Impeaching Donald Trump: A Game of Political High Stakes Poker

COMMENTARY Political Process

Impeaching Donald Trump: A Game of Political High Stakes Poker

Oct 8th, 2019 7 min read
COMMENTARY BY
John Malcolm

Vice President, Institute for Constitutional Government

John is Vice President for the Institute for Constitutional Government and Director of the Meese Center for Legal & Judicial Studies.
Speaker Pelosi and Rep. Schiff update members of the media on the latest developments related to the impeachment inquiry at the U.S. Capitol on October 2, 2019. Win McNamee / Staff / Getty Images

Key Takeaways

The impeachment process is not intended to serve as a partisan political weapon.

This is political high stakes poker, and the Democrats think they hold the winning hand.

Given the facts as we know them today, it is hard to imagine that 67 Senators, would vote to convict Trump and remove him from office.

On September 24, Speaker Nancy Pelosi announced that the House of Representatives would begin a formal impeachment inquiry against President Trump. His dealings with Ukrainian President Volodymyr Zelensky, she said, constituted a “breach of his constitutional responsibilities.”

Some members of the House began calling for Trump’s impeachment less than two weeks after his inauguration. A resolution of impeachment was introduced on July 12, 2017. But this is more serious. Pelosi’s announcement represents a call to action, not just more heated rhetoric.

So, before this process begins, let’s review what impeachment is, and what it is not.    

The impeachment process is designed to immediately remove public officials from office for serious misconduct.  More specifically, the Constitution provides: “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.” 

The impeachment process is not intended to serve as a partisan political weapon. It is meant to apply to those who are unfit for office, not those who are merely incompetent or disagreeable. Its purpose is to address serious misconduct, not to settle policy disputes.

While other countries can remove a head of state following a parliamentary vote of “no confidence,” ours is not a parliamentary system. Instead, we resolve policy disagreements through elections and the legislative process.  Indeed, during the Constitutional Convention, it was proposed that “maladministration” be added to the list of impeachable offenses, but this language was rejected.

But who does the impeaching, and who does the convicting, and what is a high crime and misdemeanor? 

The Constitution provides a clear answer to the first question: “The House of Representatives … shall have the sole Power of Impeachment.”  It does not, however, specify how such proceedings should be initiated. In recent years, the House Judiciary Committee has initiated such proceedings, then drafted and voted on proposed articles of impeachment which, if approved, are sent to the full House for its consideration.  It takes only a majority of the House to approve one or more of these articles and impeach the president.

Impeachment does not automatically remove someone from office. The articles of impeachment are akin to separate counts in an indictment—charges that have yet to be proven at trial.

Once a president or other civil officer is impeached, the matter is sent over to the Senate for trial, with select members of the House serving as “managers” to prosecute the case. The Constitution provides: “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation.” 

Moreover, “no Person shall be convicted without the Concurrence of two thirds of the Members present.” This means that before someone can be removed from office, 67 Senators must vote to convict – a very high threshold.  This was by design.  As Alexander Hamilton wrote in The Federalist No. 65: “The awful discretion which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons.”

The Framers wanted to make sure the senators engaged in serious, sober deliberations and removed someone from public office only if there was a broad consensus that cut across the country that such removal was warranted. 

And what about the phrase “high Crimes and Misdemeanors”? The Constitution does not define it, although its pairing with two other well-established crimes – bribery and treason – certainly suggests that it was meant to encompass similarly heinous offenses. (“Misdemeanor” at the time meant a “misdeed,” not a minor criminal offense as it means today). 

Although the process may resemble a criminal trial, impeachment is designed not to punish an official but to protect the public from misconduct. The Constitution explicitly provides: “Judgement in Cases of Impeachment shall not extend further that to removal from Office, and disqualification” from holding a future federal office.

To be sure, an impeached official can be held “liable and subject to Indictment, Trial, Judgment and Punishment, according to Law” in a later, separate proceeding. For this reason, it has been generally accepted, and the Department of Justice’s Office of Legal Counsel has similarly concluded, that “high Crimes and Misdemeanors” are not restricted to criminal conduct.

The Federalist No. 65 goes on to state that impeachment should be reserved for:

those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.

While clearly meant to encompass only the most serious abuses of public trust or outright criminality, as a practical matter, Gerald Ford may not have been far off the mark when he stated, while serving as House Majority Leader: “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”

Throughout our nation’s history, only two presidents have been impeached – Andrew Johnson in 1868 and Bill Clinton in 1999, neither of whom was convicted by the Senate. Andrew Johnson barely survived, by one vote, while Bill Clinton was acquitted with room to spare – with 45 Senators voting to convict him on the obstruction of justice charge and 50 Senators voting to convict him on the perjury charge, well short of the magic number of 67.

Many people believe that Richard Nixon was impeached, but he wasn’t. After the House Judiciary Committee approved three articles of impeachment and sent them to the full House for consideration, several influential Senators and Congressmen visited Nixon and told him that it was all-but-certain that he would be impeached and convicted.  He resigned the next day, short-circuiting the process. 

Significantly, judges have virtually no role to play in the impeachment process. In 1993, in a case involving a federal judge who was removed from office, a unanimous Supreme Court held that the standards and procedures utilized by the members of the House and Senate are for them to decide, not judges. Its reasoning: the House has the “sole” power to impeach, and the Senate has the “sole” power to try impeachments. The only role that the judiciary plays is that the Constitution specifies that “[w]hen the President of the United States is tried, the Chief Justice shall preside” – just as Chief Justice William Rehnquist did during the impeachment trial of President Clinton.

Since the Constitution was ratified in 1788, only 19 federal officials have been impeached. Seventeen were tried in the Senate (one  - a federal judge - resigned prior to the trial, and one – a U.S. Senator – was expelled under the Senate’s own rules).  Eight – all federal judges – were convicted and removed from office, and two more resigned during the trial. 

Will President Trump be number 20?  This is political high stakes poker, and the Democrats think they hold the winning hand. 

The Democrats appear confident that they will be able to establish a quid pro quo -- that President Trump deliberately withheld $391 million in military aid from Ukraine and communicated to President Zelensky that he would not release those funds unless and until the Ukrainian government provided derogatory information about former Vice President Joe Biden—Trump’s main political rival—and his son Hunter.

President Trump and his supporters contend that nothing improper occurred during his July 25, 2019, call with President Zelensky. According to the detailed memorandum of the call, at no point did Trump threaten to withhold aid from the Ukrainians. And while he certainly mentioned Joe Biden, he also clearly referenced the official probe that had recently been initiated by Attorney General William Barr into the origins of investigation against the Trump Campaign for possible collusion with the Russians to interfere in the 2016 election. 

President Trump contends that there was nothing wrong with asking President Zelensky, who ran on an anti-corruption platform, and his government to cooperate with that investigation, since rumors were rampant that Ukraine may also have attempted to interfere in our election. Further, Trump argues that he did not pressure Zelensky, and that former Vice President Biden has admitted that he threatened to withhold $1 billion in assistance from the Ukrainian government unless Viktor Shokin—a Ukrainian prosecutor who has said he was investigating an energy company that had just appointed Hunter Biden to its Board and was paying Biden $50,000 per month – was fired, which he was.   

There is another aspect to this, for the Democrats this is not only an offensive maneuver, it is a defensive maneuver.  They know that Department of Justice Inspector General Michael Horowitz is going to be issuing his report about potential abuse of the Foreign Intelligence Surveillance Act. They also know that John Durham, the U.S. Attorney in Connecticut who has been tasked by General Barr to investigate the origins of Operation Crossfire Hurricane, the investigation against the Trump Campaign for possible “collusion” with Russia to interfere in the 2016 election, will soon be issuing his own report and that individuals may be indicted. 

That is why some Democrats are also criticizing Trump’s request, for example, to the Australian Prime Minister for assistance with Durham’s probe; they want to conflate all these messages to plant in the public’s mind that all such requests for assistance are improper – a preposterous proposition. This is also why former Attorney General Eric Holder, who is carrying a lot of water for the Democrats, said that Barr is “paying a price” and suggesting that “he's acting as the president's lawyer as opposed to the attorney general, and then it has a negative impact on the Justice Department as well.” In short, the Democrats are looking to damage Barr’s reputation and take the sting out of what they must suspect will be a bad series of stories that are about to break.

Democrats hold a comfortable majority of House seats, so it is entirely possible, if not likely, that the lower chamber will impeach the president. Still, given the facts as we know them today, it is hard to imagine that 67 Senators (which would have to include at least 20 Republicans) would vote to convict Trump and remove him from office.

Will the public see the impeachment effort as a justifiable maneuver to remove a corrupt president or will they see it as a “witch hunt” designed to undo the results of the last election and nullify the votes of the nearly 63 million people who voted for Trump?

During his impeachment process, President Clinton’s approval rating never fell below 60%. Clearly the public did not believe that Clinton should be removed from office for lying under oath about his affair with Monica Lewinsky, and the Republicans paid a heavy price at the ballot box for putting the country through what they believed was an unnecessary ordeal.

Democratic Congresswoman Alexandria Ocasio-Cortez recently gushed that pursuing the impeachment of President Trump “puts the party in a new direction.” That is certainly true. What is not clear, though, is whether that direction is up or down.

This piece originally appeared in The Federalist Society