In our final episode of a three part series on impeachment expert John Malcolm says it’s highly likely that the House of Representatives will impeach President Trump -- and it could be as soon as next month. Malcolm discusses why in moving forward with this impeachment Democrats are playing a game of political high stakes poker.
MICHELLE CORDERO: From the Heritage Foundation I'm Michelle Cordero and this is Heritage Explains.
CORDERO: Congress returned to D.C. This week and the house impeachment inquiry is picking up steam with new testimonies. In our final episode of a three part series on impeachment, our guest today, John Malcolm says that it's highly likely that the House of Representatives will impeach President Trump and it could be as soon as next month.
CORDERO: Today, Malcolm discusses why in moving forward with this impeachment Democrats are playing a game of political high stakes poker. Malcolm is vice president of Heritage's Institute for Constitutional Government and Director of the Meese Center for Legal and Judicial Studies.
CORDERO: John, you recently wrote that because Democrats hold a comfortable majority of House seats it's entirely possible, if not likely, that the lower chamber will impeach the president. Do you still believe this will happen?
JOHN MALCOLM: Yes, I do. I'm not sure it's a great thing for the country. Predictive of going into an election year of course, and the public will have an opportunity to weigh in on what they think of President Trump. But yeah, look, the House under the constitution has the sole power of impeachment. It only takes a majority of the members of the House to impeach a president and I think it is likely that they will do so. Now there are a lot of people who think that once you impeach somebody that they are thrown out of office, that is not true. An impeachment is essentially the equivalent of a grand jury returning an indictment and then it all moves over to the Senate for a trial and it takes two thirds of the senators or 67 senators to actually approve an article of impeachment and remove somebody from office. We've had two presidents who have been impeached, Andrew Johnson and Bill Clinton. Yet both of them were acquitted, is the official term or not removed by the Senate.
CORDERO: In reports that Heritage has published, I've read that the Senate has no obligation to act on a House impeachment. But I've also read that Mitch McConnell said he has no choice that he'll have to take it up. So which one is it?
MALCOLM: Well under the constitution, it doesn't. All it says is that the House has the sole power to impeach and that the Senate has the sole power to try impeachments. It doesn't say that they have to try impeachments. There are Senate rules though that say that if the House makes a referral that they will have a trial and I think as a political matter that the country wouldn't stand for the Senate not having a trial of some sort, but the Senate gets to set the rules. They can have a full blown trial with witnesses and cross-examination that goes on for days if not weeks. Or they can do kind of what the Clinton impeachment trial was like, which is have the House managers, who serve as the prosecutors if you will, come in and do summaries of the evidence as they believe the evidence was on the various articles of impeachment.
MALCOLM: I think the only witness, there was no live witness during the Clinton impeachment trial. I think they played an hour or two of a videotape deposition from Monica Lewinsky. So if the Senate gets to set the process, the trial might be over in a day or it might go on for awhile. But I think that as a practical matter and a political matter that if there is a referral from the House, there will be a trial of sorts in the Senate.
CORDERO: And how many votes would they need in the Senate?
MALCOLM: Sixty-seven and so at the moment what you have is 45 Democrats and two independents, Angus Kay and Bernie Sanders who typically vote with the Democrats. So you would need to have at least, assuming that they all voted in favor of convicting President Trump, you would need at least 20 Republican Senators crossing over to get to the magic number of 67.
CORDERO: And that seems unlikely.
MALCOLM: It seems unlikely based on the evidence that I've seen to date. Of course, they're still taking testimony from different witnesses. I never want to guess ahead of time what facts will be uncovered, but based on what's out there I certainly don't see that happening. You certainly don't hear anything like 20 senators expressing serious reservations about President Trump and threatening to actually convict him.
CORDERO: So let's talk about fallout. What were some of the political consequences for those impeached in the House but not removed from office? What happened after Johnson was impeached?
MALCOLM: Well, he continued to serve out his term. He was a very, very controversial, a president. I actually think that the strong argument for impeaching him and convicting him was the fact that he tried to undo reconstruction, which had begun under President Lincoln. What he actually got impeached for was violating the Tenure of Office Act. The Tenure of Office Act said that once somebody had been appointed by the president and confirmed by the Senate that the entire Congress would have to take a vote on whether that person could be removed. And Andrew Johnson said, "Nope, don't think so. These are executive branch appointees and I'm going to fire them." And he fired Edwin Stanton, who was Lincoln's Secretary of War, I believe. Might've been Secretary of State, but I think his Secretary of War, Edwin Stanton and that's what got the House and Senate all up in arms.
MALCOLM: Turns out that history was on Andrew Johnson's side and that the Supreme Court eventually agreed that it was the president's prerogative to fire executive branch appointees, but that's not at the time how the House and Senate saw it. Although Andrew Johnson did survive his Senate trial, but barely. He survived by only one vote.
CORDERO: And Clinton, looking back after his impeachment Republicans did not fare well. Correct?
MALCOLM: Look, Clinton's popularity never fell below 60% during the entire impeachment ordeal. The public clearly did not want Bill Clinton to be removed from office even if they believed that he had lied in a deposition in the Paula Jones matter about his affair with Monica Lewinsky. Just didn't think that was serious enough to warrant his removal from office. There were two articles of impeachment against President Clinton, one for obstructing justice, the other for perjury. The obstruction of justice charge only garnered 45 votes. The perjury charge garnered 50 votes, but it was still well short of the 67 they needed to actually remove him from office.
CORDERO: John, since it's looking like this will happen in the House, if Trump is not removed from office, is there any recourse or does he just have to live with this?
MALCOLM: Oh no, he has to live with it. If he thinks that the Democrats overreached and his supporters think that the Democrats overreached, they can certainly make them pay at the ballot box. But look, history has now recorded that Bill Clinton and Andrew Johnson were the two presidents who were impeached and it's possible that Donald Trump may get added to that list. A lot of people think, by the way, that Richard Nixon was impeached. He in fact was not. The House Judiciary Committee voted to approve articles of impeachment. It was sent to the full House for a vote but the day that the House Judiciary Committee approved the articles of impeachment, several influential congressmen and senators went and spoke to President Nixon in the White House and said, "Look, the votes are there to impeach you and the votes are there to convict you," and he chose instead to resign the next day and that cut the process short.
CORDERO: You've called impeaching Donald Trump a game of political high stakes poker. What do you mean by that?
MALCOLM: Well, both sides have a lot to lose. If the Democrats win, it's sort of the old adage you're going to shoot at the king, you'd better kill him. So the Democrats are going to I think impeach the president. That's only happened, as I said, twice before in our nation's history. There are roughly 63 million people who voted for Donald Trump who are probably going to be upset about this and if the public thinks that this was an unfair process, they will make the Democrats pay in the same way that the Republicans paid after the Clinton impeachment.
MALCOLM: On the other hand, if there's more evidence that gets uncovered or people really believe that President Trump is a corrupt president, then he may get removed. Even if he doesn't get removed, if the public becomes convinced, well, maybe there wasn't enough to remove him from office, but we still don't like him, he may not get reelected next year.
CORDERO: I saw this could happen in the House, the impeachment as soon as Thanksgiving. That soon?
MALCOLM: Well, rumors in Washington are a dime a dozen. I've heard that. I've heard that they'd like to take a vote by Thanksgiving. If not by Thanksgiving, by Christmas. I initially thought that they would try to drag this out as long as possible and make it an election issue. But it seemed not, it seems that they want to try to get this over with quickly and if they take a shot at him and they miss, they want to have time to try to regroup and improve their electoral prospects in 2020. Of course if they take him out, that will upset the entire balance in terms of going into the election.
CORDERO: Last question. John, you know a lot about this. You've been in this town for awhile. How big of a deal is this?
MALCOLM: Oh, it's a big deal. I mean, impeachment is a rather radical remedy. So, we have other countries that can decide that they no longer like a president or they disagree with his policy choices and in parliamentary systems they can take a no confidence vote. If somebody loses a no confidence vote, they're immediately removed. We do not have a parliamentary system in this country. If you don't like somebody either for personal reasons or if you don't like the policy direction in which they're taking the country, then we wait for the next election for the citizens of this country to voice that disapproval.
MALCOLM: We remove people from office if we think that they are really dangerous and are abusing their office or engaging in outright criminality and are so dangerous that we can't keep them in office for another minute. That's really what an impeachment process is designed to do and so that is what the House will be expressing. That they consider President Trump, not that they don't like him or don't like his policies, but they consider him to be a really dangerous person. We can't afford to keep him in office anymore. We've only had, in this country, 19 people have been impeached. There have been 17 trials in the Senate. That's over almost 250 years. 10 people were removed, eight who were actually convicted, two of whom resigned in the middle of the trial. All of those were federal judges and that's where things like taking bribes and things on the bench. We haven't had, as I said, a president removed and so it is high stakes poker and we'll see what happens here.
CORDERO: Thank you so much.
MALCOLM: Good to be with you.