“You are entitled to your opinion. But you are not entitled to your own facts.”
Daniel Patrick Moynihan
Daniel Patrick Moynihan
Article 2, section IV of the US Constitution states that “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.”
It is worth clarifying the process and implications of impeachment before we dive into a discussion of the current proceedings. For starters, if a President is impeached it does not mean that he or she has to vacate the office. Bill Clinton was impeached and served out his full term. Removal from office is a separate process that requires a trial in the Senate. It is presided over by the Chief Justice of the Supreme Court, with Senators serving as jurors.
In the House, Democrats currently hold 235 seats and need 218 votes to reach the majority required to proceed with articles of impeachment against President Trump. If the House proceeds to impeach, the Senate will conduct a trial and vote on whether to remove the President from office. Given that Democrats do not hold a majority in the Senate, they would need twenty Republicans and two independent senators to join them to remove Mr. Trump from office.
Additionally, removal from office does not bar Mr. Trump from running again in 2020. The Senate would need a further vote under Article I, Section 3 of the constitution to determine if the offence is severe enough to prevent the President from ever holding public office again.
Now let’s get to the matter of the impeachment itself. Beyond bribery and treason, which are clear cut, I believe the founders purposely left the words “high crimes and misdemeanors” vague so as to ensure that this mechanism would not be used frivolously or in a partisan manner. This is why removal from office requires a detailed investigation by the House and then a further trial in the Senate, with a super majority needed to remove a President from office. It is rare for one party to hold the necessary seats in both chambers at the same time; thus it requires an offence so egregious that it brings unity across party lines to remove a democratically elected official from the highest office in the country.
Another point worth noting is that impeachment is not a legal process. While similar terminology is used, this is a political process. There is no burden to prove that the President broke laws in the same way you would need to in a courtroom. Impeachment is driven by the legislature deeming that the actions of the President constitute an egregious abuse of power.
Given that only two Presidents have been impeached, the first in 1868, and none ever removed from office there is little by way of a roadmap for this process. Nixon resigned before Congress could vote to impeach him. Interestingly, in the case of Bill Clinton the House appointed a special prosecutor to investigate his crimes and did not conduct public hearings. The vote by the House judiciary committee to move forward with a full impeachment inquiry against President Clinton was along party lines with every Democrat opposing it.
The special prosecutor’s investigation into President Clinton dragged on for four years, by the end of it public opinion turned in the favour of the President even though there was evidence that he had lied under oath and obstructed justice. This is why President Clinton was acquitted by the Senate with ten and five Republican Senator's, respectively, joining every Democrat to acquit him on each of the charges. At the time polls showed that the majority of the country was against removing the President from office with 57% approving the Senate's decision to keep him in office and two thirds stating that the contentious impeachment process had been harmful for the country.
Of course, we live in very different times from when President Clinton was impeached and President Nixon resigned. In 2019, the country is probably about as divided as it was leading up to the civil war, and credibility among lawmakers is in short supply on both sides of the aisle. Trust in government and in public officials is at its lowest ebb since reaching a peak in the 1970’s.
On one side you have Republicans who seem to have not only abandoned their most cherished Conservative philosophies of small government, but also no longer seem to believe that the person holding the highest office in the land should be honest, decent or act with decorum. Republicans like Paul Ryan, John McCain and Jeff Flake, who were willing to stand up to the President and hold him accountable in private and when necessary in public, have either resigned or are no longer living. Even lawmakers like Senator Graham who openly lambasted candidate Trump during the primaries have turned into allies. So what accounts for this loyalty? If you look at Trump’s record he has delivered on issues that align with their political interests, from corporate tax cuts and dismantling regulations to appointing conservative justices, including two to the Supreme Court. With the Presidents’ base holding firm and in the absence of a smoking gun, they are making a political calculation to support the President and will continue to do so until public opinion overwhelmingly swings against him.
On the other side you have Democrats who have been publicly calling for the President's head since his shock victory in 2016. They have spent the best part of three years investigating every aspect of the President’s public and private life, from scrutinising his charities and foreign business interests to trying to expose his tax returns. First they were hopeful that the trial of Paul Manafort would sink Mr. Trump. Then they proclaimed that Michael Cohen’s testimony “moves the Needle' to Trump WH”. When nothing worked they put their hopes in the Mueller report landing the final blow and swaying public opinion in favour of impeachment. Adam Schiff, Chairman of the House Intel Committee, leading the investigations into the President publicly stated at the time that there was "ample evidence" of collusion in plain sight, "and that is true." The very real danger for Democrats is that because they have been crying wolf for so long, their case for impeachment, even if it is a strong one, will be viewed as nothing more than partisan overreach, or worse a move to placate an angry and frustrated base ahead of a crucial election.
This is the reason Speaker Pelosi waited so long to officially move forward with an impeachment inquiry even though a majority of Democrats had been calling for it for over a year. The Ukraine whistleblower story led to the first marked shift in public opinion, with a slim overall majority (52%) supporting an impeachment inquiry. This shift was entirely due to Independents. The lessons of dragging out an impeachment investigation also weigh on Speaker Pelosi because it allowed President Clinton to leave office with a 65% approval rating, the second highest of any President after FDR. This is the reason she urged Democrats to move from closed door to public hearings and has vowed publicly not let the impeachment circus drag on too far into next year.
The other issue that Speaker Pelosi astutely understands is that nobody, including Trump supporters, denies that the President routinely lies, demeans people, behaves erratically and possesses none of the qualities of a role model. In fact, 70% of Americans agree that President Trump’s request to a foreign leader to investigate his political rival was wrong. There is no debate on this fact. However, not everyone agrees that this is reason enough to tear an already divided and polarised country further apart, and many believe this is why we have elections. If we look at support for impeachment and removal, beyond Independents it breaks down along party lines with 84.6 percent Democrats supporting it and 91.7 percent of Republicans opposing it. These numbers have held steady for the last year.
Finally, what makes the Democrat's case harder to make is that there is no smoking gun, like a stained blue dress or a conspiracy to destroy secret White House tapes. At the end of the first two weeks of hearings not one witness “testified that Trump himself directly ordered them to make a quid pro quo explicit to the Ukrainians.” In fact, if one thing has come to light during the public hearings, it is that President Trump made little attempt at subterfuge. Instead he openly made it clear to his ambassadors, diplomats and senior advisors that he wanted to press Ukraine to open an investigation into the Bidens, and in the end the military aid was released without any such commitment. When there is subterfuge, chicanery or evidence of a cover-up, it becomes easier to make the case for a conspiracy and point at wrongdoing, but in the absence of this, the whole thing could be painted as more clumsy than criminal.
This is why we saw Speaker Pelosi use the word bribery for the first time after the initial round of public hearings. Speaker Pelosi is aware that having witnesses simply corroborate facts will not be sufficient to sway people since the majority already agrees that the President’s actions were wrong but not on whether it rises to the level of impeaching and removing the President from office. Public opinion is deeply entrenched along partisan lines and will not be swayed easily. Ultimately, the severity and punishment for the President’s “high crimes and misdemeanors” will boil down to the strength of the argument made by Democrats or the defense put up by Republicans. The key for both sides is to make their case and convince Independents.
Democrats will need to offer compelling new evidence while trying to ensure that this process does not in the end help the President, by painting him as a victim of legislative overreach, and allow him to win a second-term.