Two Paths to Impeachment

More and more, it looks like impeachment hearings are going to happen eventually. The main question is when, not whether.

The news media is presenting this as an internal struggle among Democrats, with Speaker Pelosi being against impeachment and an increasing portion of her caucus being for it. But I’m reading those tea leaves a little differently: I think Pelosi wants to get to impeachment by a less direct route — appearing less eager, but gathering evidence and building public support in hearings resembling more ordinary Congressional oversight. Her plan, if all goes well, is to arrive in the same place at more-or-less the same time.

Channeling the Speaker. I think her reasoning is correct as far as it goes: While the Democratic base is strongly in favor of impeachment, the party did not run on impeachment when it won its decisive victory in 2018. [1] Pelosi knows that her majority rests on swing districts where voters are not yet convinced that impeachment is necessary.

In Pelosi’s vision (as I channel it), the investigations currently underway in a variety of House committees will eventually produce stunning revelations from subpoenaed documents (like Trump’s tax returns) and riveting public testimony from witnesses (like Robert Mueller and Don McGahn). This will turn public opinion in favor of impeachment, and Democrats can then claim to be following the public rather than leading it somewhere it doesn’t want to go. Conversely, if the public sees the evidence and doesn’t care, a Democratic push to impeach could be a Charge of the Light Brigade — courageous, but ultimately suicidal. [2]

This week, though, Pelosi has barely managed to keep down a revolt in her ranks, from Democrats who want the Judiciary Committee to start impeachment hearings immediately. Their argument is also correct as far as it goes, and Pelosi does not really dispute it: The Mueller Report shows (but does not conclude) that Trump committed obstruction of justice on numerous occasions. [3]

Grounds. More than 900 former federal prosecutors (400 when the linked article was written) have signed a statement including the following:

Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.

The seven obstructions of justice are in addition to a number of other possible offenses, such as violations of the Constitution’s Emoluments Clause and the violations of campaign finance law involved in the payoff to Stormy Daniels. [4]

Abuse of power can also be impeachable, even if the laws have not been technically broken. [5] Now that Trump is making a regular practice out of abusing the national-emergency laws to usurp Congress’ constitutional powers, and denying that Congress has any role in overseeing the Executive Branch, impeachment may be the only way for Congress to defend its status as an equal branch of government. [6]

And in spite of the President’s “no collusion” mantra, the Mueller Report did not completely settle that issue either. At least one of Trump’s obstructions may have succeeded in preventing Mueller from getting to the bottom of things: We know that Paul Manafort gave campaign data to Russian oligarch Oleg Deripaska and Russian intelligence operative Konstantin Kilimnik, but we don’t know precisely what or why — possibly because Trump’s witness tampering kept Manafort from cooperating with Mueller’s investigation.

Why not now? The impeachment-now argument has two pieces:

  • Regardless of any political calculations, Congress has a constitutional duty to defend the Republic from presidential criminality. Doing nothing doesn’t just leave Trump in office until the voters (we hope) remove him in 2020; it changes the rules for all future presidents.
  • At crucial moments, Congress has a responsibility to lead the public rather than just follow it. So the Democratic House majority shouldn’t just sit tight and hope that the public catches on to the danger of leaving Trump in office. It needs to go to the public and make that case. By leaving open the possibility that it might not proceed to impeachment, the House is signalling to the American people that what Trump has done and continues to do is not that bad.

What has pushed Democrats towards revolt recently has been Trump’s brazen stonewalling of the various House investigations. More and more, he seems to be claiming an absolute supremacy for the presidency, without checks-and-balances from Congress or the courts. [7]

If his effort succeeds, Congress will not be an equal branch of government any more. Republicans who doubt this should try to imagine their own reaction if President Obama had simply denied that Benghazi was any of the Republican Congress’ concern, and refused to let any executive-branch officials testify to congressional committees.

Appeal to the courts. Trump’s resistance underlines a weakness in our constitutional system: Congress has a great deal of power on paper, but using it largely relies on the good faith of the executive branch. A bad-faith president has many ways to stymie Congress, which has no police force, army, or jail of its own.

And so the House committees have had to go to the third branch of government, the courts, in an effort to enforce their subpoenas. This is necessarily a slow process, and leaves open the possibility that Trump’s lawlessness may lead him to defy court orders the same way that he has been defying congressional subpoenas, moving us near the point of a coup. If it comes to that, the courts command no more guns than Congress does. [8]

The slowness of the legal process, and the possibility that neither Trump’s taxes nor Don McGahn’s testimony will ever become public, has caused Democrats’ frustration to boil over into impeachment talk, in spite of Pelosi.

But Pelosi’s allies raise this point: What problem does an impeachment inquiry solve? An impeachment subcommittee of the Judiciary Committee would subpoena the same documents and witnesses as the other committees have. Trump would likewise refuse to cooperate with those subpoenas, and the subcommittee would file the same lawsuits the other committees have already filed. So where’s the win?

An impeachment subcommittee would be on somewhat more solid legal ground, because it would be addressing an issue that the Constitution delegates to the House specifically. But so far, the House’s position has not lacked for legal strength.

This week, two judges rejected out of hand the Trump administration’s contention that Congress’ investigative power is tightly constrained. They did not suspend their rulings pending appeal, indicating their opinion that Trump’s arguments are baseless. Trump’s lawyers will undoubtedly appeal, but will be forced to appeal quickly before the documents are turned over, rather than using the legal process to stall.

Where the conflict goes. If you believe, as I do, that both paths ultimately go to the same place, ultimately this is all going to come down to three questions:

  • Is the Supreme Court (and its two Trump appointees) as partisan as it sometimes appears, or will it reject Trump’s baseless objections and enforce legal subpoenas?
  • If the Supreme Court rules against him, will Trump comply, or will he defy the united opinion of the legislative and judicial branches of government? This would amount to proclaiming the complete supremacy of the executive branch, and set the stage for dictatorship. [9]
  • If Trump’s disregard of constitutional government becomes that blatant, will Senate Republicans finally turn against him and vote to remove him from office?

I can only hope that by 2021 these scenarios will look hysterical. But given the once-unthinkable actions we’ve seen these last two years, they don’t seem hysterical to me now. I don’t expect events to go this way, but it seems likely enough that we need to be prepared.

If things do go that far, America will face a fourth question, one that comes up frequently in fragile democracies, but has never been raised in the 232 years since the ratification of the Constitution: If Trump would refuse to accept removal from office, what would the armed forces do? My firm belief is that they would back the law rather than the removed president. But let’s hope we never need to find out.


[1] It’s worth noting that, unlike President Trump, Speaker Pelosi represents a majority of the American people.

Democratic candidates for the House got nearly 10 million more votes in 2018 than Republican candidates, winning a 53%-45% popular vote victory. That victory was larger in both raw votes and percentage than the Republicans’ 2010 rout. However, gerrymandering held Pelosi’s majority down to 235-199, compared to the 2010 Republicans’ 242-193 margin.

[2] I often see reference to the public’s reaction against the Clinton impeachment. But Democrats’ shouldn’t read that as a rejection of impeachment in general. The public supported Clinton because they came to believe he was being impeached for what was essentially a private matter. Hillary should have been furious about Monica Lewinsky, but it really wasn’t Congress’ business.

The challenge for the Democrats is to make it clear that a Trump impeachment is about protecting democracy, not just partisan pique.

[3] I counted seven when I read the report. Many people say ten, but that’s not quite right. Mueller examined ten incidents that had some appearance of obstruction, but found all three elements of obstruction in only seven.

I don’t think that makes a significant difference. It’s not like the first seven obstructions of justice are free, but an eighth puts you over the limit.

[4] Michael Cohen has already gone to prison for this.

[5] We have this on the authority of no less an expert than Lindsey Graham.

The point I’m trying to make is you don’t even have to be convicted of a crime to lose your job in this constitutional republic. Impeachment is not about punishment. Impeachment is about cleansing the office.

[6] Defending the status of Congress was what pushed me over to the impeachment camp a week after writing that I didn’t think the Mueller Report justified it.

[7] I’ve tended to shy away from psychoanalyzing Trump, but here it seems relevant: Throughout his life, Trump has taken a sociopathic view of rules, in which they are simply obstacles to overcome on the way to getting what he wants. By contrast, a properly socialized person sees rules as defining a game we play together. We obey rules not just because we will be punished for breaking them, but because we want the game to continue. (Marriage — another institution whose rules Trump has repeatedly flouted — is a good example here. In a healthy marriage, neither spouse examines the wedding vows for loopholes. Instead, each asks what effect an action has on the relationship, rather than whether it is technically permissible.)

Trump’s attitude occasionally seemed abnormal even in the rough world of New York real estate, where he would honor only as much of a contract as the other party was willing and able to enforce in court. But no previous president — not even Nixon — has ever approached the presidency in such a way. In any conflict, Trump looks at a move and asks “Will it get me what I want?” without regard to whether he is breaking American democracy.

[8] As Stalin is supposed to have asked in regard to the moral force of the Catholic Church, “How many divisions does the Pope have?” John Roberts has the same number.

[9] If he got away with this, Trump might subsequently go along with the forms of democracy, in the same way that Caesar Augustus allowed the forms of the Roman Republic to continue. But like Augustus, he will have shown that no one can stop him from doing whatever he wants.

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Comments

  • mary  On May 27, 2019 at 3:26 pm

    Outstanding analysis!

  • Anonymous  On May 27, 2019 at 7:56 pm

    Thank you, Doug. This helps clarify my own thinking.

  • frankackerman0617  On May 28, 2019 at 2:22 pm

    Mueller shows obstruction of justice —
    Yes, I agree with 900 former federal prosecutors. But I think it is important to attempt to understand how sane people with NO SPECIAL STAKE in Trump’s presidency DO NOT agree. What are the foundations and mechanisms that enable them to deny obstruction of justice?

  • EFCL  On May 28, 2019 at 7:36 pm

    “…what would the armed forces do?” Military officers swear an oath to “… support and defend the Constitution of the United States against all enemies, foreign and domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter; So help me God.” Officers thus swear to defend the Constitution, not the President. The issue of illegal orders comes up here: illegal orders should never be followed. An impeached President, even if he fails to vacate the office, cannot give a legal order to any officer or enlisted person.

  • The Serapion Brotherhood  On May 29, 2019 at 3:13 pm

    In Augustus’ time the Republic had experienced civil war between magistrates every few years for nearly a century. The Roman constitution didn’t seem to have any way to stop it other than a dictatorship (rule by a single magistrate, which was actually a legitimate emergency power in the constitution). Trump does not have that excuse.

  • ADeweyan  On May 29, 2019 at 4:31 pm

    At least since Clinton (that’s as far back as I remember, but it likely goes back further), fears have been expressed that a President will refuse to leave office. That makes these sorts of concerns easy to dismiss. But I think few would argue that Trump isn’t different.

    I don’t actually fear that he will refuse to leave office. For one, I’m not convinced he actually wants to be there — it’s more like he fell into it and is trying to get as much money and fame for himself as he can, while letting a set of depraved advisors make the actual decisions.

  • jh  On May 30, 2019 at 9:43 pm

    Trump is sociopathic. But what his support reveals is that conservatives are equally sociopathic. That should worry any reasonable human being. Hillary was inaccurate when she said that a few of the Trump supporters were deplorable. It appears that it is a vast majority of conservatives who are deplorable and sociopathic.

    And notice the effortless hypocrisy? The party of “law and order” routinely ignores the rules of law and order. The party of “personal responsibility” routinely blames others. The party of “christian morality” defends a person who is the antithesis of Jesus Christ – the demigod they claim to worship and believe in. (And even though you may be a Christian, I find that Christian derived morality is pretty damn pathetic and doesn’t create good people. There’s a reason that the US had to fight a war to free black people. In contrast, other countries didn’t need to have a war.) The party of “She lies/Clinton lied during the Starr investigation” are the party that wink and nod when their Trump lies. The party that claims to be “the heartland of America” actively supports Putin rather than their fellow Americans. The party that loves their soldiers sure does love killing them in wars… just look at the nonsense with Iran and Venezuela.

    Conservatism is sociopathic. It’s not about preserving the good out of the past and traditions. It is out and out sociopathic deplorable immoral behavior and mindset. And the problem is that we helped create it when we pretended that Republicans weren’t racists. We helped when we are polite and civil rather than saying “Well, Republicans lie all the time. How do we know they aren’t lying this time?” When we pretend that a state that ranks at the bottom for every positive social metric (health, education and so on) and ranks at the top for every negative social metric (teenage pregnancy, mortality rates) should have a say is absurd. The conversation about who actually contributes to the US needs to be broadcast. Otherwise, conservatives lie and constantly usurp and misuse commonly used words to gain an advantage. (I would argue that to be an American is to be liberal. If you are a conservative, you fought against the US in our War of Independence. You aren’t part of the social contract. The US was created by liberals for liberals. I mean – conservatives are happy with monarchies. They want to “conserve”. In contrast, the idea that government exists by the consent of the governed is a radical idea. The idea that people pick representatives and have a say rather than some divine bs is a radical idea. The idea that “all men are created equal” is a radical idea. There’s nothing conservative in those ideas. A more perfect union? That’s a radical idea. It’s a progressive radical liberal idea of future and change rather than the fearful primitive barbaric sociopathic conservative slaves of the US conservative movement.)

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