Impeachment Now

Impeachment Now

"History on Hyperdrive."

- Presidential biographer Jon Meacham on MSNBC this past Thursday, describing our current domestic political environment.

If he's right, the speed at which new allegations, admissions, and revelations enter the daily news stream, coupled with the velocity at which modern information technology disseminates them, might actually accelerate the arc over which this madness ends, for better or worse. With any luck, we'll move quickly toward impeachment and removal of Donald Trump.

On May 9, Trump fired James Comey, the Director of the FBI, purportedly on the recommendations made to him by Jeff Sessions, the Recused-But-Maybe-Not-Actually-Recused Attorney General, and Rod Rosenstein, the Apparently-Complicit-But-Maybe-Not-Actually-Complicit-And-Now-Maybe-Really-Angry Deputy Attorney General/Acting Attorney General.

Initially, the White House communications staff insisted that the President decided to fire Comey on the basis of unsolicited recommendations from the AG and DAG, which criticised Comey's handling of several announcements in 2016 relating the probe of Hillary Clinton's email practices. The White House staff also contended the decision to fire Comey had nothing to do with the ongoing federal investigation of alleged collusion between the Trump campaign and Russian cyberwarriors for the purpose of harming Hillary Clinton's campaign and helping her Republican opponent.

On May 11, however, Trump told Lester Holt that he'd already decided to fire Comey before soliciting or receiving any recommendations from the Department of Justice and that the Russia investigation was one of the things he considered in deciding to fire Comey:

“[Rosenstein] made a recommendation, but regardless of the recommendation, I was going to fire Comey knowing there was no good time to do it...And in fact when I decided to just do it, I said to myself, 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.”

Immediately, the commentariat took up two questions: (1) whether the Electoral College President might be guilty of obstruction of justice for firing Comey; and (2) whether he could be or should be prosecuted or impeached for that act. The debate on chargeable obstruction - as a criminal and/or impeachable offense - intensified in light of the dumbfounding possibility that, in February, Trump might have actually asked Comey to terminate the investigation of former National Security adviser Michael Flynn. Trump now denies making this request. As if that's not feckless enough, Trump apparently bragged to the Russians about firing "nut job" Comey to relieve pressure on him from the Russian-collusion investigation.


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As to obstruction of justice, legal scholars appear to be divided about whether Trump can be convicted of this federal crime, partly because it would be necessary to prove "corrupt intent" beyond a reasonable doubt to secure a conviction. It's often hard to prove intent in any civil or criminal litigation without an explicit admission from a party or other unambiguous proof of intent.

Setting aside whether Trump committed obstruction, the investigation and prosecution of anyone, let alone a sitting president, is a slow and deliberate process governed by complex and strict constitutional and statutory due-process requirements. Absent a plea bargain, it could take years to secure a conviction on obstruction-of-justice charges. The Supreme Court might even suspend or end such a prosecution by holding that a sitting president cannot be prosecuted while in office. (Pop quiz for legal ethicists: if the prosecution reached the Supreme Court before or after a conviction, would Justice Gorsuch have to recuse himself from participation because he was appointed by the man whose prosecution he might review?)

A much faster, simpler, and constitutionally clearer route to removal exists, endorsed by Lawrence Tribe, among others: impeachment and removal per Article 1 of the Constitution. Here are the pertinent Impeachment Clauses from the Constitution:

Article 2, Section 4

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.

Article 1, Section 2, Clause 5

The House of Representatives shall [choose] their Speaker and other Officers; and shall have the sole Power of Impeachment.

Article 1, Section 3, Clauses 6 and 7

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.

Judgement 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, Judgement and Punishment, according to Law.

50%-plus-one Representatives are enough to pass Articles of Impeachment in the House. For example, that's all 193 Democrats and only 25 Republicans, if there are no vacant seats. In the Senate, the much higher bar is 67 Senators for conviction - that could be all 46 Democrats, both independents, and 19 Republicans.

Note that removal via impeachment is no bar itself to later criminal prosecution: "...the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment..." And, there's no definition of "high crimes and misdemeanors." As Gerald Ford famously noted before he became an accidental president, "Impeachment is whatever the House says it is." (Article I of the Nixon impeachment articles adopted by the House Judiciary Committee is grounded in obstruction of justice allegations.)

That's our Constitutional impeachment process - all of it.

For weeks, I've been going back and forth on impeachment.

On the one hand (lawyerly!), if Trump is impeached and removed...

  • the line of succession is terrible: the first four alone are Pence, Ryan, Hatch and Tillerson;
  • the reality-TV noise and craziness that have disrupted Republicans' pursuit of their legislative agenda might abate;
  • tax-cuts for the wealthy, deregulation, and destruction of the environment, public education and the social safety-net probably accelerate toward actual legislation passed and sent on to President...Pence (or Ryan or Hatch or Tillerson or...);
  • and, as has been argued elsewhere, a substantial bloc of hard-core Trumpistas will blame Democrats for leading on impeachment and likely be lost forever as Democratic voters.

This is why we are admonished to be careful what we wish for concerning impeachment.

On the other hand, if Trump and his kleptocratic family and associates are evicted from our government (along with at least some of the white supremacists around them)...

  • Republicans can't stealthily advance their legislative activity while the media foreground is dominated by shiny objects spun off by Trump-mania;
  • the media might focus again on the Republican legislative agenda and arouse widespread opposition to it;
  • we fight the policy battles in a more normalized - albeit difficult - political environment; and
  • we win or lose on the issues.

We should welcome a Trump-free environment. There is evidence we can win in it. See, for example, the furious national opposition to the House Republicans' repeated attempts to destroy the Affordable Care Act.

Even in the midst of Typhoon Donald, public attention and opposition peaked during - and fed off - the media's attention to the bill's features and CBO scores. Daunted House Republicans needed three shots to pass their current bill, which hasn't even gotten to the Senate yet, because the House might have to vote on it again.

And let's also face an important fact: if progressives can't win the national and local policy battles through normal civil processes (while fighting voter-suppression), well, that's democracy. Democracy is where we've made whatever social progress we've achieved under our Constitution.

Setting aside the legislative give-and-take, I believe there's an even graver risk to us in this roiling political apocalypse: if Trump is not removed soon, our constitutional form of civil governance might be destroyed. I've spent 40-plus years writing about public policy or assisting in its design and administration in this civil system. It's a flawed process that frequently produces inefficient and unjust outcomes, but it's better than any plutocratic/autocratic alternative favored by Donald Trump and Vladimir Putin.

The current level of presidential dysfunction also appears to be destroying our international stature. NATO is re-configuring its annual meeting to accommodate 45's miniscule attention span. And does anyone believe that our international intelligence partners want to share highly sensitive information with the U.S. if it winds up as cocktail conversation for Trump and burns a secret allied source, whether it's Israeli or Jordanian?

An additional cause for concern is the recent attack on protesters outside the Turkish embassy in Washington, and the indefensible initial response from the administration. It's not naive or factually baseless to say that, at times at least, the U.S. has been a force for civil democracy and human rights. This administration is rapidly squandering whatever international moral capital the U.S. might have by, for example, inviting a murderer to the White House.

Finally, a question: how many of us - apart from political science Ph.D. candidates in search of dissertation topics - want to suffer 45 more months of this corrupt, incompetent, hilarious-but-terrifying reality-TV series supported by our taxes?

Here's a current answer: approximately 48% of us (give or take a margin of error) want to end the Trump Family Full-Employment Program by impeachment.

Let's get on with it.

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