Will the Fervor to Impeach Donald Trump Start a Democratic Civil War?
By Jeffrey Toobin, The New Yorker
21 May 18
A push to remove the President from office may lead to disaster in the
midterms.
Al Green cuts a distinctive figure around the Capitol. He is, for starters,
the only male member of the House of Representatives with a ponytail. He
expresses himself with a kind of baroque humility; to the question “How are
you?” he invariably responds, “Better than I deserve.” (Elaborating, if
asked, he says that he is a “recovering sinner.”) He is unusual, too,
because, while most politicians call attention to their triumphs and hide
their failures, Green reserves a place of honor in his congressional office
for two reminders of crushing, if perhaps temporary, legislative defeats.
Last year, Green—who, since 2005, has represented a district centered on
Houston—sponsored the first vote in the House of Representatives on the
impeachment of President Donald Trump. On December 6th, the House rejected
Green’s initiative to bring impeachment up for debate by a vote of 364–58.
The following month, the House rejected a similar attempt by Green, this
time by a vote of 355–66.
Notwithstanding the lopsided results, Green has placed copies of each of the
resolutions in portfolios embossed with the gold seal of the House. The
December resolution is paired with a list of the members who voted for
it—they are called “THE FIRST 58.” The January resolution faces a page
containing the names of its supporters, who are called “THE HISTORIC 66.”
Green sent identical copies of the portfolios to all the congressmen who
voted with him.
Green, a Democrat, never supported Trump, although he also never imagined
that he would be advocating his forced removal from office. “I didn’t come
to Congress to impeach a President,” he told me. “I came to Congress to
negotiate the issues that I grew up with—poverty, housing—for the least, the
last, and the lost.” But Green began contemplating Trump’s removal when the
President fired James Comey, the F.B.I. director, in May, 2017. Three months
later, when Trump equated white-supremacist protesters in Charlottesville
with those who had rallied against them, Green decided to take formal
action: “That’s when I realized he was unfit to be President. He was
converting his bigotry into American policy.” When the resolution came up
for a vote, he said, “I did not lobby anyone, because, quite frankly, it’s a
question of conscience.” He pressed for the second vote after Trump referred
to Haiti and other predominantly black nations as “shithole countries.”
Green understood that his call for impeachment was symbolic, but he
expressed satisfaction with the number of votes he received—nearly a third
of the Democratic members of the House. “I concluded if but one person voted
for this article, this would be the right thing,” he said. “And we are not
finished.”
***
Today, the impeachment of Donald Trump exists on the brink of plausibility.
The sine qua non of an impeachment investigation, to say nothing of actual
votes to charge and remove the President, is a Democratic takeover of the
House in the November elections. Such a change now looks better than
possible, maybe even probable. At the same time, the President appears to be
in ever-greater legal peril from dual investigations, one led by Robert
Mueller, the special counsel, and the other by federal prosecutors in New
York. In April, F.B.I. agents raided the offices of Michael Cohen, Trump’s
longtime lawyer and fixer, and removed telephones and business records.
Cohen has not been charged with a crime, but the prospect of a case against
him, with the chance that he might plead guilty and reveal everything he
knows, represents a substantial risk for the President. In Washington,
Michael Flynn, Trump’s former national-security adviser, and Rick Gates, who
worked on Trump’s campaign and in his White House, have both already pleaded
guilty to charges brought by Mueller and agreed to coöperate with his
investigation. The full extent of Mueller’s findings is not known, raising
the possibility that more legal and political damage to the President is yet
to come. While Rudolph Giuliani, Trump’s attorney, may or may not be correct
that Mueller believes he lacks the legal authority to indict the President,
the possibility of impeachment clearly exists—if Congress has the evidence,
and the will, to proceed.
Trump supporters seem to welcome a fight over the issue. “If the Democrats
move for impeachment, I think they are playing right into the hands of the
President,” Anthony Scaramucci, Trump’s former White House communications
director, told me. “He doesn’t have Richard Nixon’s attention span or his
O.C.D. about record-keeping. There are no e-mails or tapes. He didn’t do
anything wrong on Russia, so he’ll be exonerated.” Scaramucci added, “You
are dealing with a human Pac-Man. He’s the toughest son of a bitch I’ve ever
met in my life.” Christopher Ruddy, the chief executive of the Newsmax Web
site, who sees the President regularly at Mar-a-Lago, in Palm Beach, told
me, “The guy loves a fight and will see this one as easily winnable.”
Republicans believe a push for impeachment would likely be a disaster for
the Democrats in the midterms. Steve Bannon, Trump’s former top strategist,
told me, “Anger and fear drive off-year elections, and we are going to talk
about how the Democrats want to shut us up by impeaching Trump when they
couldn’t beat him in 2016. People are talking about the Republicans losing
forty seats in the House, but if we make the election a referendum on
impeachment we could break even or pick up a few.”
Opposition to impeachment seems to be a rare point of agreement between
Trump’s followers and the leadership of the Democratic Party. Nancy Pelosi,
the Democratic leader in the House, told me, “I don’t like to talk about
impeachment.” She explained, “Impeachment is not a political tool. It has to
be based on just the law and the facts. When I was Speaker, people wanted me
to impeach George Bush for the war in Iraq because it was based on false
information, but you can’t just go from one impeachment to the next. When we
are in the majority, we are going to try to be unifying, and there is no way
to do impeachment in a bipartisan way right now.” The numbers back up
Pelosi’s wariness. According to a Quinnipiac University poll taken in April,
fifty-two per cent of American voters oppose impeachment. Another poll from
around the same time reported that forty-seven per cent would definitely
vote against a candidate who wanted to remove Trump from office. (In a sign
of how divided the country is, forty-two per cent would definitely vote for
a candidate who made such a promise.)
Still, a powerful grassroots movement has formed in support of impeachment,
a political cousin of sorts to the recent pushes for women’s rights and gun
control. According to Quinnipiac, seventy-one per cent of Democrats already
favor impeachment. To proponents, a nearly fifty-fifty split among the
voting public at this early date, before Mueller has reported his findings,
is significant. In primaries for the 2018 elections, some prominent
Democrats, such as Gavin Newsom, the lieutenant governor of California, who
is running for governor, made support for impeachment a major part of their
platforms. Tom Steyer, a San Francisco billionaire, has since last year been
running television advertisements supporting impeachment, and has generated
a mailing list of more than 5.2 million people. Steyer is now on a
thirty-city speaking tour. For the moment, he and his followers are outcasts
from the Washington consensus. But their passion, and the mounting evidence
against the President, raises the question of whether the drive for
impeachment is more likely to result in Trump’s removal from office or in a
Democratic civil war.
***
For roughly the first two centuries of the American republic, there was an
informal taboo on advocating for impeachment, even among a President’s most
outspoken critics. Only one Presidential impeachment proceeding occurred
during this period: in 1868, Andrew Johnson was impeached by the House but
remained in office after being acquitted in the Senate by a single vote. The
nominal ground for impeachment involved his dismissal of a member of his
Cabinet, but impeachment cases are always about the politics of the moment
as much as the evidence before Congress. Johnson’s case represented a final
act of the Civil War. Though he was Abraham Lincoln’s Vice-President and
successor, Johnson was a Democrat, and he resisted the Republican
Reconstruction in the South. Republicans used impeachment as a form of
revenge, which only reinforced the taboo.
Today, that taboo has faded. An investigation of Trump would follow Richard
Nixon’s forced resignation, on the brink of impeachment, in 1974, and Bill
Clinton’s impeachment and acquittal, in 1998-99. “The reason we are seeing
more demands for impeachment is the rise in partisanship. Our partisan
divisions now are not just sharp but among the sharpest in American
history,” Michael Gerhardt, a professor at the University of North Carolina
School of Law and the author of “The Federal Impeachment Process,” the
leading treatise on the subject, said. “These divisions are then taken out
on the President with calls for impeachment, which is an extreme measure and
appeals to people who have extreme positions.”
In Congress, there’s a surprisingly vigorous impeachment lobby expanding on
the work that Al Green began. Steve Cohen, a Democrat from Tennessee and the
ranking member of the Constitution and Civil Justice subcommittee of the
House Judiciary Committee, has fleshed Green’s bare-bones proposal out into
a full impeachment resolution. Cohen’s indictment has five counts. The first
charges Trump with obstruction of justice, based largely on Comey’s account
of how the President tried to restrain the Russia investigation and then
fired Comey when he would not oblige. The second count, referring to Trump’s
business interests, including his hotels, asserts that he violated the
foreign-emoluments clause of the Constitution, which bars federal
officeholders from receiving payments from foreign governments. In a similar
vein, the third count asserts that Trump directed federal money to his
businesses and hotels domestically. The fourth count charges him with abuse
of power for his criticisms of federal judges and for his pardon of Joe
Arpaio, the former sheriff of Maricopa County, in Arizona. The final count
claims that Trump undermined the First Amendment by repeatedly attacking the
news media. Like Green, Cohen is aware that there is not yet a consensus in
favor of impeachment, even among Democrats, but he is determined to plow
ahead. “It’s a moral decision to do the right thing, regardless of the
politics,” he told me. “Sometimes going on the record against evil may not
make you effective at first in stopping evil, but it can still contribute in
ways you don’t know.”
Jamie Raskin, a first-term Democrat from Maryland who was recently named
vice-chair of the Judiciary Committee, told me, “It’s hard to think of a
more impeachable President in American history.” As the only
constitutional-law professor who is a voting member of Congress—he teaches
at the law school of American University—Raskin has been adding intellectual
heft to the impeachment effort. “By firing Comey and waging war on the
special counsel, Trump has become the master of obstructing justice,” he
told me. “I have a thick notebook of obstruction-of-justice episodes.” He
listed, among other things, Trump’s threats against Attorney General Jeff
Sessions; Rod Rosenstein, Sessions’s deputy; and Andrew McCabe, the former
deputy director of the F.B.I. Raskin said, “It’s only because we’re
waist-deep in the Trump era that we forget how completely radical and beyond
the pale it is to have the President directly threatening the people who are
involved in a criminal investigation of him.”
Raskin told me that the foreign-emoluments clause “doesn’t get enough play,
because it’s unfamiliar, and it’s unfamiliar because no other President ever
came close to violating it before. But Trump has turned the federal
government into a money-making operation, which is just what the Framers
feared.” Raskin cited the many foreign guests with business interests before
the Administration who have stayed at the Trump International Hotel, in
Washington, as well as the business deals conducted by the President’s sons
overseas. He also pointed to a prohibition in the domestic-emoluments clause
against government payments to Presidents beyond their salaries. “We’ve had
the Secret Service and other agencies spend millions of dollars at Trump
hotels and resorts already,” he said. But Raskin also injected a note of
caution. “Most of my constituents regard impeachment in a very practical
way,” he told me. “They all see Trump as eminently deserving of impeachment,
but they don’t want it to become a fetish if it’s not going anywhere.”
***
Any initial investigation of impeachment would fall to the House Judiciary
Committee, and its chairman, in a Democratic Congress, would be Jerrold
Nadler, from New York. Donald Trump and Jerry Nadler represent contrasting
New York archetypes—the rapacious developer and the woolly-headed liberal.
Not surprisingly, the two men have a history. They first clashed more than
three decades ago, when Trump proposed a vast development on an old rail
yard on Manhattan’s West Side.
Nadler was born in Brooklyn in 1947 and educated at Stuyvesant, the
selective public high school, where his campaign for student-council
president was managed by Dick Morris, the future Clinton-era political
Svengali. After graduating from Columbia, Nadler thrived in the political
hothouse that was the West Side in those days. In his twenties, he was
elected to the New York State Assembly, and he attended Fordham’s law school
at night. Nadler’s district included the site of a Trump project, which was
originally called Television City because the centerpiece would be a
hundred-and-fifty-story building that would serve as a new headquarters for
NBC. As a courtesy, Trump invited Nadler to his office in Trump Tower to
show him the plans. “I thought it was grotesque,” Nadler recalled recently.
Trump told Nadler that the tower would be residential above the first forty
floors, and mentioned the Hancock Center, in Chicago, which is a hundred
stories tall. “He says, ‘Do you know that the people on the top floors of
the Hancock Center, before they go out in the morning, they call the
concierge desk to ask what the weather is, because they’re above the clouds,
they can’t really see it?’ I’m thinking, What a drag, but he’s getting
excited about this,” Nadler said. Nadler asked whether Trump intended to
live on the hundred-and-fiftieth floor of the new building, and Trump
replied that he did. “And I realized what this was all about,” Nadler said.
“He wanted to be the highest man in the world.”
The battle over Television City— later renamed Trump City and finally known
as Riverside South—became a multi-decade epic, even after the
hundred-and-fifty-story building was scrapped. (NBC decided to keep its
headquarters at Rockefeller Center.) Nadler helped lead the opposition, and
continued to do so after he was elected to Congress, in 1992. He made sure
that Trump did not receive federal mortgage guarantees for the project,
costing the developer millions, and he also stopped the removal of an
elevated highway, which would have increased the value of Trump’s
condominiums. Riverside South is now mostly completed, on a much diminished
scale. Trump’s interest was sold in 2005. But the dynamic of Trump and
Nadler’s relationship was set. In his book “The America We Deserve,”
published in 2000, Trump called Nadler “one of the most egregious hacks in
contemporary politics.”
Nadler turned seventy last June, and his political views, while emphatically
liberal, now hew closer to Pelosi’s than to Al Green’s. This is particularly
true on the question of an impeachment inquiry. Pelosi told me that Nadler
is “a champion for civil liberties and civil rights. He will have a long
agenda as chairman, and impeachment is the least of it—despite what his
constituents, and my constituents, probably want.” Nadler voted against both
of Green’s impeachment resolutions. “If you’re going to remove the President
from office, you are in effect in one sense nullifying the last election,”
he told me. “What you don’t want are recriminations for the next twenty
years—‘We won the election,’ ‘You stole it.’ And to do that you have to have
a situation where some appreciable fraction—not a majority, but an
appreciable fraction—of the people on the other side will grudgingly admit
by the end of the proceedings that ‘Yeah, they really had to do it.’ ” As
Nadler acknowledges, there is not only an absence of an appreciable fraction
of Republicans in the House supporting impeachment, there isn’t a single
Republican who does. He believes that any chance of bipartisan impeachment
is extremely remote in the current political environment, at least barring
the discovery of overwhelming evidence of wrongdoing. “The fact that someone
has committed an impeachable offense doesn’t always mean that you should
impeach him,” he said. I asked Nadler if he meant that the House should
impeach only if two-thirds of the Senate was going to vote to remove the
President. Not necessarily, he said: “An impeachment, even if it’s not
successful in the sense of removing the President from office, may in fact
be necessary and successful at saying, in effect, ‘You have violated the
constitutional order, you are threatening the constitutional order, you will
stop threatening the constitutional order. You will stop threatening the
rule of law.’ ”
Nadler was a member of the Judiciary Committee during the Clinton
impeachment hearings, in 1998. He emerged as an outspoken opponent of
impeachment, and several of the arguments he deployed are eerily similar to
those which Trump’s defenders have used. Nadler was a strident critic of
Kenneth Starr, the independent counsel, and he demanded audits of what he
regarded as Starr’s excessive spending in the course of the investigation.
Nadler described the case against Clinton as based on the Republicans’
general distaste for the President rather than on any specific acts of
wrongdoing. “It showed that a determined majority in the House could impeach
a President without legitimate reason,” Nadler said. The experience also
taught him that the public can exact a cost on the party that brings a
failed or unjustified impeachment. The Judiciary Committee held its
impeachment hearings in the weeks just before the 1998 midterms, and on
Election Day the Democrats reversed the usual fate of a party in its sixth
year of control of the Presidency by gaining five seats. Nadler said that
the Republicans “lost seats with the impeachment pending, and they lost
seats because people disapproved of it and they went ahead with it anyway.”
***
The purported lessons of the Clinton impeachment haunt the Trump
investigation, even though the cast of characters in Congress has almost
completely turned over in the two intervening decades. Of the thirty-seven
members of the Judiciary Committee in 1998, just seven remain—four
Republicans (Bob Goodlatte, the current chairman, Jim Sensenbrenner, Lamar
Smith, and Steve Chabot) and three Democrats (Nadler, Sheila Jackson Lee,
and Zoe Lofgren). Goodlatte and Smith are retiring at the end of their
current terms. (Abbe Lowell, who was the lead lawyer for Judiciary Committee
Democrats in the Clinton inquiry, is now in private practice and represents
Jared Kushner, President Trump’s son-in-law.)
The Clinton impeachment also played a role in Nadler’s campaign, last year,
to become the ranking Democrat on the Judiciary Committee. Democrats
generally choose their committee leaders based on seniority. Even though
Nadler was the longest-tenured Democrat, he was challenged for the
leadership by Zoe Lofgren, who represents a district in Silicon Valley. Part
of Lofgren’s pitch was her experience on the impeachment question. Not only
did Lofgren, like Nadler, serve on the committee in 1998; she was also a
young staffer for Representative Don Edwards in 1974, when she worked on the
impeachment proceedings against Richard Nixon.
For Lofgren, the Nixon example looms large. “The American people at some
kind of gut level understand the constitutional system,” she told me. “When
a President lied about having an affair with a young woman, that was gross
behavior, and the lie was arguably unlawful, but it had nothing to do with
government. With Nixon, having an enemies list and using the elements of the
federal government to destroy your enemies was about the abuse of government
power. People got that. By the time the committee voted to impeach, in 1974,
the country was on board.” In the nineteen-seventies there was also a core
of moderate Republicans open to considering the evidence against Nixon.
Seven of the seventeen Republicans on the Judiciary Committee voted for at
least one article of impeachment. Not a single Democrat on the committee
voted in favor of Clinton’s impeachment.
Even Republicans who voted for Clinton’s impeachment now regard it as, at
best, a mixed success. Steve Chabot, who represents a district in
Cincinnati, said, “If the Democrats go in that direction, they are likely to
learn a lesson that we learned in 1998. Even if the country starts out with
you, they get sick of the process pretty quickly.” Senator Lindsey Graham,
of South Carolina, who was a member of the Judiciary Committee in 1998, has
an even more negative view. “It blew up in our faces and helped President
Clinton,” he said. “If Democrats keep up what they’re doing, the whole thing
will just be shirts and skins—Democrats versus Republicans—and that’s a
no-win when it comes to impeachment. It has to be bipartisan, or it’s going
to be a failure.”
Indeed, the fervor for impeachment among some on the left is nearly matched
by the passion against it on the right—an ardor that conservatives are more
than happy to exploit, especially leading up to the midterm elections. Trump
has taken up the cause, telling a rally in Michigan, in April, “We have to
keep the House, because if we listen to Maxine Waters she’s going around
saying, ‘We will impeach him.’ ” (Waters, a California congresswoman and a
favorite target of Trump’s, voted in favor of Al Green’s resolutions.)
Republicans in competitive races are also raising the alarm. “There is no
doubt that impeachment will be a critical issue in November for Democrats
and for Republicans,” Ted Cruz, the Republican senator from Texas, who is
facing an unexpectedly serious challenge from Beto O’Rourke, a Democratic
congressman, told me. “There is right now enormous energy on the far left.
They hate the President. They are consumed with Trump derangement syndrome.”
He continued, “For many on the right, and many in the middle, not having the
country consumed by impeachment proceedings and not seeing us lose the
progress the country has made under President Trump is also a powerful
motivator.” Cruz doesn’t believe Pelosi’s statements that she does not
currently support impeachment. “If the Democrats take over the House, on the
day Nancy Pelosi is sworn in to office, that’s the day impeachment
proceedings begin,” he said. “The passion on the left is too great.”
The Democratic leadership continues to insist otherwise. Nadler eventually
defeated Lofgren in a vote by the full Democratic caucus in the House,
118–72. Their differences haven’t proven especially divisive, and they are
by and large in accord on the issue of impeachment. As Lofgren put it, “We
have a sense of history and obligation, though that might not be exciting to
the liberal base.”
***
On a pleasant Tuesday night in May, the liberal base in Des Moines showed up
early at an event space near downtown. An hour before Tom Steyer was to
conduct what he called a town meeting in support of Trump’s impeachment,
more than a hundred people had lined up outside, waiting to be admitted.
“This President has failed his most important responsibility—protecting our
country,” Steyer says in one of his cable-news commercials. “The first
question is Why? What is in his and his family’s business dealings with
Russia that he is so determined to hide that he would betray our country?
And the second question is Why is he still President?” Thanks to the
advertisements, as well as appeals on Facebook, Steyer’s self-funded
operation, called NeedToImpeach.com, has drawn millions of supporters. In
Des Moines, more than four hundred people turned up, filling the room to
overflowing. “I go to political events in Iowa all the time,” Pat Rynard,
who runs a Web site on local politics called Iowa Starting Line, said as he
watched the crowd stream in. “The people here are not the people who usually
go to political events in Iowa. This is more people than the Democratic
candidates for governor draw for their rallies. He’s mobilizing a whole new
group.”
Through sheer force of personality—and about forty million dollars of his
own money—Steyer has become the public face of the movement to impeach
Trump. He has forty full-time staffers, and on his national tour he conducts
town meetings, talks to local news media, and raises his own profile. (By
political standards, the town halls are lavish affairs, with top-notch
production values. The Des Moines event featured what caterers call “heavy”
hors d’œuvres for everyone.) Steyer’s town halls, which last about an hour,
begin with a presentation of one of the latest impeachment commercials,
after which Steyer gives brief remarks—lasting about ten minutes—and then
takes questions from the audience. The curious thing about his event in Des
Moines was that it didn’t have much to do with impeachment. In his opening
comments, he mentioned that he had eight grounds for impeachment, though he
didn’t identify them. (They are spelled out on his Web site, and are
basically an expanded version of the five counts in Representative Cohen’s
resolution.) He also mentioned, but didn’t name, a group of legal scholars
who support his campaign, and he did the same for a group of psychiatrists
who asserted, in a panel discussion he hosted, that Trump is unfit for the
Presidency, as well as a “dangerous, unstable, and deteriorating person.”
Steyer, who is sixty, made his name in politics raising money for John Kerry
and Barack Obama, and then became a climate-change activist. He has now
positioned himself outside traditional political categories. It’s a
strategy, albeit with very different goals, that Trump pursued in his
political career. Bannon, expressing admiration for Steyer’s tactics, told
me, “Steyer is a little bit the Steve Bannon of the left. The Democratic
Party has not yet had its civil war. The populist movement on the left has
not happened yet, but Steyer sees it coming, sees the anger behind it.” In
Steyer’s remarks in Des Moines, he attacked both parties. “The political
establishment does not like what we have to say here,” he told the crowd.
“They say we are normalizing impeachment. We are not normalizing
impeachment. If we ignore what Donald Trump has done, what we’re doing is
normalizing his behavior.” Asked at one point about the last election,
Steyer said, “Two people won the 2016 election: Bernie Sanders, who is not a
Democrat, and Donald Trump, who is not a Republican.” Steyer also funds, to
the tune of thirty-two million dollars, a voter-registration project aimed
at young people, called NextGen America, that is ostensibly nonpartisan.
Steyer is using impeachment much the same way Trump used issues like
immigration: to show that he’s with the Party’s base, not with its elders.
In our conversations, Steyer showed that he had mastered the politician’s
art of ducking the question of whether he’s running for President. “I
believe that we are on a disastrous path,” he replied when I asked. “There
is an absolute void of explaining to Americans what the real stakes are.” A
question from the audience in Des Moines about Steyer’s Presidential
ambitions drew a loud cheer from the attendees and a non-denial denial from
Steyer. The only state where Steyer’s tour has conducted three events is
Iowa, the site of the nation’s first caucuses.
Steyer professes to understand the difference between political opposition
to a President and support for a President’s removal from office. “We are
not impeaching him because we don’t like his tax policy,” Steyer told me.
“He is reckless, dangerous, and lawless.” But people at the town hall didn’t
worry too much about the fine distinctions, and neither, for the most part,
does Steyer. Attendees told me that they wanted Trump removed because he’s
racist, because he’s surrounded by unsavory characters, because he doesn’t
care about the poor. Jennifer Spradling, a retired preschool teacher, had
travelled two hundred and forty miles, from the town of Alton, to hear
Steyer speak. Trump “doesn’t seem to have the moral principles and ideals
that Presidents have,” she said. “He’s done nothing on health care, on
infrastructure.” Several audience members mentioned, as a ground for
impeachment, the Washington Post’s running tally of more than three thousand
falsehoods that Trump has told since the Inauguration. The one phrase I
never heard during the evening in Des Moines was “high crimes and
misdemeanors.”
***
Ultimately, every consideration of impeachment returns to the standard
established in the Constitution. The words are among the most familiar in
the nation’s founding document, even if their meaning has been the subject
of two hundred years of debate. Article II states, “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.” As in the nineteen-seventies and the
nineteen-nineties, the prospect of a Presidential impeachment has spurred
renewed academic interest in the subject, resulting in two recent volumes by
well-known Harvard law professors. Last year, Cass Sunstein, who served in
the Obama Administration, released “Impeachment: A Citizen’s Guide,” and
Laurence Tribe, the noted liberal academic and litigator, has just published
“To End a Presidency: The Power of Impeachment,” written with Joshua Matz.
Michael Gerhardt is also producing a third edition of his treatise “The
Federal Impeachment Process.”
The historical record on impeachment, including at the framing of the
Constitution, is meagre. There were a few references to it at the
Constitutional Convention, and in the debates in the states over
ratification the subject came up in a limited way. The Framers recognized
that the power to impeach was as much a political issue as a legal one. As
Alexander Hamilton put it, in Federalist No. 65, impeachment should apply to
“the misconduct of public men, or, in other words, from the abuse or
violation of some public trust.” Hamilton said that high crimes and
misdemeanors “are of a nature which may with peculiar propriety be
denominated POLITICAL, as they relate chiefly to injuries done immediately
to the society itself.” (This quotation was a favorite of Clinton’s
defenders in 1998 because it suggested that purely personal misconduct, like
lying about an extramarital affair, should not be the basis for
impeachment.) Hamilton also anticipated the partisan divisions that
impeachment would engender, writing that the process “will seldom fail to
agitate the passions of the whole community, and to divide it into parties
more or less friendly or inimical to the accused.”
In modern terms, one pole in the debate over impeachment was defined by
Gerald Ford, during his days as a congressman, when he led a failed attempt
to impeach the Supreme Court Justice William O. Douglas, in 1970, for
purportedly improper financial dealings. “An impeachable offense,” Ford
said, “is whatever a majority of the House of Representatives considers it
to be at a given moment in history.” At the other extreme from Ford’s almost
tautological approach is the claim that only proof beyond a reasonable doubt
that a President committed criminal offenses can justify an impeachment.
To some, the best distillation of the standard is a report produced by the
Judiciary Committee in 1974, on the eve of its debate about the Nixon
impeachment. (One of the committee’s staffers was a young lawyer named
Hillary Rodham.) The report states clearly that impeachable offenses do not
necessarily have to be crimes. Instead, it argues, impeachment should be “a
remedy for usurpation or abuse of power or serious breach of trust,” such as
“offenses against the government, and especially abuses of constitutional
duties.” The emphasis, the authors wrote, “has been on the significant
effects of the conduct—undermining the integrity of office, disregard of
constitutional duties and oath of office, arrogation of power, abuse of the
governmental process, adverse impact on the system of government.”
The challenge is to apply these abstract standards to Trump’s alleged
misconduct. Any attempt to do so requires an accurate determination of
exactly what Trump did, and many are hoping that Mueller will provide that
accounting. As Pelosi told me, “Impeachment doesn’t fit into the equation
until we hear what Robert Mueller says.” But even some impeachment skeptics
are willing to establish markers for Trump’s behavior that would not require
findings from Mueller. The most common of these appears to be the firing of
Mueller or of Rod Rosenstein, the deputy attorney general, who supervises
Mueller’s work. Eric Swalwell, a California Democrat who is a member of the
Judiciary Committee, told me that he opposes impeachment at this point, but
that if the President deposes either man, it would be grounds for starting
proceedings: “That would be encroaching on the independence of the Justice
Department.” Barney Frank, the former congressman from Massachusetts who was
a key figure in the Clinton debate in 1998, said that he can imagine a
scenario in which he would support impeachment. “The President has the power
to issue pardons,” Frank told me. “But if it could be proved that Trump
promised people pardons in order to persuade them not to coöperate with
Mueller, that offer would be an obstruction of justice, and it would be
impeachable.” Laurence Tribe told me that he would regard some forms of
misbehavior as impeachable, such as “a pattern of abusing the bully pulpit
of the Presidency, one of its most potent if informal powers—especially when
amplified by social media—to stir division within the electorate to the
point of violence, to give permission to white supremacists to weaponize
their hatred, and otherwise to undermine the foundations of our republic.”
As it happens, in recent years Congress has embraced broad definitions of
what constitutes impeachable conduct, albeit in low-profile cases. Applying
the standard of high crimes and misdemeanors, the House of Representatives
has impeached two federal judges. President George H. W. Bush appointed
Samuel Kent to the federal bench in Galveston, Texas, in 1990. There, female
court employees complained that Kent groped and harassed them. In 2008, a
federal grand jury indicted the judge for abusive sexual contact, and he was
convicted the following year. The House moved to impeach Kent, and added
charges in addition to those for which he had been convicted, including
lying about sexual harassment he had committed before he became a judge. The
House voted unanimously in favor of three articles of impeachment, and Kent
resigned his judgeship before his trial in the Senate. Michael Gerhardt told
me, “To the extent that there’s a question about whether Trump actually
engaged in sexual assault or has lied about it during the campaign, Kent
arguably provides a precedent supporting a congressional judgment that
sexual assault may constitute a legitimate basis for impeachment.”
The following year, Congress impeached Thomas Porteous, whom Bill Clinton
had appointed to the federal bench in Louisiana, in 1994. Porteous had
declared personal bankruptcy in 2001, and during that process revealed that
he had close ties to a local bail bondsman who was caught up in a federal
corruption investigation. Porteous was never charged with a crime, but the
disclosures about his situation led to an investigation by the federal
judicial administrative office, which determined that Porteous had lied on
the financial-disclosure forms he had filed in connection with his
nomination. The House voted unanimously to impeach him for “engaging in a
pattern of conduct that is incompatible with the trust and confidence placed
in him as a federal judge,” and the Senate removed him from office. As
Gerhardt observes, “The gist of the case against Porteous was that he lied
about his background in order to get the job. The idea was that he defrauded
the Senate, by providing false information, in order to get confirmed for
his judgeship.” Although Congress is under no obligation to apply the same
definition of “high crimes and misdemeanors” in every impeachment, Gerhardt
told me that “the collusion charge against Trump is based on the same idea
of a direct connection—that he engaged in misconduct in order to get the job
he holds.”
Nadler, for his part, declines to set markers for what might trigger an
impeachment investigation if he assumes the House Judiciary Committee
chairmanship in 2019, although he continues to express indignation at each
new disclosure about Trump. He denounced the President’s threats against
Mueller and introduced legislation to protect the investigation by the
special counsel. He criticized the firing of Andrew McCabe. He sought an
investigation of Cambridge Analytica for violating U.S. election
regulations. He called for a formal resolution of censure against Trump for
his remarks about Charlottesville. None of these proposals went anywhere in
the Republican-controlled House.
Instead of planning for impeachment, Nadler is thinking about the kinds of
oversight investigations he might conduct if he is in control of the
committee. “We would want oversight on what the Administration is doing to
civil liberties, to institutions, to discredit the courts, to discredit the
special prosecutor, to attack the press, all of these things,” he told me.
“What are you doing about staffing levels of different places? What are you
doing about the things that affect the ability of agencies to do their jobs
independent of the political direction of the current Administration?”
Still, the chance for Nadler to define his legacy can never be far from his
thoughts. For decades, he and his family have been regulars at a diner a few
blocks from their apartment on the Upper West Side. When he is in New York,
Nadler stops in a few times a week. Each time he does, the owner greets him
with the admonition “You gotta impeach the bastard.”
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