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How Impeaching Trump Would Work

Whether Trump eventually will be forced out of office is as much a political question as it is a legal one.

After a week of watching Russian diplomats being offered state secrets in the Oval Office and reading about a leaked memo which paints Trump as attempting to stop an FBI investigation, Americans are asking themselves: Is impeachment around the corner? And if it is, how does it work?

First, impeachment is not, by itself, the removal of a president. It is a single step in a multi-step process: The House Judiciary Committee must recommend impeachment. Then the House of Representatives carries out an impeachment vote. If that vote succeeds (by a simple majority), a trial takes place in the Senate (presided over by the chief justice of the Supreme Court), where a two-thirds majority is then required to convict.

Second, what are the grounds for impeachment? Article II, Section 4 of the Constitution reads, “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.”

Has Trump committed treason? The Constitution has a very specific definition of treason: “levying War against [the USA], or in adhering to their Enemies, giving them Aid and Comfort.” Trump hasn’t waged war on the United States, and because we aren’t at war with Russia, giving them state secrets probably isn’t treason either. Bribery? Not that we know about. High crimes and misdemeanours? This is a very definite “maybe.”

“High Crimes and Misdemeanours” was a catchall phrase, common in 18th century British law. It didn’t refer to a special kind of crime, but rather regular crimes committed by the high and mighty – people with political power. The framers of the Constitution made it clear that, although they didn’t want presidents to be fired every time Congress got antsy, they did want to leave an escape hatch in case the chief resident of the White House went bad.

What exactly qualifies as a “high crime and misdemeanour”? Strict constitutional constructionists argue that it must be something actually illegal, a crime for which someone could be convicted in a court of law. Broad constructionists, instead, believe that impeachable offenses are anything Congress thinks is unacceptable. Or to quote then Rep. Gerald Ford during the failed 1970 attempt to impeach Supreme Court Justice William Douglas, “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”

Only two presidents have actually been impeached: Andrew Johnson (1868) and William Jefferson Clinton (1998). Both were acquitted in the Senate.

Andrew Johnson was a racist Tennessean former slave owner whom Abraham Lincoln made his vice president as part of a unity ticket. When Lincoln was shot, Johnson became the wrong man for the most important job. He dragged his heels when a Republican Congress wanted to force the Southern states to give black people full voting rights and the House responded by impeaching him, but the Senate fell one vote short of removing him from office.

Bill Clinton was targeted after Congress pushed for a special counsel to investigate an old land deal (Whitewater) with which he and Hillary Clinton had been involved. That original investigation wandered far afield and eventually came across the fact that Clinton had been involved with a young intern named Monica Lewinsky. When Clinton seemed to lie under oath about the affair, the House impeached him on the grounds of perjury and obstruction of justice. Both charges were voted down in the Senate. Most Americans seemed to think his crime did not merit expulsion from office. (His Gallup Poll approval ratings rose during the impeachment trial.)

Richard Nixon is the president many people associate with impeachment even though he resigned before he could actually be impeached. It’s his crimes that most closely resemble the high crimes and misdemeanours the founders wrote about, and it’s the arc of his downfall that most closely resembles Trump’s current trajectory.

The end of Nixon’s presidency started small when, on June 17th, 1972, five men were found breaking into the Democratic National Committee headquarters at the Watergate Office Complex. An FBI investigation found connections between the burglars and the Nixon campaign. Eventually the Senate began its own investigation and a special prosecutor, Archibald Cox, was appointed by the Justice Department. When it was discovered that Nixon had taped all conversations in the Oval Office, Cox subpoenaed those tapes. Nixon ordered his attorney general to fire Cox. He refused, and was immediately forced to resign. When his deputy also refused, he was also forced to resign. Nixon finally got Solicitor General Robert Bork to fire Cox. This “Saturday Night Massacre” backfired on Nixon, making him look guilty. Political pressure led to the appointment of a new special prosecutor. The Nixon tapes were eventually released – first the transcripts, then the tapes themselves. On one of them, Nixon could be heard discussing a plan to get the director of the CIA to make the FBI head back off the investigation. This “smoking gun” tape directly implicated Nixon in obstruction of justice. On August 8th, 1974, to avoid impeachment, and his almost inevitable conviction, Nixon resigned.

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Trump with House Republicans after the chamber’s passage of the American Health Care Act. Credit: Mark Wilson/Getty

This brings us back to Trump. A key lesson of the Nixon scandal was “it’s not the crime, it’s the cover-up.” It was Nixon on tape saying that the FBI should be forced to back off that put the final nail in his presidential coffin. That many of Trump’s associates, especially his former national security adviser, Michael Flynn, had Russian connections is politically damaging, but it’s not necessarily Trump’s fault. Firing FBI Director Jim Comey in the middle of an investigation, however, is clearly Trump’s fault. This is Trump’s own “Tuesday Night Massacre.” It looks like obstruction of justice. The latest revelation – that Trump, in a February Oval Office meeting, asked Comey to stop investigating Flynn’s connections to the Russian government (“I hope you can see your way clear to letting this go”) – is reminiscent of Nixon’s “smoking gun” tape, and again looks like obstruction of justice. Just as it was with Nixon, it could be the cover-up that will bring Trump down.

Given all this, will Congress impeach Trump over his alleged conversations with and firing of Comey? That’s as much a political question as a legal question. When Nixon, a Republican, was impeached, both the House of Representatives and the Senate were controlled by the Democrats. Today, both are controlled by Republicans. Despite his unusual behaviour as president, Republicans have shown themselves very reluctant to criticise Trump. His Gallup approval rating is a low 38 percent, but among GOP members – the people who get Republican politicians reelected – he remains relatively popular; 79 percent of Republican voters approve of Trump’s performance, according to a Politico/Morning Consult poll. When Nixon resigned, his approval rating was 24 percent. In other words, as poorly as Trump is doing, he may not be doing poorly enough to get impeached.

There are some signs that the Republican Congress may have had enough. Rep. Jason Chaffetz, the cautious chair of the House Oversight Committee, has asked the FBI for all “memoranda, notes, summaries and recordings” covering conversations between Trump and former FBI Director Comey. Depending on what is revealed in those notes, Republicans may feel increasing pressure to follow up on any further revelations. If the Trump ship is going to sink, Republicans won’t want to sink with it.

Some of Trump’s immunity from criticism comes from his supporters’ immunity to mainstream media. The Make America Great Again crowd isn’t watching CNN and reading the Washington Post; they’re watching FOX News and reading Breitbart. However, even this immunity may be starting to fade. It’s a bad sign for Trump when the Rupert Murdoch-owned, and normally Trump-friendly, New York Post puts the Comey memo on the front page in giant letters: “I Hope You Can Let This Go.”

Barring a sudden Trump resignation – and he is prone to sudden surprises – whatever happens will probably not happen quickly. There were 26 months between the Watergate break-in and Nixon’s resignation. The road to a Trump impeachment might be equally long. Investigations from the FBI, the House and the Senate are ongoing. This week’s news stories may lead to more investigations and perhaps the appointment of a special prosecutor. Much further down the road, if a great deal more dirt is revealed, the House Judiciary Committee may debate and then recommend an impeachment vote, the House may vote for impeachment and then an improbably high two-thirds of the Senate – 67 members – may vote to convict. This has never happened to an American president. Yet.