Power Of Impeachment And The Trump Presidency
by Paul Hamlin
Impeachment talk is on the rise in national politics. Our nation is divided deeply by the words, actions and policies of the current administration. We recently had a group of (58) from the House of Representatives bring forward articles of impeachment against President Trump and it was quickly tabled.
The division in the nation has many scrambling to simply vote for the candidates that are most likely to bring forward articles of impeachment. Maybe, we should slow down and look a little deeper into impeachment before we base our entire vote on this issue. Impeachment is never a great idea, even though at times it be mandatory or required.
The impact of impeachment can and will have lasting impact, and ideally it is far better to not put the nation through an impeachment process.
This is an attempt to look at impeachment and the modern ramification in a centrist or moderate perspective. The hope is that we can look at this without bias for or against the current administration.
It should be viewed for exactly what it is, a review with a deep understanding of the dangers to the republic of impeaching or not impeaching. Any serious discussion of impeachment will create a lasting ripple in the fabric of our democratic process, and should be approached with extreme care.
Small History Lesson (I promise)
Before the Constitution of the United States was adopted in 1788, there was a major controversy about the idea of impeachment. The founders of the nation divided themselves, with some claiming that there should be no power of impeachment, while others said impeachment would hold an executive branch in check to protect against crimes against the nation.
Adversaries (Charles Pinckney and Gouverneur Morris) of impeachment claimed that the legislative branch should not be able to usurp the power of the electorate and impeach the President.
Advocates (Benjamin Franklin, George Washington and Alexander Hamilton) declared that the legislative body was the perfect place to hold the President accountable and protects the nation from the development of another monarch.
Benjamin Franklin went as far as saying, “The Constitution’s impeachment procedures make the removal of the chief magistrate less violent, less disruptive, and less error-prone than assassination.” A severe statement that would be condemned in today’s political environment, but Franklin’s opinion nonetheless.
George Mason stated that “high crimes and misdemeanors” (a British law term) should be included in the language because treason and bribery did not protect the union from other “attempts to subvert the Constitution”.
Madison stated that without an impeachment clause the President “might betray his trust to foreign powers.” (See additional readings below the article for more details)
What does the Constitution Say
Article 2 Section 8 of the Constitution of the United States says the following:
“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.”
Treason is the act of conspiring for the harm of the United States with an enemy of the state that the United States is in active conflict with. Treason is an extremely high standard for impeachment, in order to be charged with treason you must have intent to conspire. It must be with an enemy of the United States, and it must be at a time of war.
It is important to know the meaning, because too often we throw around the word treason, but in truth it is a much more limited term.
Bribery is the acceptance of personal financial or political favor in exchange for information or actions that do direct harm to the United States. Again, there must be intent to harm the nation. There must be provable gain in exchange for those intentional harmful actions.
The financial gain may not be the hard part to prove, but intent is difficult in this case.
High crimes and misdemeanors seems to be the catch all in the impeachment clause and demands explanation and expansion. This term was a British legal term, that the framers best allowed some “wiggle room” on the reasons to impeach, and they left it intentionally vague.
The term was debated by the framers and edited several times before this form was accepted. They wanted to ensure balance, to protect the presidency against a Congress that simply didn’t approve of the job being done but wanted a sense of accountability for a strong executive.
High crimes and misdemeanors can not be separated from the other two charges though. The list of charges is meant to be removal only for the most severe infractions against the Constitution of the United States.
These are difficult and severe charges that must be levied, and substantiated, against a President before articles of impeachment should be considered. The House of Representatives is tasked with drafting articles of impeachment.
Once impeached the government official (not just for presidents) is tried before the Senate, traditionally with the Chief Justice presiding. If found guilty of the charges the official is removed from office, may be charged with crimes and will never be permitted to hold public office again.
For a primer on the impeachment process click here.
Past Impeachment’s
In 1868 Andrew Johnson was impeached by the House for violating the Tenure of Office Act when he removed Edwin Stanton as Secretary of War. The Senate hearing under the direction of Supreme Court Chief Justice Salmon Chase, narrowly acquitted the President.
The Tenure of Office Act was repealed in 1887, under Grover Cleveland, with continuous challenges to it’s Constitutionality.
The hope of Congress with Johnson was to remove a threat to their idea of Reconstruction of post-civil war southern states. Congress was unhappy with the former Senator from Tennessee and his lenient approach to Reconstruction, but they did not impeach on these grounds. Instead they impeached based on a Congressional act that was later deemed toothless.
By failing at impeachment, it emboldened not just Johnson, but future presidents. In truth the act strengthened the office of the President while weakening the power of Congress over the President. While not many people will argue that Johnson was a great president, many will argue that the impeachment and grounds for impeachment was a travesty to the Constitutional provision for impeachment.
In 1998 Bill Clinton was the second President in the history of the United States to be impeached, as the House of Representatives brought forward charges of perjury and obstruction of justice.
The Senate voted to acquit on both charges in 1999, well short of the mandatory two thirds need to convict and remove a sitting President.
When the impeachment proceeding began Clinton’s approval ratings were good but stagnant. The American people saw the impeachment as an overblown congressional attempt to remove a political opponent, not based on malfeasance, but on dislike of personality and personal (albeit unethical choices).
Most American felt that a sex scandal of a politician was not grounds to remove a president, to the point that many forgot the original intent of the investigation against the President. Just as with Johnson, impeachment empowered the President, gave him popularity and moved him forward, not backwards.
In our history, the United States has impeached two Presidents and neither of them was found guilty. This may not be the case if Nixon hadn’t taken the advice of Republican congress people and resigned before the impeachment process began.
After the impeachment of Johnson, he became emboldened with his Reconstruction plan. It would be extremely difficult to impeach a President twice, as it would look petty, vindictive and a complete usurpation of the voice of the voter.
Consequences of Impeachment
The impeachment process has dire, almost fatal consequences, especially if abused. The framers of the Constitution laid out lofty and difficult reasons to impeach. They are to protect the authority of the presidency and the sanctity of the American people’s vote.
If impeachment does not succeed, the President is free to execute the full duties and responsibilities of their office, with full authority as granted to them by the constitution. Not only does the President maintain their authority and power but may be politically strengthened.
Impeachment of a President is not just a legal proceeding, it is a political proceeding. It is designed to remove a high officer of the government from their role in the government. With that said, any political proceeding has consequences, no matter which side prevails in the process.
A successful impeachment and removal guarantees that the President can never hold elected office again and it allows for criminal offenses to be pursued.
Impeachment is guaranteed to create a Constitutional crisis, as it is a statement that the most powerful government officials have conspired against the United States, and it removes an elected person from a high office. This has consequences among the Congress, among the courts and among the electorate.
When the people elected this person to hold this high office, they placed faith and trust in this person. When you remove them, it is can be perceived as an attack on the American people’s vote, which is sacrosanct. There are extreme political ramifications to impeachment on both sides.
The opportunity to impeach may only come along once, because you will not attempt to impeach the same President twice. The political visual is pettiness and vindictiveness, not to mention how long the proceedings take. Unsuccessful impeachment attempt may remove the possibility of future impeachment and remove this ability from your arsenal of checks and balances.
However, if the rules of law are ignored and a President is seen as completely disregarding the Constitution, it is the duty and responsibility of the Congress to protect and preserve the Constitution and the laws of the land. This is the reason that the impeachment clause exists, it prevents the formation of a dictatorship or a monarchy in the United States. It must be viewed as a solemn duty, and not to be tread on lightly or haphazardly.
This power is a power to upturn the system of government for just cause.
Impact in the Trump Era
The consequences of pursuing, or not pursuing, impeachment on Donald Trump are untenable and varied. A few examples of how this could play out:
- A failed impeachment attempt pretty much guarantees a strengthened President Trump. A failed attempt could be the catalyst the electorate needs to declare political war against what may be seen as unjust political grandstanding. It could easily create a situation where an attempt to impeach guarantees that President Trump wins his reelection bid easily in 2020, with a disgusted electorate being tired of the political games.
- A successful impeachment and removal may create unsustainable tension in the electorate. The people who voted for Trump will feel that their vote was cheapened. This could actually create more division in an already divided nation. There have already been threats of open violence and demonstration if impeachment and removal occur.
- It is conceivable that even with a Democratic House of Representatives the political fallout would be too great, too costly to even attempt to bring forward articles of impeachment. Not to mention that, based on timing it may be quicker to focus on the presidential election of 2020.
- If the American electorate feel that the House has ample evidence to impeach and they fail to do so, there could be extreme fallout in Congress. It could create cascading calls for resignation or recalls. If the rule of law is not upheld there could actually be a backlash that creates Congressional anarchy.
No matter what happens, we are heading toward a constitutional crisis, if we aren’t already in one. The powers of the founding document will be tested. There will be an all-out war to challenge the powers of each branch of the government. The Supreme Court will need to step in, but the question is, does the Supreme Court have the courage to actually protect the Constitution?
There are so many open questions.
What We Can Do:
- Don’t get ahead of yourselves. As of right now there is no evidence of any illegal actions directly tied to the President. Calls for impeachment right now are premature.
- Protect the investigation.
- Be Honest. This investigation is not solely about Trump. If you feel like this is a smoking gun against Donald Trump, you may be looking at it wrong.
- This investigation is an attempt to discover how the Russian government meddled in the 2016 election. It is to protect the democratic process from outside influence.
- It is to discover the extent at which any citizen cooperated with a foreign power to corrupt the democratic process of the United States.
- It is to follow ALL illegal activity of any party associated with the corruption of the electoral process.
- There are specific limitations that are placed on the investigation by the Trump Department of Justice.
- Allow it to come out. Be patient and wait for the findings of the investigation to come out in full. Do we need to pay attention to the news? Sure, but should we rely on it as gospel? No. We will not know what Mueller’s finding are until it is released.
- Be balanced. If we are to place faith in Mueller and the investigation now, we must do so in the future. No matter what the findings are, including exoneration of the President.
- If it exonerates Trump, we still prosecute all parties involved in this aggressive action against the democratic process.
- If it implicates Trump, we prosecute to the fullest extent of the law, holding all citizens accountable to their personal decisions. This may happen in coordination with impeachment or it may happen after the 2020 election
Any implication of Trump in actions may or may not lead to impeachment. This is where the politics and the timing come into play:
If the findings of the investigation do not come out in 2018, will impeachment, which takes time (up to two years), be completed before the 2020 election?
If not, is it worthwhile to start impeachment proceeding prior to that election?
Do we hold off on impeachment if and only if Trump gets re-elected?
If he is implicated, does the Republican Party ask for resignation or for Trump to not seek re-election?
Ideally, we would say implication means impeachment, but that may not be true, and in some cases should not be true. It may be better, to protect the electoral process and the Constitution, to simply elect an administration out of office. There have been instances where this has happened, where the political environment and the state of the nation meant that impeachment was not sought.
If we are going to the ballot box voting solely for a person who we believe will pursue impeachment, history teaches us that the politics are not that cut and dried. It is difficult to impeach and failure to impeach can damage the system and harm the politician. While they make promises now to pursue impeachment, don’t count on it.
This is complicated. My recommendation is to focus on the ballot box: 2016, focus on candidates that will hold firm to principles of the Constitution, and be wary of party politics; 2020, refocus on finding and electing ethical, Constitutional, principled leaders to elect. Dedicate our energy on the things we can control; the quality of our candidates, the rhetoric of our candidates, the principles of our candidates.
That doesn’t mean that if there are egregious instances of abuse of power, or high crimes and misdemeanors, that we don’t pursue them with impeachment, but it does mean that as someone who does not control that process instead I will focus on what I can control. My vote.
(Paul Hamlin is running for US House of Representatives as an independent candidate in New Jersey’s 1st Congressional District. You can find out more about him and his candidacy at paulhamlin.com).
Additional Reading:
https://memory.loc.gov/ammem/amlaw/lwfr.html
http://www.libertylawsite.org/2018/02/23/the-constitutional-propriety-of-impeaching-the-president-andrew-johnson-150-anniversary/
https://www.smithsonianmag.com/history/inside-founding-fathers-debate-over-what-constituted-impeachable-offense-180965083/
https://www.history.com/topics/impeachment-in-us-history
https://www.theatlantic.com/politics/archive/2017/06/cass-sunstein-impeachment-trump/532080/
http://ejournalofpoliticalscience.org/benedict.html
https://constitutioncenter.org/blog/what-the-founders-thought-about-impeachment-and-the-president
http://www.chicagotribune.com/news/nationworld/politics/ct-robert-mueller-congress-reaction-20170517-story.html
https://fivethirtyeight.com/features/constitutional-crisis/
http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1912&context=facpubs
