Library of Congress/Mathew BradyPresident Andrew JohnsonI don’t have a clear personal opinion on the question of whether it would be advisable for Democrats to initiate any halfway serious moves toward impeaching the current incumbent president. There’s plenty to work with, high crime and misdemeanor-wise, especially considering that the possible meaning of those terms is completely open to discussion. More below.
Speaker Nancy Pelosi advises against it, for now.
Leaving aside the legal/constitutional/crime/misdemeanor considerations for a moment, I assume Pelosi attaches significant weight to the understanding that, even if the House impeached Donald Trump (on whatever charges, and as I said, there’s material there) on a roughly party-line vote (since Democrats control the House it seems perhaps possible), all that does is pass the baton to the Senate.
The Republican-controlled Senate would conduct a trial, requiring a two-thirds vote for conviction/removal. Two-thirds vote. That would require at least 20 Republican senators to vote to convict/remove Trump. Hard to imagine that’s how it goes.
So the question is not really a substantive one, requiring us to try to figure out the meaning of the Constitution’s “high crime/misdemeanor” language. To me, it looks more like a partisan/political/strategic question. Pelosi is widely considered a shrewd one on such questions. For the moment, I’d encourage Democrats to be guided by her instincts and reading of the situation.
Trump weighed in in his usual sober, law-based way on the question, with a double tweet (here and here). If you didn’t click through, (spoiler alert) he claims to have been the most transparent POTUS ever, promises to “drain the swamp,” and asserts that he has committed no crimes or misdemeanors, but Hillary did.
Prediction: Congressional Republicans will take direction from Trump more reliably than Democrats will from Pelosi.
Trump is, of course, a student of history, right? So he knows that only two presidents have ever been impeached, and neither was removed. And he knows that one of those, Bill Clinton, was impeached for lying about his sex life. (Watch out, Trump.)
The other impeachee was post-Civil War President Andrew Johnson. Johnson was charged (impeached) by the House, and came within one vote of being convicted (removed) by the Senate, for the crime of firing a member of his own Cabinet without congressional approval.
Yes, you read that right. If you knew it already, forgive me for showing off. But it never ceases to amaze me that a president firing a disloyal member of his Cabinet constituted the highest crime (in terms of how close a president ever came to being convicted/removed) in the history of the impeachment process.
Johnson was a southerner, in the Civil War era, whom Abe Lincoln put on the ticket during his 1864 re-election campaign as a gesture of regional reconciliation and to reward “Tennessee” Johnson for staying loyal to the Union when his own state seceded.
Then Lincoln was assassinated, and suddenly: President Johnson (who was also a lifelong Democrat, except when he ran with Lincoln in 1864 as part of the ticket of the short-lived “National Union” Party.
Of course the Republican-controlled Congress didn’t like Johnson, wanted to get rid of him, and came within a single Senate vote of doing it.
Which gets me to the other history-nerd impeachment lesson. No less a revered figure than Gerald Ford, in his days as a high-ranking Republican member of the House, very much wanted to impeach Supreme Court Justice William O. Douglas, basically for being a flaming liberal (which Douglas was).
This was during the Nixon administration (but before Nixon made Ford vice president). Ford was angry that the Senate had rejected two Nixon nominees to the Supreme Court. So he argued for the impeachment of Douglas, and Ford got a bit of — but not nearly enough — support to get that done.
It’s a pretty strange and interesting tale, especially for those wondering about exactly what the famous constitutional impeachment phrase “high crimes and misdemeanors” might mean. Ford complained about Douglas writing articles for a magazine that also published risqué photos (not, you understand, risqué photos by or of Douglas or even photos accompanying his article).
In the course of making his argument for impeaching Douglas, Ford uttered this famous quote (or slightly famous, among impeachment history nerds):
“An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”
That standard would be bad for the current incumbent. And, of course, Ford saying it doesn’t make it true, with respect to Douglas or Trump either, except in a very basic instrumental sense that the Constitution grants the power of impeachment to a simple majority vote of the House, with no guidance except the mysterious phrase in the constitutional language “high crimes and misdemeanors.”
Douglas, unimpeached, went on to set a record as the longest-serving Supreme Court member.
I’m also a Constitution nerd. I know the sacred document contains many riddles and anachronism, with which we are sort of stuck (or of which we don’t always know what to make). But that clause about requiring a two-thirds vote in the Senate to convict and remove an impeached president is no riddle, and no anachronism.
So the question of whether the House should impeach Trump is not whether it will result in his early removal. It almost certainly won’t. And if it’s not that, what is the purpose and what interest does it advance?
Oh, in my ludicrous haste to display my obsession with impeachment history, I almost forgot to mention that Trump, in his impeachment mini-tweet-storm of yesterday, made a weird threat that if the House tries to impeach him, he will ask the Supreme Court to block the action, presumably (you can read the tweet) on the theory that the court might choose to decide that nothing alleged against Trump constitutes a “high crime” or “misdemeanor.” (Read the tweets, linked above.)
I’ll concede that, according to tradition, the high court can consider what words in the Constitution mean. I feel fairly confident that the Supremes would rule that it’s up to the House to define the mysterious term, and that the matter is not justiciable. But it is the case that, if the House impeaches a president, which creates the requirement that Senate conduct a trial to decide whether to remove him, the Constitution does say quite clearly, Article I, Section 3, subsection 6, that the presiding officer over the Senate trial of the impeached president shall be the chief justice of the Supreme Court.
That would be a nerd riot.