Impeachment has never finished off a president. A shambolic process that doesn't kill Trump might simply make him strongerby Sam Tanenhaus / December 12, 2019 / Leave a comment
Impeachment, the procedure whereby Congress brings what are in effect criminal charges against the president for abuse of office and breach of constitutional law, is the most radical feature of America’s constitutional system and so seems custom-fitted for the most radical of American presidents. The case against Donald Trump seems clear: he abused the power of his office and violated US election law and the Constitution by pressuring Ukraine President Volodymyr Zelensky to assist in Trump’s 2020 reelection campaign. The US president asked Zelensky to “do us a favour” by contriving a corruption inquiry into former Vice President Joe Biden, on the basis of Biden’s son Hunter’s position on the board of Ukraine’s largest natural gas firm. At the time, the elder Biden was the top contender for the Democratic presidential nomination, ahead of Trump in polls.
Before the formal impeachment proceedings against Trump had begun, many in Washington were confident of the outcome. As Anna Palmer and Jake Sherman, authors of the addictive Politico Playbook daily email, wrote on the morning of day one of the formal hearings: “we all have a pretty good idea how this movie is going to end: a nearly party-line vote, with almost every Democrat voting to impeach the president, and nearly all Republicans voting against it. ”
The process to remove a president has multiple stages. First, the House of Representatives votes to initiate proceedings. Next, select House committees hold investigative hearings with witnesses brought in for close questioning. If the House goes on to draft articles of impeachment, in effect a criminal indictment, the full House then votes on them. Since the Democrats are in the majority in the House, Trump looks set to be impeached.
But impeachment is only half the game. Next comes the vote in the Senate, which acts as a courtroom and jury. Its 100 members conduct their own investigation and then vote whether to convict (remove the president) or acquit (let him finish his term). A two-thirds majority, 67 out of 100 senators, is required for removal of the president. And that is where the complications begin. Republicans now hold a 53-47 advantage in the Senate; 23 of those Republicans are up for reelection in 2020. For all but one or two, a vote to convict Trump, who remains almost cultishly popular with the party’s base, will be tantamount to political suicide. The likelihood of at least 20 voting with the Democrats to convict is beyond dim. It verges on the unthinkable.
There is another reason to suspect the president would not be removed. It has never happened, not once, in the whole of American history. Trump is the fourth president to face impeachment, after Andrew Johnson, Richard Nixon and Bill Clinton. Only Johnson, the “accidental” president who assumed office after the assassination of Abraham Lincoln and the end of the Civil War, came close to being removed. A white supremacist from Tennessee, Johnson defied attempts in Congress to set the nation on a new course and instead gave every advantage to the former slave states of the Confederacy, lest the North “Africanise the half of our country.” Yet even the despised Johnson ultimately survived, by a single vote. Impeachment ruined him, however, and he slipped into the darker recesses of history.
Johnson’s case established a kind of unwritten law: impeachment was the gravest of Constitutional remedies, to be used only in dire circumstances. In the 20th century, as the United States rose from regional backwater to global superpower, presidents were granted ever more leeway, and the executive branch they oversaw grew ever larger. In this period of excitement and continual emergency, the traditional checks on presidential power grew rusty from disuse. They were antiquated, said cold-war era presidential historians, many of them better described as entranced court diarists or celebratory journalists. They spoke in awed tones of the Promethean commander-in-chief who could be trusted to exercise the “presidential prerogative” in support of the national interest and defence of the free world against the Soviet menace, and of his mandate to carry out benign domestic reforms for the folks at home. It was left to lonely dissenters, such as the ex-Trotskyist turned arch-conservative theorist James Burnham, to warn of the dangers of presidential Caesarism, the president who exerted his will through direct appeals to his followers, bypassing Congress and ignoring the will of the many millions who hadn’t voted for him.
As a result, impeachment all but disappeared from the political vocabulary during a long interval of more than 100 years and 20 presidents, many of whom overstepped the boundaries of their office—a century of Constitutional defilement that included unauthorised military actions, court rulings defied, congressional oversight ignored. Then came Richard Nixon, a matchless abuser of presidential power undone by the most banal of misdeeds, a bungled attempted burglary of the Democratic National Committee headquarters in the Watergate office building in 1972, five months before Nixon’s reelection in one of the biggest landslides in history. In his second term, the sordid facts emerged. Criminality grew and fattened, leaving a dark spoor in Nixon’s White House: the drawing up of enemies lists, illegal wiretapping of aides suspected of disloyalty, the secret push-button taping system Nixon installed in the Oval Office, bundles of cash kept in combination safes to subsidise “plumbers” to plug leaks and contrive dirty tricks against political foes, hush money paid to buy the trickster’s silence.
Yet for many months, Nixon’s supporters rallied behind him. When the Senate began hearings, not quite a year after the break-in, a poll found that three out of four citizens agreed with the statement “Nixon’s campaign people were no worse than the Democrats, except they got caught.” Republican chieftains agreed. “You can count on us,” one of Nixon’s staunchest defenders, Governor Ronald Reagan of California, told Nixon. “We’re still behind you out here.” Not until August 1974, 26 months after the burglary, with the court-ordered release of the “smoking gun” audiotape that placed the seal on Nixon’s guilt, did a small delegation of Republican senators privately tell him if he did not resign he would be convicted and removed from office.
Today many point to Watergate as the clearest forerunner of Trump’s offences, and to Nixon’s presidency as a forerunner of Trump’s—the patent disregard for the rule of law and democratic norms, the narrow paranoid worldview, the culture of vengeance and, especially, the all-consuming hatred of perceived traitorous enemies in the media. Like Watergate, the Ukraine scandal comes at us wearing the bold smirk of crime. There is documented evidence, submitted to Congress by an anonymous official, of Trump’s attempt to “shake down” Zelensky. The destruction of any distinction between national and selfish political interest here was of Nixonian starkness, because in exchange for starting an investigation into Biden, Trump would release $391m in military funds appropriated by Congress to Ukraine in its desperate war against separatist militants backed by Trump’s favourite autocrat, Vladimir Putin. Trump had voiced no enthusiasm for helping Ukraine—or any interest in Ukraine at all, aside from involving its new president in his higher objective of tarring Biden. He also asked Zelensky to look into Trump’s latest far-fetched conspiracy fixation, which involved Hillary Clinton and her email server.
More facts spilled out, as one career official after another came forward to corroborate the whistleblower’s report and add new damning details under questioning by the House Intelligence Committee which initiated the proceedings. The former US ambassador to Ukraine, Marie Yovanovitch, testified that she was the target of unsubstantiated allegations pushed both by the president’s personal attorney Rudolph W Giuliani and by a cast of former Ukrainian officials who viewed her as a “threat to their financial and political interests,” as the Washington Post reported. She was ordered to take “the next plane” out of Kiev. Trump released a summary of his phone call, which supported the whistleblower’s account, though the president didn’t seem to realise it. He also set a new standard for misconduct by violating his oath of office publicly, this time urging China to initiate an investigation of Biden, (again, illegally). Trump’s chief of staff, Mick Mulvaney, blandly asserted that yes there was, as Trump’s accusers had said, a quid pro quo—“do us a favour” and the money will be released.
Meanwhile in Ukraine, the Los Angeles Times counted 25 military casualties during the period in which the $391m was frozen. Foreign policy columnist David Ignatius wrote, “As Ukrainians were struggling with near-daily shellfire, Trump appeared to treat military aid appropriated by Congress as a personal political tool.”
In case there was any doubt about whether Trump’s actions were legal, Ellen Weintraub, chair of the Federal Election Committee helpfully said: “Let me make something 100 per cent clear to the American public and anyone running for public office. It is illegal for any person to solicit, accept, or receive anything of value from a foreign national in connection with a US election. This is not a novel concept.”
Indeed it is not. Alexander Hamilton, the constitutional framer who gave the most thought to impeachment, was worried about exactly the kind of interference that Russia undertook in 2016 and that Trump now appears to have invited, not only from a victim of Russian aggression, Ukraine, but also a rival great power, China. “At the time of the Constitutional Convention, foreign powers, notably Britain and Spain, still hovered on America’s borders, generating fear of foreign interventions in our elections,” Hamilton’s biographer Ron Chernow recently reminded us. For this reason the full list of impeachable acts includes “Treason, Bribery, or other high Crimes and Misdemeanours.” Extortion of the sort Trump has attempted with Ukraine, is all but interchangeable with “bribery,” a point Nancy Pelosi, the House Speaker, understood when she suggested the latter as a likely article of impeachment against Trump instead of the more abstract-sounding “quid pro quo.”
The brazen illegality of Trump’s actions, and the rising call to act from Democrats, is what finally persuaded Pelosi, the preeminent statesperson in American politics, to set aside her misgivings and authorise hearings. Some had been clamouring for months to impeach Trump. The list of offences is long and varied. One example alone, his family’s naked profiteering while he has been in office, has no precedent. Under normal conditions, this alone might warrant removal. But Pelosi wanted no part of investigating Trump, for fear it would rebound against her party. “Impeachment is so divisive to the country,” she cautioned, “that unless there’s something so compelling and overwhelming and bipartisan, I don’t think we should go down that path because it divides the country. And he’s just not worth it.” Ukraine was the “something.”
And yet, as Pelosi and other Democrats know, the perils remain great. Pelosi has reminded Democrats not to allow impeachment to become a major campaign theme in 2020, crowding out the policy issues—broader national healthcare coverage (“Medicare for all”), income inequality, climate dangers—that proved so successful in the 2018 midterms, when the Democrats flipped 40 seats and regained control of the House, their best result in modern memory.
Few want to acknowledge what Trump has known from the start, and what dawned slowly on Republican legislators. Putting him in the public dock harms him little, if at all, with his adoring base. This is puzzling to some, since Trump is, by some metrics, the least popular president since the advent of modern polling. Almost three years into his presidency he has yet to register a 50 per cent approval rating in any respected poll. A criminal investigation—almost certainly resulting in impeachment—should be lethal to his hopes for a second term. But these are anomalous times. While about half of all Americans now say they favour Trump’s removal, no more than 10 per cent of Republicans do. The remaining 90 per cent are the source of his matchless power within his party—there is not one credible challenger to his renomination—and also constitute the largest single bloc by far in a politically splintered republic.
Trump has defied precedent and received wisdom by making no effort to build support beyond the 46 per cent of the voters who gave him a comfortable margin in the electoral college. That same 46 per cent may well reelect him in 2020. To all appearances, his command of what is disparagingly described as “flyover country”—the vast expanse between the densely populated coasts—has been growing, fed by Trump’s clashes with Democrats and the “mainstream media.” Democrats are said to think the struggling Rust Belt state of Ohio, which Barack Obama carried twice, may be beyond reach for them in 2020, despite Trump’s abject failure to deliver promised jobs there.
How can this be? One reason was furnished in August—a month before the Ukraine scandal broke—by Rolling Stone’s Matt Taibbi, who went to a Trump rally in Cincinnati, Ohio’s third biggest city and found, not fanatical right-wingers, zealots or bigots, but ordinary people, many of them apolitical:
The base of the 45th president consists not of lockstep ideologues, but of fans:
Slogans include “Trump 2020: Grab ’em by the Pussy Again!” and the ubiquitous “Trump 2020: Fuck Your Feelings.”
The message is plain. Impeachment may be good for Trump. He has already made history. No previous president threatened with removal ever sought reelection. Johnson slunk out of Washington. Nixon was in his second term, as was Bill Clinton (more on him shortly). But unless the Senate votes to convict him, which no one expects to happen, and barring illness or death, Trump will be enthusiastically renominated by his party, and that circumstance alone will give him a strong chance of winning. Those chances will possibly be improved by his impeachment—a shiny new credential, a badge of anti-legitimacy, certified proof that Trump remains what he has said he was all along, an outsider blackballed by members of the Washington club, who in despising him reveal their contempt for voters in Cincinnati and elsewhere in heartland America.
The unresolved issue which Trump has stirred in his singular way is that while the presidency has been diminished in prestige—parallel to the diminished global role of the United States—the president as “personality” grows ever larger. The first evidence of this came in the third impeachment, Clinton’s in 1998. Like Trump, Clinton had been elected despite accusations of financial impropriety and sexual misconduct, and the accusations continued to dog him during his presidency. Clinton was a skilled politician, and a popular one, with a sure feel for his moment. And the moment was relatively good—or at least calm. There was no Civil War, no superpower struggle. Buoyed by the post-cold war peace dividend, he was a Democrat who governed like a moderate Republican.
And yet Republicans came after him anyway. Even as Clinton nimbly triangulated policy differences between the Democrats and Congressional Republicans, giving way to them time and again, enacting his own version of Reagonomics (low taxes, de-regulation, friendliness to Wall Street), partisan enmity widened. The more Clinton compromised with the other party, it seemed, the more fixated they became on destroying him—and the better he got at outmanoeuvring his tormentors. Caught at last in recklessness, impeached for covering up his illicit liaisons with a White House intern, Clinton brazened it out. Under attack, he appeared as presidential as possible, with other important business to attend to—a crisis in the Balkans, a major speech to the IMF and World Bank—while also mustering the best defence he could. His staff set up a “fact room” to meet new allegations and emphasised the distinction between Clinton the man, with his personal foibles, and Clinton the competent executive. This reinforced what the public had thought all along: Clinton’s personal failings had not led to a meaningful abuse of power.
When he was impeached by the House anyway (for perjury and obstruction of justice) he asked for a “reasonable, proportionate, and bipartisan” trial. Remarkably, his popularity held steady and even increased. A month into impeachment hearings, his party actually gained seats in the midterm elections (the first time the presidential party had managed this since 1934, Franklin Roosevelt’s first term). After the House approved two articles of impeachment, Clinton’s approval rating was a soaring 73 per cent. Even after the month-long Senate trial, with the votes to convict falling far short of two-thirds, it was still an impressive 68 per cent.
Clinton survived impeachment, but impeachment didn’t survive him—rather, it didn’t survive the effort by his adversaries to wield it as a political truncheon, exactly as Democrats are now wielding it against Trump, Republicans say. Those same Republicans forget how zealous their efforts were to delegitimise Clinton and after him Barack Obama and how eager they were to grasp at meagre strands of misconduct to prosecute Hillary Clinton had she been elected, as almost everyone, Trump included, assumed would happen. The House Speaker at the time, the Republican Paul Ryan, promised “aggressive oversight work in the House” if Clinton won, with special attention to, yes, the “quid pro quo” deal the FBI and the State Department had allegedly worked out to suppress the facts of Clinton’s use of a private server for her emails when she was Secretary of State.
Some commentators warn that if Trump isn’t impeached, then no future president will ever be. Perhaps, but not for the lofty reason they give, about the rule of law having lost all meaning. The reason, rather, is that impeachment will have fully become a political tool sharpened by partisan hatreds. Republicans debased it in their persecution of Clinton. Many Democrats were itching to prosecute long before Ukraine. Throughout the period when Robert Mueller was investigating Russia’s meddling in the 2016 election Trump’s detractors in the media confidently predicted his removal, seizing on every morsel that came out of the inquiry or exulting in new books by Obama-era sages with titles like Impeachment: A Citizens’ Guide and To End a Presidency: The Power of Impeachment. The result was not to undermine Trump but to inoculate him, and give ammunition to his party and the Republican constituency, who remained on a kind of permanent alert, ready to defend their man at every turn.
Trump’s presidency signals a new phase in America’s national life, long in the making and equally long ignored, until the Iraq catastrophe, economic collapse and class warfare brought it home—the “carnage” of a torn country that Trump spoke of at his inauguration. In that moment he stepped into his role as tribune of the empire in decline. He has combined the diminished reality of the “imperial presidency” with Caligulan appetite—and has found an audience that laps it up.
For Trump, putting an ambassador he dislikes on the next plane from Kiev is no different from firing an unloved contestant on The Apprentice. Trump the boss gets to do what he likes. Otherwise, what’s the point of being president? If the Democrats start a fight with him over the laws and rules he’s supposed to obey, he’ll slug back harder. They hate him? Well, he hates them too. When Trump said, “I have an Article 2 [of the US Constitution, which creates the executive branch], where I have the right to do whatever I want as president,” he was mistaken on the law but disturbingly close to right on the facts. Presidents have been getting away with a great deal for many years, often in brazen violation of Constitutional limits.
The enduring historic lesson of Donald Trump’s presidency could turn out to be that those limits have been erased, because each new president has been elected to be himself, whoever he is or induces us to think he is. Many have been quoting Trump’s most notorious assertion in the 2016 election: “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters, OK?” With each passing day it seems clearer that what sounded like a boast was actually an attempt to tell us something, not just about himself but about the country that made him president.