
he refused to release his tax returns on the grounds that the usual rules did
not apply to him. His refusal to divest from his businesses as president, on
similar grounds, could lead him into legal hazards that other presidents have
avoided. And the investigations into his campaign’s ties to Russia continue.
Finally, Trump is truly a Washington outsider, which could increase his
vulnerability to acts of bureaucratic infighting or hidden treachery, as
evidenced by the incredible number of leaks from the intelligence community so
far.
On the other hand, the election of Trump has been a
particularly painful blow to the progressive psyche, more so even perhaps than
the re-election of Bush as the atrocities of the Iraq war mounted in 2004.
Republicans suffered for eight years from what some of their critics called
Obama derangement syndrome, becoming so wrapped up in their opposition to the
president that any sense of greater purpose seemed sometimes to be lost. Are
progressives and conservative purists suffering from Trump derangement
syndrome? It’s possible. We’ll find out.
Julia Carrie Wong contributed reporting to this story
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