Under the process set out in the Constitution, charges of impeachment are brought in the House of Representatives, and the decision to convict or acquit resides with the Senate. This was intended to prevent the process from being politicized, primarily because in 1787 senators were chosen by state legislatures and not by popular vote. This seems ironic, if not quaint, in today’s hyperpartisan atmosphere. However, the constitutional requirements of a simple majority of the House to bring impeachment charges (Article I, Section 2, Clause 5) and a two-thirds majority of the Senate to convict (Article I, Section 3, Clause 6) are thought to counterbalance any political motivation.
In practice, however, there was unquestionably a partisan aspect to the presidential impeachment proceedings that have occurred to date. Rep. Gerald R. Ford stated in 1970 that an impeachable offense “is whatever a majority of the House of Representatives considers [it] to be in a given moment in history.” In retrospect, what Ford, a thoughtful and moderate man, must have meant was not that it was acceptable for the House to pass a resolution of impeachment for frivolous or entirely partisan reasons (say, purely motivated as a method to overturn the presidential election results). Surely he intended that the House and the Senate were expected by the framers to decide what offenses are “impeachable” and justify the president’s removal, despite the election results, based on contemporary standards and values. So Ford seems to have recognized that the framers intended the definition of an impeachable offense ultimately to be “political”—not in the partisan sense but rather the political judgment of what presidential conduct constituted “injuries done immediately to the society itself” and to the Constitution.
An analysis of the presidential impeachment proceedings to date is instructive in what conduct has led to articles of impeachment and may shed light on the possible actions by the current House of Representatives.
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Three presidents have been subject to these proceedings:
• Democratic president Andrew Johnson in 1868, who succeeded Abraham Lincoln after the latter’s assassination, was impeached by the House on a partisan vote but survived conviction and removal from office in the Senate by just one vote.
• Republican president Richard Nixon’s impeachment was approved by the House Judiciary Committee on July 30, 1974, with bipartisan support. He resigned on August 8, before there was a vote by the full House or a trial by the Senate, after a delegation of Senate Republicans visited him the day before to urge him to resign.2
• Democratic president Bill Clinton was impeached by the House Republicans in a virtually entirely partisan vote. But the House initiative was rejected in the Senate. The House could not obtain a majority of the 55 Republican senators to support any of the two counts they presented for voting, much less the 67 votes required for conviction and removal.
On March 2, 1868, the House of Representatives, controlled by the Radical Republicans, passed articles of impeachment against President Andrew Johnson. This faction of the Republican Party was called Radical because its members represented the most extreme, punitive wing of the anti-Confederacy members of Congress, contrary to President Lincoln’s call for the opposite approach to Reconstruction in his Second Inaugural (“with malice toward none, with charity for all”).
The Radical Republicans approved eleven articles of impeachment against Johnson, a Democrat, by a vote of 126 to 47. The articles related specifically to his firing of Secretary of War Edwin Stanton in violation of the Tenure of Office Act. But the underlying conduct reflected his failure to support congressional Reconstruction efforts after the Civil War. One of the articles charged Johnson with bringing the office of the president into “contempt, ridicule, and disgrace, to the great scandal of all good citizens.”3 Only three of the eleven articles were voted on by the Senate after a trial. When none of those received the required two-thirds majority, the Senate adjourned rather than vote on the remaining eight articles.
The Senate failed to achieve the necessary two-thirds vote by only one vote—if one senator had switched from opposed to in favor, Johnson would be the only president ever to have been removed from office. Historians have found the Johnson impeachment to have been illegitimate, as it was almost entirely partisan—the opposite of what Madison, Hamilton, and the framers intended. For this reason, its illegitimacy has been described as similar to the partisan vote on President Clinton in 1999, further discussed below.4
One aspect of Article X among the eleven Johnson impeachment articles might be pertinent to any investigation of Donald Trump. Although most of this article can be ignored because of its patently absurd contention that it is an impeachable offense to make speeches that are disrespectful to Congress, the words of Republican congressman Benjamin Butler characterizing the content and style of these speeches might be worth noting. Butler described Johnson’s speeches as “intemperate, inflammatory and scandalous harangues”—implying they were nonpresidential and brought the presidency into disrepute. Article X also referred to conduct and statements by President Johnson that were “unmindful of the high duties of his office and the dignity and proprieties thereof.” In addition, it referred to statements made that were “highly censurable in any, [and] are peculiarly indecent and unbecoming in the Chief Magistrate of the United States.” By his use of such intemperate and unpresidential language, Johnson was said to have brought the office of the president “into contempt, ridicule and disgrace.” Some might fairly point to words and phrases used by Donald Trump as similarly unpresidential, “indecent, and unbecoming.”
President Richard Nixon’s articles of impeachment in 1974 included obstruction of justice, violating the constitutional rights of citizens, and failing to produce materials under subpoena. He resigned before the full House could vote on the articles. Article I—obstruction of justice—approved by the House Judiciary Committee, accused Nixon of “making false or misleading public statements for the purpose of deceiving the people of the United States” and “[acting] in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury to the people of the United States.”5 Six Republicans crossed party lines to vote for the first article, and seven voted for Article II, and two Democrats crossed party lines to vote against the third article. One Republican, Rep. Larry Hogan of Maryland, a strong and outspoken conservative, voted against Nixon on all three articles.
In 1998, the House approved two articles of impeachment against President Bill Clinton—those relating to perjury before the grand jury (Article I) and obstruction of justice (Article II). The impeachment process regarding Clinton has been compared by many historians to the partisan and illegitimate impeachment process of Andrew Johnson, and in many respects, seen by historians as worse.6
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Before the impeachment process began, in the November 1998 congressional elections, with the campaigns dominated by the issue of whether or not Clinton should be impeached, the Democrats actually picked up five seats over the Republicans, a result described as “stunning” by many political observers. As a result, Newt Gingrich, the rabid anti-Clinton partisan speaker favoring impeachment, resigned as speaker and announced he would leave the House by the end of the year. Moreover, the House Republican leadership pushed forward on impeachment votes on December 19, using a lame duck Congress to do so, meaning those Republicans who had been defeated in the November elections were allowed to vote. Moreover, the Republican House leadership would not even allow a roll call vote on an alternative to impeachment—a strong censure of President Clinton regarding his personal conduct. This refusal to allow a vote on an alternative to an inevitable cratering and humiliation of its impeachment resolutions was inexplicable and shameful.
Only five Democrats in the entire House supported either of the two impeachment counts, whereas 228 and 223 Republicans supported the first and second, respectively.7
Further supporting the partisan natu
re of the proceedings is the fact that the House Republicans could not obtain even a majority of 51 of the 55 Republicans in the Senate for either of their impeachment counts. Indeed, on Article I (lying to the grand jury), the House Republicans lost 55 to 45 (meaning 10 of the 55 Republican senators voted “not guilty”). On Article II, the Senate split 50–50, meaning 5 Republicans opposed the House Republicans. In contrast to Andrew Johnson, the House Republicans trying to impeach Bill Clinton fell far short of the necessary two-thirds in the Senate on February 12, 1999, by 17 and 22 votes, respectively, on the two counts.
So, what has history taught us about impeachment as a remedy to remove a president of the United States—literally, to overturn the results of the election of a president? It must meet a burden of proof so high that it can be justified only in the most extreme circumstances and it must have some signs of bipartisanship.
Susan Low Bloch of the Georgetown University Law Center has criticized the “nonchalance displayed by members of Congress, especially the House of Representatives, during the Clinton impeachment” as “wrong then and remains wrong today.” She quoted the renowned Yale Law School professor Charles Black in his book on impeachment: “The election of the president (with his alternate, the vice-president) is the only political act that we perform together as a nation. . . . No matter, then, can be of higher political importance than our considering whether, in any given instance, this act of choice is to be undone, and the chosen president dismissed from office in disgrace. Everyone must shrink from this most drastic of measures. . . . [Removal is] high-risk major surgery, to be resorted to only when the rightness of diagnosis and treatment is sure.”8 In short, impeachment is a drastic measure to be contemplated only as a last resort.
Therefore, there must be a heavy presumption against even attempting an impeachment process against President Donald Trump, a sitting president. The standards for considering impeachment must be high, and the quantity and quality of factual support of any article should be even higher. The president is elected by the people, and President Trump may stand for reelection in 2020. That is the better way to remove him, if he deserves to be removed, than through the impeachment process.
However, any concern about overturning a legitimately elected president should not be applicable to Donald Trump’s 2016 election. It cannot be deemed, at least using traditional definitions, as “legitimate,” because of the abnormal—“alien” is not too strong a word—intervention into the electoral process by James Comey.
Another factor undermining Trump’s legitimacy as president, which cannot be quantified but indisputably damaged Hillary Clinton’s candidacy, is the proven intervention of the Russian government to help Trump and to harm Clinton. There is no doubt whatsoever that this happened. It is confirmed by the highest levels of the Intelligence Community, based on hard human, documentary, and other top secret intelligence sources and methods. No one disagrees with this conclusion—no one in either Intelligence Committee of either party in either chamber of Congress. It is a fact.
The president-elect was informed of this fact by Friday, January 6, 2017, with “high confidence” based on raw, highly classified intelligence, by James R. Clapper Jr., the director of national intelligence; John O. Brennan, the director of the CIA; Adm. Michael S. Rogers, the director of the National Security Agency; and James B. Comey, the director of the FBI.9
Yet one person in the government has refused to accept this finding—indeed, has mocked and ridiculed his own Intelligence Community in the presence of senior officials of the Russian government, including one of its top spies, during a meeting in the Oval Office: Donald Trump. (The fact that Trump has willfully lied about and denied Russian intervention on his behalf will be further discussed below in the proposed second article of impeachment that merits investigation.)
Given that the standards for impeachment must be high, and the known facts must be sufficiently numerous and undisputed to justify even beginning an investigation, I have selected only five grounds for possible impeachment among the many possible. These are the ones with the most indisputable evidence. The overarching standard of abuse of presidential power is the common thread:
1. Obstruction of justice and cover-up, thereby threatening the rule of law and our system of justice
2. Abuse of the public trust by knowingly and willfully perpetuating lies that harm the national interest and faith in government and undermine the nation’s security from foreign, hostile powers
3. Attacks on the First Amendment protections of a free press
4. Words and actions suggesting betrayal of trust to a hostile foreign power
5. Conflicts of interest constituting self-enrichment involving possible violations of the Constitution’s two separate provisions prohibiting domestic and foreign emoluments
Obstruction of Justice and Cover-Up
Whether President Trump’s firing Comey as director of the FBI, asking for his personal loyalty, or asking him to back off on the investigation of his former national security adviser are criminal obstructions of justice is not relevant. The only relevant issue is whether these actions constituted impeachable offenses as understood from prior interpretations of that term as well as contemporary judgment of abuse of power and trust by the U.S. Congress. If the facts show that Trump abused his power as president to thwart the fair and effective operation of the criminal justice system of our government to protect himself and/or his colleagues, that would be an impeachable offense.*
This is how the House Judiciary Committee defined impeachable “obstruction of justice” actions of Richard Nixon in their Article I that they voted to approve on July 27, 1974:
On June 17, 1972, and prior thereto, agents of the Committee for the Re-election of the President committed unlawful entry of the headquarters of the Democratic National Committee in Washington, District of Columbia, for the purpose of securing political intelligence. Subsequent thereto, Richard M. Nixon, using the powers of his high office, engaged personally and through his close subordinates and agents, in a course of conduct or plan designed to delay, impede, and obstruct the investigation of such illegal entry; to cover up, conceal and protect those responsible; and to conceal the existence and scope of other unlawful covert activities.
On June 8, 2017, Comey, who had been fired the month before by President Trump without notice while he was on the West Coast giving a talk to FBI employees, testified before the Senate Select Committee on Intelligence:
The President began [the January 27 dinner at the White House] by asking me whether I wanted to stay on as FBI Director, which I found strange because he had already told me twice in earlier conversations that he hoped I would stay, and I had assured him that I intended to. He said that lots of people wanted my job and, given the abuse I had taken during the previous year, he would understand if I wanted to walk away.
My instincts told me that the one-on-one setting, and the pretense that this was our first discussion about my position, meant the dinner was, at least in part, an effort to have me ask for my job and create some sort of patronage relationship. That concerned me greatly, given the FBI’s traditionally independent status in the executive branch.
I replied that I loved my work and intended to stay and serve out my tenure term as Director. And then, because the setup made me uneasy, I added that I was not “reliable” in the way politicians use that word, but he could always count on me to tell him the truth. I added that I was not on anybody’s side politically and could not be counted on in the traditional political sense, a stance I said was in his best interest as the President.
A few moments later, the President said, “I need loyalty, I expect loyalty.” I didn’t move, speak, or change my facial expression in any way during the awkward silence that followed. We simply looked at each other in silence. . . .
Near the end of our dinner, the President returned to the subject of my job, saying he was very glad I wanted to stay, adding that he had heard great things about me from Jim
Mattis, Jeff Sessions, and many others. He then said, “I need loyalty.” I replied, “You will always get honesty from me.” He paused and then said, “That’s what I want, honest loyalty.” I paused, and then said, “You will get that from me.” As I wrote in the memo I created immediately after the dinner, it is possible we understood the phrase “honest loyalty” differently, but I decided it wouldn’t be productive to push it further. The term—honest loyalty—had helped end a very awkward conversation and my explanations had made clear what he should expect.†
Here is an analysis of Comey’s testimony by Philip Allen Lacovara, a former U.S. deputy solicitor general in the Justice Department and counsel to Watergate special prosecutors Archibald Cox and Leon Jaworski. Lacovara concluded that Comey’s testimony, if true, sets out a criminal case of obstruction of justice, regardless of whether or not the president can be indicted. (Most scholars do not believe he can be until he leaves office.) Lacovara laid out evidence “sufficient for a case of obstruction of justice.”10
Lacovara wrote, “The president had specifically attempted to shut off at least a major piece of what Trump calls the ‘Russia thing,’ the investigation into the misleading statements by fired national security adviser Michael Flynn concerning his role in dealings with the Russians. This kind of presidential intervention in a pending criminal investigation has not been seen, to my knowledge, since the days of Richard Nixon and Watergate.”
Lacovara went on to say, “Comey’s statement meticulously detailed a series of interventions by Trump soliciting his assistance in getting the criminal probe dropped. These details are red meat for a prosecutor.” Comey was “sufficiently alarmed” that he chose to write what he recalled of the conversation in various contemporaneous memoranda, including immediately typing one memo on his laptop in his car.
The Unmaking of the President 2016 Page 15