November 18, 2018

To Accuse

By Stephen Tuttle | April 21, 2018


Some Republicans running for the U.S. House of Representatives have adopted an interesting campaign strategy: Elect me, or they will impeach him. The Democrat corollary —  elect me, and I will impeach him — hasn't yet appeared but likely will.  

It's entirely possible if Democrats regain control of the House there will be Articles of Impeachment introduced. Maybe even several. It's less likely any will get much further. 

To impeach — which only means to accuse — a president isn't so easy, and it's even harder to convict one. In fact, no president has ever been removed from office as the result of impeachment and conviction. Richard Nixon would have been the first, but he resigned before the process unfolded fully. 

Impeachment starts with an Article of Impeachment being introduced in the House like any piece of legislation. Hearings would be held, witnesses called, and evidence introduced. If it passed the House Judiciary Committee, debate would be held in the full House. If a majority of the House voted affirmatively, the president would have been impeached, or accused.

A trial would then be held in the Senate. Again, witnesses would be called and evidence introduced, the president represented by counsel, and the House lawyers representing the prosecution. The Chief Justice of the Supreme Court would serve as judge and the Senate as the jury.

A conviction requires a two-thirds majority, or 67 Senators, a very high threshold in any political environment.

Only twice has the United States witnessed impeachments and trials. 

Andrew Johnson was impeached in 1868 on 11 different articles, most notably his decision to simply ignore the recently passed Tenure of Office Act. The Senate failed, each time by a single vote, to convict on the first two articles. The other nine charges were abandoned when it became clear they would always be one vote sort of conviction.

Bill Clinton was impeached in 1998 and tried by the Senate in 1999 on charges of perjury and obstruction of justice. This was not, as most people seem to believe, connected to the Monica Lewinsky scandal but to testimony Clinton gave under oath in the Paula Jones lawsuit. 

There was never any chance he would be convicted, and the Senate predictably fell 17 votes short on the perjury charge and 22 short on the obstruction of justice charge. 

It should be noted it is more than likely Richard Nixon would have been impeached (the Articles of Impeachment had already passed the Judiciary Committee and were on their way to the full House) and convicted had he not chosen to resign.

We now know Nixon could be heard on tape, among other outrages, ordering underlings to break in to the Brookings Institute, crack a safe, and destroy the Vietnam-related documents therein. That was an entire series of unmistakable high crimes in about 15 seconds. 

The problem for current Democrats eager to remove this president from office is there is not yet any evidence he has committed an impeachable offense. Article II, Section 4 of the U.S. Constitution specifies “ ... treason, bribery or other high crimes and misdemeanors.”  

Undefined “high crimes” leaves a little wiggle room but not much. As far as we now know, none of Trump's offenses meet the constitutional test for impeachment.

His alleged serial philandering with and pay-offs to various young women, all of which he has denied, are not crimes. The allegations of misogyny, xenophobia, racism, nativism, and the rest, which he seems to frequently confirm on Twitter, are not impeachable, either. Even his constant lying is little more than annoying unless Robert Mueller finally gets him under oath, and Trump can't help himself.   

The president may be offensive to many, but no one has yet fully connected the dots between him and impeachment. Even then it wouldn't be so easy. 

Let's assume, hypothetically, Democrats regain the House, and they sneak in a couple more Senators. With the two Independent senators who caucus and vote with the Democrats, they would have control of both houses of Congress. 

They might be able to get Articles of Impeachment heard in the House and they might even have the votes to impeach. But they will be way short in the Senate, absent some kind of smoking gun evidence of Trump criminal wrongdoing. Their 51 solid votes means they have to somehow find 16 Republicans willing to convict and remove from office a sitting president of their own party. 

Impeachment hearings of this particular president, who doesn't believe in many of the rules of decorum, would be especially interesting. To accuse him is possible. To convict, based on what we now know, is so unlikely Democrats would be better served focusing their energy on local elections and policies other than just opposing the president.   


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