US President Donald Trump ©Jim LoScalzo/DPA/PA Images

How to impeach Donald Trump

You're never going to oust him using the law—unless the politics turns
February 10, 2017

President Donald Trump’s business dealings, unhinged tweets and conflicts of interest, coupled with lurid sexual allegations and whispers of Russian links have led some to dream that impeachment could be just around the corner. The chatter started even before he took office, and by January’s end half a million people had signed the “Impeach Trump Now” petition. It’s all very wishful thinking.

Article II, Section 4 of the US Constitution states: “The President, Vice President and all civil officers... shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” The House of Representatives must vote upon an impeachment resolution and the Judiciary Committee conduct an investigation. If the House then accepts the impeachment charges, the action moves to the Senate, where a trial takes place. To convict an impeached president a full two-thirds of the Senate must find him guilty. The first of these steps (Committee investigation) has taken place three times: in 1868 (President Andrew Johnson), 1974 (Richard Nixon) and 1998 (Bill Clinton). The second (House vote and Senate trial), twice—for Presidents Johnson and Clinton, but not Nixon, who resigned before trial. The third (conviction) has never taken place.

In conscious opposition to the ancient maxim “the king can do no wrong,” the Founding Fathers created a presidency that was not shielded from responsibility for wrongdoing. In early Constitutional drafts only treason and bribery were impeachable. One founder—George Mason—suggested adding “maladministration,” but James Madison objected that this loose formulation would hand a weapon to politically-motivated enemies of the president. They compromised with “high crimes and misdemeanors.” But Madison’s fears proved well founded: impeachment has never truly been a legal process, and always a political one. The political battleground? Defining “high crimes and misdemeanors.”

Unlike well-defined treason or bribery, the “high Crimes” test is entirely elastic. The President’s supporters take a restrictive view, his opponents an expansive one. Presidents may wish things were clearer, and sometimes claim that they are. “You don’t have to be a constitutional lawyer to know that the constitution is very precise in defining what is an impeachable offence,” whimpered a besieged Nixon in 1974. But he was wrong: the Founders did not specify a list of specific offences, nor even require any actual criminal offence be proved. His successor, Gerald Ford, was closer to the truth when he claimed that “an impeachable offence is whatever a majority of the House of Representatives considers it to be at a given moment in history.” Impeachable “Misdemeanors” could include inaction, chronic ineptitude and abuse of powers, especially when aggregated into a pattern of behaviour. All this makes impeachment a fundamentally political act—defined in terms dictated by partisan actors—and thus, where those actors are sufficiently hostile, a more plausible outcome.

Partisanship  thus becomes the dominant question. Both Johnson’s and Clinton’s impeachment votes split along party lines. Democratic Senator Robert Byrd stated at Clinton’s trial that although he was certain the Democratic president had committed perjury, his vote would be cast in “the best interest of the nation.” The chief check on partisanship is political calculation. During Democrat Andrew Johnson’s impeachment proceedings, for example, Congressional Republicans—who had never approved of southerner Johnson’s conciliatory approach to the former Confederacy—argued that he had violated the Tenure of Office Act by firing their ally, War Secretary Edwin Stanton. But Johnson was saved by crucial votes from individual Republicans who fretted that “the shock of impeachment” could damage their standing.

Impeachment efforts have always occurred when rival tribes control the White House and Capitol Hill. And the Republican Trump will not be impeached unless most members of a Republican House and a supermajority of a Republican Senate judge it to be in their own interests. Moreover, the sequencing of the electoral cycle in the Senate actually gives the Republicans a good chance to tighten their grip there in the 2018 mid-terms. Trump’s many indiscretions did not prevent him winning the election nor, crucially, did they seem to damage down-ballot Republicans last year. The Republican primary electorate were not turned off by all the scandals, and polling suggests that the white evangelical Republican base has recently become more indulgent of public officials who commit immoral personal acts.

Partisanship and calculation, then, are all-important—not formal legal standards. But, just as Clinton’s high approval ratings in a strong economy saw him survive his trial, could Trump’s low personal ratings prove a trigger? Unlikely. Public opinion is only important insofar as it sways members of the Republican majority, and—in largely gerrymandered Congressional seats—it is Republican opinion that counts. Moreover, Congress almost always has lower approval ratings than the president: currently 19 per cent, worse even than Trump’s 45 per cent. Congress is at a disadvantage. Media portrayals of Clinton’s opponents as vengeful helped discredit their efforts, and Trump’s conservative media allies would swiftly discredit potential impeachers.

In sum, impeachment is a risky game Republicans are most unlikely to play, barring some unimaginable political upset. The long odds are driving some despairing souls to study another corner of the Constitution, the 25th Amendment, in which they spot an opening for the Vice-President to conspire with lawmakers or Trump’s own Cabinet to declare him “unable” to rule. The impeachment chatter was already a sign of desperation. But things are fast reaching a pretty pass when liberal America finds itself feeling comforted by wild notions of a Mike Pence coup.