The Case for Impeachment

Trump has continued his assault on the free press, even retweeting and then deleting a violent image of a train smashing into a man with the CNN logo covering his face. At a campaign rally, he abused the power of the presidency to call on NFL owners to fire any players who exercised their right of peaceful protest by kneeling during the playing of the National Anthem. Bluntly put, President Trump had shattered precedent by using the power of his office to say that “those people,” whom he called “son[s] of bitch[es],” oblivious or maybe not to the slur on their mothers, should lose their livelihood for a nonviolent, principled protest.37

To date, Republican indifference to revelations of President Trump’s transgressions have blocked prospects for an impeachment investigation. Yet there remain so many real possibilities for a change of direction that the odds still favor an impeachment investigation no later than the beginning of 2019, but likely sooner than that. Early January 2019 marks the seating of a new Congress. An impeachment investigation would quickly follow if Democrats recapture the U.S. House of Representative in the 2018 midterm elections. To date that remains a long-shot result, but political calculations are rapidly changing in the era of Trump, and the party holding the White House typically loses dozens of seats in midterm contests. Midterm voters usually turn out to register their opposition to an incumbent president, especially one with the dismal approval ratings of Donald Trump. It would take only a net gain of some two dozen seats for Democrats to regain the House majority they held until the 2010 elections.

Even barring such a political turnabout, the Mueller investigation, although not directly targeting impeachment, could issue findings damning enough to jolt the two dozen House Republicans into joining with Democrats for a majority vote on an impeachment investigation. Prosecutors use such pressure on underlings to cut immunity deals for testimony against the person at the top of the chain, in this case President Donald Trump. If Mueller flips high Trump officials, and their testimonies against Trump are damning enough, it could inspire public demands for an impeachment investigation and shock Republicans into action.

The president could pardon anyone subject to federal prosecution. However, such pardons pose the risk of making the obstruction of justice case against him compelling enough for many Republicans. “Unlike the pardon of Arpaio, which is a despicable blow to the rule of law,” said law professor Peter Shane of Ohio State University, “pardoning anyone who might have been a co-conspirator in misconduct involving Trump himself would much more plausibly be impeachable.”38

Similarly, Mueller may uncover direct “smoking gun” evidence of collusion through intercepted conversations between members of the Trump team and the Russians. We know that American intelligence agents have wiretapped Manafort’s phones pursuant to a warrant from the U.S. Federal Foreign Intelligence Surveillance Court, which requires probable cause that he was acting as a hostile foreign agent. Such evidence, like the Nixon tapes, could prove collusion from the mouths of the conspirators themselves and create unstoppable momentum for an impeachment investigation.39

Lastly, Mueller could uncover proof of other felonies committed directly by Donald Trump. If he finds, for example, that the evidence supports allegations of obstruction of justice, money laundering, or tax evasion, even House Republicans would be hard-pressed to oppose an impeachment investigation. Mueller has been investigating obstruction and CNN has reported that “the IRS is now sharing information with special counsel Robert Mueller about key Trump campaign officials,” although it is unclear whether he has yet sought to obtain the president’s tax returns. The mills of special counsel investigations typically grind slowly, but Mueller seems intent on moving quickly. Bombshell revelations could occur by early 2018 or even sooner.40

The final scenario turns on the self-interest of House Republicans. The first rule of politics for an incumbent officeholder is survival. If, by the summer of 2018, vulnerable Republicans come to believe that Trump threatens their reelection and see that the American people are demanding impeachment, enough of them could turn against the president and join with Democrats in support of an impeachment investigation.

Americans can only hope that, as in Watergate, patriotic Republicans will grasp the dire consequences of failing at least to investigate the impeachment of Donald Trump. Inaction would nullify constitutional safeguards against the corruption of presidential service through the pursuit of private profit. It would leave our democracy vulnerable to destruction by the undeterred foreign manipulation of elections abetted by the collusion of unscrupulous campaigns. Inaction would normalize the Orwellian doublethink of the Trump regime, in which reality no longer exists and lies become truth. It would validate the divisive politics that threaten America’s national unity by inflaming ethnic, racial, and religious prejudice.41

There are yet deeper issues raised by Donald Trump’s impeachment. In his first speech to the United Nations, on September 19, 2017, Trump mentioned the words “sovereignty” or “sovereign” no less than twenty-one times. “President delivered a speech to his alt-right, anti-globalist base from the podium of the United Nations General Assembly,” warned David Rothkopf, a visiting professor of international relations at Columbia University. What Trump failed to deliver was any remark whatsoever on the gravest external threat of all to American sovereignty: Russia’s interference in the 2016 election.42

But if Russia’s interference in the election poses the gravest external threat to our nation and all it stands for, then it’s Trump who poses the gravest threat domestically and existentially—though even many of Trump’s critics miss the deepest menace of his presidency. Trump is neither a modern liberal nor a conservative, but that is not to say he’s a blank slate ideologically. Rather, he is a true reactionary who would turn back the clock to an era of xenophobic nationalism, a vision shared by the most backward-looking of Americans, the neo-Nazis and the white supremacists. Like Trump, these reactionaries yearn for a return to an America dominated by white men and guided by a narrow conception of traditional culture, an America insulated from the world by tariff walls, restrictive immigration quotas, and isolationist policies. “We are determined to take our country back,” announced David Duke from the far-right rally in Charlottesville, Virginia. “We are going to fulfill the promises of Donald Trump. That’s what we believed in. That’s why we voted for Donald Trump.”43

At one point in time, extreme nationalism functioned as a foundation for building strong nation states across the world, but it cannot represent the future of the United States—not in our modern day. By the early twentieth century, unchecked insular nationalism had culminated in a worldwide depression, two catastrophic world wars, the collapse of multiple democracies, and the rise of dictatorships around the globe. In recognition of these tragedies, much of the world has moved toward the only viable future: one of gender and racial equality, global cooperation, free trade, common democratic values, and a united approach to fighting the catastrophic climate change that threatens human civilization. The number of worldwide democracies has soared—from just twelve in 1942 to more than one hundred by the end of the twentieth century—but democracy remains imperiled across the globe, endangered by the same reactionary forces that Trump now has unleashed in America.

Trump’s reactionary worldview is best symbolized by his commitment to erecting a wall along America’s southern borders—a throwback to the unsustainable walled cities of medieval times. People could not prosper or thrive in these conditions. They suffered due to polluted water, shortages of food and consumer goods, crumbling habitation, and deficient sanitation. They were ravaged by diseases, like smallpox, dysentery, and the catastrophic Black Death. For a short while, the walled cities may have provided protections, but as technology advanced—as it always does and will continue to do—the walls became useless for defense.

This vision of a walled-off nation is not populist, but profoundly elitist. It reeks of the fortress mentality of privileged Americans who, like Trump, have retreated into the shelter of gated enclaves—guarded versions of medieval castles. He hides out in Trump Tower, away from the very people who flock to his rallies. In the words of renowned late scholar Umberto Eco, “Such postmodern neomedieval Manhattan new castles as the Citicorp Center and Trump Tower [are] curious instances of a new feudalism, with their courts open to peasants and merchants and the well-protected high-level apartments reserved for lords.” In 1984, Trump even planned to build a literal “Trump Castle” in Manhattan, complete with battlements, a moat, and a drawbridge. The project’s architect said that the castle’s medieval-style defenses were “very Trumpish.” Potential tenants could buy into a castle residence for $1.5 million, but Trump’s dream project collapsed when the owners of the proposed site declined to participate.44

Even if the president’s backers cannot access the upper reaches of Trump Tower, they can still hold out hope that his walled-off America will protect their threatened livelihoods and culture. “Protection,” Trump proclaimed in his inaugural address, with literal and figurative connotation, “will lead to great prosperity and strength.” Sadly, for the people who have bought into it as well as for those who have not, it’s an unfathomable vision. Trump cannot wall off the nation from the findings of science, from invasive pathogens like the Zika virus, or from the ravages of monster storms, chronic floods, runaway wildfires, and killer droughts. He cannot block out the technological advances that have rendered coal mines and old-style smokestack industries largely obsolete in the United States. He cannot insulate America from the global economy, or from progress that’s well underway. And Trump cannot re-create a culturally uniform, white “pioneer stock” America through any amount of immigration restrictions or mass deportations; already, the demographic die is cast for a pluralist future.

Trump’s reactionary impulse is inevitably authoritarian, and it explains much of his overreach as president. Reactionism cannot withstand a democratic process broadly open to all voters in an increasingly pluralistic nation; it cannot withstand challenges to autocratic control over the flow of information and ideas. Hence the obsession with alleged voter fraud, the free press, and internal “leakers.” The future of America cannot, will not, be that of a walled-in nation, either literally or figuratively.

CHAPTER 1

High Crimes and Misdemeanors

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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 II, Section 4, Constitution of the United States of America

IMPEACHMENT 101

The first thing you need to know is how impeachment works: The impeachment and removal of a president begins under the Constitution in the United States House of Representatives. An impeachment typically begins with an investigation by the Judiciary Committee. If the committee decides to investigate, it may then by majority vote recommend articles of impeachment to the full House. Members then vote up or down on each article. The House may also proceed with impeachment regardless of the Committee’s recommendations. If a majority of the House ratifies one or more articles of impeachment, the case against the president proceeds to a trial by the Senate, presided over by the chief justice of the Supreme Court. A special prosecutor, a representative from either party, or even members of the public can request an investigation, although the Committee or the full House must agree to proceed with the inquiry.

At trial, the Senate acts as both jury and judge, with the power to subpoena witnesses, issue contempt rulings, dismiss charges, set trial procedures, and overturn rulings of the chief justice. Prosecutors appointed by the House present their case to the Senate, and the accused makes his choice of counsel for the defense. There is no requirement that the accused must appear in his own defense. At the end of the trial, the Senate has the power to convict and remove the president by a two-thirds vote of those present.

A president cannot pardon himself from impeachment, and if ousted by the Senate, he immediately sheds the protection of presidential immunity and becomes subject to arrest, prosecution, trial, and conviction under state or federal criminal law. By a separate vote, the Senate can bar a convicted president from holding any future federal office. Otherwise, an impeached president, if constitutionally eligible, could run again for White House. A president can run again if he was not elected twice or if elected once he did not serve for more than two years as an unelected president.

Decisions on whether to impeach a president turn on the wisdom of Congress and do not require proof of a specific indictable crime under either federal or state law. The verdict of the House and Senate is final. There is no right of appeal or judicial review of their decisions.1

Impeachment covers not just presidents, but other federal officials, notably judges appointed for life. Since America’s founding, the House has impeached two presidents and fifteen judges. The Senate acquitted both presidents. It convicted eight of the judges.2

AMERICA’S FOUNDERS STRUGGLE WITH IMPEACHMENT

After what George Washington called the “standing miracle” of his victory over British arms, the general retired to his Mount Vernon plantation. Bouts of smallpox, tuberculosis, malaria, and dysentery and years of tense warfare had racked his body, leaving him prey to debilitating aches and fevers and a “rheumatic complaint” so severe at times that he was “hardly able to raise my hand to my head, or turn myself in bed.” Yet in 1787, Washington donned his best breeches and frock coat, powdered his hair, and pushed his body to serve his country again: this time as the indispensable president of a constitutional convention in the sweltering Philadelphia summer.3

In the span of just over a hundred days, the delegates created a radically new frame of government powerful enough to protect and preserve their fledging republic, but one with enough checks and balances to safeguard against the tyranny that Americans had endured under British rule. These learned but pragmatic politicians adhered to the later warning of John Adams that: “Men are not only ambitious, but their ambition is unbounded: they are not only avaricious, but their avarice is insatiable.” Therefore, “it is necessary to place checks upon them all.”

The framers adopted impeachment as a necessary check against tyranny. “Shall any man be above justice?” asked the influential Virginia delegate George Mason. He warned that it is the president “who can commit the most extensive injustice.”4

Although they agreed on the need for impeachment, the delegates struggled with defining the grounds for indicting and removing federal officials. During the convention debates, to specify the criteria for removing a president, delegates used such disparate terms as “great crimes,” “malpractice or neglect of duty,” “corruption,” “incapacity,” “negligence,” and “maladministration.” They finally cast their vote for “high crimes and misdemeanors against the state,” then dropped the “state” qualifier, which both broadened and obfuscated the meaning of the impeachment.5

POLITICS WITHOUT CRIME

In the election of 1800, after one of the nastiest campaigns in U.S. history, the nation experienced its first political upheaval when the Democratic-Republican Thomas Jefferson defeated the Federalist incumbent president John Adams. Federalists attacked Jefferson for his alleged atheism, radicalism, and lack of moral standards. One propagandist warned that with Jefferson as president, “murder, robbery, rape, adultery, and incest will be openly taught and practiced, the air will be rent with the cries of the distressed, the soil will be soaked with blood, and the nation black with crimes.”6 The Jeffersonians fought back, charging Adams with scheming to extinguish the republic by marrying one of his sons to the daughter of the King of England and reestablishing British rule over America.

During this interregnum, John Adams pushed through the Judiciary Act of 1801, infuriating the victorious opponents. The act created sixteen new circuit court judgeships and reduced the size of the Supreme Court from six to five, thereby depriving Jefferson of an appointment. In the nineteen waning days of his presidency, Adams appointed so-called Midnight Judges to these new circuit court positions. When Oliver Ellsworth, the chief justice of the Supreme Court and an Adams loyalist, conveniently retired, Adams was quick to appoint the staunch Federalist John Marshall as his replacement. Marshall served as chief justice for more than thirty years.7

Jefferson and his new partisan majority in Congress repealed the Judiciary Act and turned to impeachment for rectifying what they decried as the Federalists’ packing of the courts. They carefully picked as their first target the elderly Federalist district court judge John Pickering, whose advanced dementia and alcoholism led to erratic and sometimes bizarre behavior on the bench. The impeachment of one of many federal trial judges may not amount to very much, but Jefferson and his allies in Congress targeted Pickering as part of a larger plan: to breach the separation of powers and place the constitutionally independent judiciary under the heel of the president and his party. Ironically, it was Thomas Jefferson, who famously had written in his “Notes on the State of Virginia” that concentration of power “in the same hands is precisely the definition of despotic government,” who led this assault on the separation of powers.

Jefferson as party leader set in motion the House’s proceedings against Pickering by transmitting to Congress “letters and affidavits exhibiting matter of complaint against John Pickering, district judge of New Hampshire, which is not within executive cognizance.” Eventually, Jefferson’s loyalists in the House drafted four dense articles of impeachment. None charged a specific violation of law, instead merely citing Pickering’s poor judgment, intoxication, and rants from the bench as evidence that he lacked the “essential qualities in the character of a judge.”8

The Senate convicted Pickering in a straight party vote, making him the first federal official removed from office under Article II, Section 4 of the Constitution. Senator William Giles of Virginia, the Jeffersonian leader in the Senate, said bluntly: “We want your offices, for the purpose of giving them to men who will fill them better.” Lynn W. Turner, the preeminent historian of the Pickering impeachment, wrote, “By confusing insanity with criminal misbehavior they [the Jeffersonians] also wiped out the line between good administration and politics and made any word or deed which a political majority might think objectionable the excuse for impeachment and removal from office.”9

Emboldened by Pickering’s successful conviction, the Jeffersonians next targeted the United States Supreme Court by impeaching Federalist justice Samuel Chase. In 1804, the House voted along party lines to charge Chase with eight articles of impeachment; seven turned on his allegedly unjust and partisan judicial conduct and rulings. The final article cited “intemperate and inflammatory” and “indecent and unbecoming” remarks that Chase made while charging a Baltimore grand jury. None charged him with an indictable crime. The Senate acquitted Chase on all articles, which ended Jefferson’s war on the judiciary but did nothing to clarify the grounds for an impeachable offense or stop similar maneuvers in the future.10

In his famed 1833 Commentaries, U.S. Supreme Court Justice Joseph Story reflected on the constitutional history of impeachment and the examples of Pickering and Chase. Impeachment, he concluded is “of a political character” and reaches beyond crimes to “gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties of political office. These are so various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law.”11

The first impeachment of an American president, Andrew Johnson in 1868, would show just how prophetic Story’s words proved to be. Johnson’s impeachment raises three major issues that are still lively and controversial today: 1. What are the grounds for impeachment, 2. What is the scope of presidential authority and, 3. What is the president’s responsibility to obey the law?

THE MOST ACCIDENTAL OF PRESIDENTS

Like Donald Trump, hardly anyone expected Andrew Johnson to become president of the United States. If Trump seemed destined for stardom in business, young Andrew Johnson, born into poverty and apprenticed to a tailor at the age of ten, seemed destined to sew buttons and cut cloth for the rest of his days. What Johnson lacked in sophistication he compensated for in ambition, grit, and bravado. With help from his wife and customers at his shop, he first learned to read and eventually became a compelling speaker who had a say-anything style that confounded the conventional politicians of his time.

Johnson scratched his way up the sand hill of Tennessee politics as a Democrat in the early and middle years of the nineteenth century. He eventually became a United States senator in 1857. Johnson campaigned as the champion of the common people of America, who he said the political elites of his time had scorned and ignored.

Four years later, Johnson’s political career seemed over when the nation plunged into civil war. Seven southern states, threatened by the election of Republican president Abraham Lincoln on a platform opposed to the expansion of slavery, seceded from the Union before his inauguration. The Civil War began when Confederate batteries fired on Fort Sumter on April 12, 1861, and in June, Tennessee seceded, becoming the last of the eleven states of the Confederacy.

As a slaveholder who upheld the sanctity of the federal union, Johnson was the maverick of his time, and he was the only senator in a seceding state who refused to resign his seat and join the Confederacy. Although Union predictions of a quick victory proved false and the war would grind on for four bloody years, Johnson’s exile was short-lived. In February 1862, Union troops captured Nashville, Tennessee, making it the first Confederate state capital restored to the Union. Republican president Abraham Lincoln rewarded the loyal “war Democrat” Andrew Johnson by appointing him governor of Tennessee.

Two years later, Lincoln dumped his vice president, Hannibal Hamlin, and put his prized Democrat, Andrew Johnson, on his reelection ticket in a show of national unity. In his second inaugural address, Lincoln spoke of how the great and bloody war was a divine retribution for slavery, visited upon a guilty people both north and south. If the bloody war “continue until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk,” he declared, “and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said, ‘the judgments of the Lord are true and righteous altogether.’ ” His new vice president, Andrew Johnson, listened, but failed to comprehend the profound implications of Lincoln’s words.12