Political Arithmetic and Impeachment

Arithmetic can be pesky. No matter how many times you run the numbers, two-thirds times 100 does not change: it always equals 66 2/3. Thus, under Article I,section 3 of the Constitution it would take 67 Senators to remove President Trump, should the Democrat-controlled House of Representatives impeach him, which requires a simple majority. While the Democrats have the votes in the House to impeach the President, it seems unlikely that a conviction in the Republican-controlled Senate could be achieved. 


Indeed, on May 7, about three weeks after the Mueller Report was released in redacted form to the public on April 18, Senate Majority Leader Mitch McConnell declared the case against the President “closed.” He was joined on May 27 by the chair of the Senate Judiciary Committee, Republican Sen. Lindsey Graham of South Carolina, who poured cold water on impeachment when he was quoted in The Hill as saying: “if [impeachment] is based on the Mueller Report or anything like that, it would be quickly disposed of [in the Senate].” The next day, Republican Sen. Thom Tillis of North Carolina piled on by saying “why on earth would we give a platform to something I judge as a purely political exercise.” Over in the House, the attack dog questioning of Director Mueller by House Republicans during his July 24 testimony before the House Judiciary and Intelligence Committees left no doubt about their political support for Trump. The Republican defense of Trump is fed to a large degree by the popularity the President continues to enjoy with his base and the apparent lackluster support for impeachment among the American people.

Thus, as of late July, 2019, it seems likely that the 2020 election, not impeachment, will determine Trump’s future as the chief executive. So the question facing the House of Representatives is a tough one: should they adopt articles of impeachment knowing that the President would almost certainly be acquitted in the Senate? House Speaker Nancy Pelosi has apparently reached the conclusion that the political price for losing to Trump in the Senate is not worth the effort and would likely bolster Trump’s chances of getting re-elected, even though there is substantial evidence that he has committed impeachable offenses. Other House leaders agree. For example, Chairman Adam Schiff of the House Intelligence Committee asserted after Robert Mueller’s congressional testimony that the 2020 election will decide Trump’s political future, not impeachment. 

Meanwhile, Democrat Jerrold Nadler’s House Judiciary Committee has been conducting what might be termed a “stealth” impeachment investigation, which apparently began upon the receipt of the redacted Mueller Report on April 18. Shortly thereafter, his committee pressed Attorney General William Barr to provide an unredacted copy of the report. On April 22, the committee issued a subpoena to former White House counsel, Don McGahn, the key witness in the obstruction of justice claim. On June 10, the Judiciary Committee heard testimony from former prosecutors about the significance of the president’s actions and evidence that those actions constituted obstruction of justice. 

These and other steps taken by the Judiciary Committee are documented in the July 26 application filed by the committee in federal court for access to the unredacted version of the Mueller Report and certain grand jury materials underlying the report. As one of the grounds for the application, the committee asserts that it is “considering whether to recommend articles of impeachment” against Trump. This fact has not been widely reported to the American people. Chairman Nadler’s forthright statement in the July 26 court filing that his committee is investigating impeachment seems to reflect a difference of opinion between himself and Pelosi. 

There is an understandable ambivalence among the House Democrats regarding impeachment. The majority of the Democratic caucus thus far lines up with Pelosi. On the other hand, about one hundred members of the caucus have called for an impeachment investigation, which we now know is being conducted largely behind the scenes by the House Judiciary Committee. Not surprisingly, there is rabid Republican opposition in both the House and the Senate. With due respect for the difficult political calculations that our congressional politicians must make, what follows is an argument for not giving up on the Constitution just yet. At its core, impeachment is not a political sword. It is a constitutional tool given Congress as a mechanism for checking presidential abuse of power between elections. It is the only such mechanism. Impeachment should not be lightly sacrificed on the altar of partisan politics.

Congress Alone Is Charged by the Constitution with Checking Abuses of Presidential Power.

 Let’s be clear: Congress alone has the power to subject a sitting president to the rule of law. Article I, section 2 of the Constitution says that “[t]he House of Representatives . . . shall have the sole Power of Impeachment.” Article I, section 3 provides that “[t]he Senate shall have the sole Power to try all Impeachments.” This point has been driven home by the restriction placed on Mueller’s investigation by the Department of Justice policy against indicting a sitting president. Much has been made of Mueller’s decision not to make a “binary prosecutorial decision” on the obstruction of justice investigation against the President, which is the subject of Volume II of Mueller’s report. But there is really no mystery here, as revealed by the two Office of Legal Counsel memoranda (one from the Nixon administration in 1973, and the other from the Clinton administration in 2000), on which the DOJ policy is based. Both memoranda reach the same conclusion: it is unconstitutional to indict a sitting president. But they both also hasten to add that this conclusion does not leave a president above the law: 

According to the 1973 OLC Memo 229, “. . . only the Congress by the formal process of impeachment, and not a court by any process, should be accorded the power to interrupt the Presidency or oust an incumbent.”

And according to the 1973 OLC memo 231 “[t]he decision to terminate [a president’s] mandate . . . is more fittingly handled by the Congress than a jury, and such congressional power is founded in the Constitution. . . . In addition, the impeachment process is better suited to the task than a criminal proceeding because appeals from a criminal trial could drag on for months. . . By contrast, the whole country is represented at the [impeachment] trial, and there is no appeal from the verdict, and removal opens the way for placing the political system on a new and more healthy [sic] foundation.”

The Mueller Report cites to the impeachment provisions of the Constitution and the OLC’s discussion of the “. . . relationship between impeachment and criminal prosecution of a sitting President.” There is no doubt about it: The Mueller Report was a hand-off to Congress, which occurred on April 18, when the redacted form was made public. Mueller’s team gathered the evidence. The witnesses’ expected testimony and documents supporting that testimony are described in great detail. The Mueller Report has been described by the Judiciary Committee as an “essential roadmap” for their investigation. Any trial lawyer worth the title could take this report and turn it into a powerful case at trial. 

The Impeachment Standard 

Before considering the Mueller Report’s findings, it is worth reminding ourselves of the impeachment standard stated in Article II, section 4 of the Constitution: “The President . . . shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” No president has ever been impeached for treason or bribery. The articles of impeachment against presidents Andrew Johnson, Richard Nixon and Bill Clinton were based on allegations that they had committed “high crimes and misdemeanors.” That legal term of art was developed under English common law as a check against abuse of power by the ministers of the king. The framers of the Constitution were aware of that standard and, as Alexander Hamilton put it in Federalist 65, they “borrowed” it from English law and applied it to the impeachment of the President. 

A “high crime and misdemeanor” is essentially an abuse of the public trust. It could be, but need not be, a crime. For example, in the case of Nixon, one of the three articles of impeachment was based on obstruction of the Watergate break-in investigation. The obstruction was both a crime and a breach of his constitutional duty to “take care that the laws are faithfully executed.”

The removal of a president between elections is not a referendum by the voters. They make their decisions at the ballot box every four years. Impeachment is a constitutional process that is given solely to Congress for use between elections, when a president has engaged in conduct demonstrating an abuse of the public trust of such magnitude that it would be risky to retain him until the next election, or in the case of a second term president, until his term expires. It is an exquisite balancing act that requires both the House and the Senate to make tough discretionary decisions. How big is the breach of the public trust? What does that breach reveal about the character of the President? What is the risk that he will do it again with potentially disastrous consequences? It also requires an extraordinary effort by the Congress to inform the public as the impeachment process unfolds and to be attuned to, but not completely governed by, their attitudes.

By lodging impeachment in the Congress instead of the courts, the framers were keenly aware that it would be difficult to prevent politics alone from determining the impeachment question. As Alexander Hamilton put it in Federalist 65: 

“The prosecution of them [impeachments] . . . 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 many instances, it will connect itself with pre-existing factions, and will inlist [sic] all their animosities, partialities, influence and interest on one side, or the other; and in such cases there will always be the greatest danger, that the decision will be regulated more by the comparative strength of the parties than by the real demonstrations of innocence or guilt.”

However, the framers also believed that the constitutional standard, not partisan politics, should ultimately determine the impeachment question. Hamilton’s statement about the ogre of partisan politics was a worry about what might happen, not a prescription for what should happen. 

There is Substantial Evidence to Support Impeachment.

The Mueller Report contains substantial evidence that Trump obstructed justice when he attempted to interfere in the Mueller investigation. Based on the evidence adduced by the Mueller investigation, over 900 former federal prosecutors from both political parties have gone on record with the opinion that:

 “. . . the conduct of Trump described in Special Counsel Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.”

In the case of Trump, in addition to the substantial evidence that he committed a crime, there is also substantial evidence that he breached the public trust placed in him by the constitutional charge in Article II that “. . . he shall take care that the Laws be faithfully executed.” The core of Mueller’s investigation was to get to the bottom of a major attack by a foreign power on the integrity of our electoral system: this was an investigation of the highest importance to our country. Mueller’s status as special counsel was protected by the regulations under which he operated:

“The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest or other good cause. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.” (according to 28 C.F.R. 600.7(d).)

 The Mueller Report provides substantial evidence that Trump was motivated to terminate or curtail the special counsel investigation once he learned that he was a subject of that investigation. For example, according to the report, when he learned the news about Mueller’s appointment, contemporaneous notes taken by someone who was with him reflect that the president said, “Oh my God. This is terrible. This is the end of my Presidency. I’m f – – – ed.”

Thereafter, according to the Mueller Report, the President sought to achieve the dismissal of Special Counsel Mueller based on the pretense that Mueller had a conflict of interest, even though his White House counsel and other staffers told him that the conflicts he perceived were “silly” and “not real.” But the President pushed on and, according to White House counsel Don McGahn, Trump ordered him to call Rod Rosenstein and tell him that Mueller had to go. This is evidence that the president directed the senior lawyer in the White House to order the DOJ official supervising the investigation to fire Mueller in violation of the very regulations under which the investigation was being conducted. Then, according to McGahn, in the face of news reports that Trump had ordered him to have Rosenstein fire Mueller, the president pressed McGahn to tell the press that the story was untrue and to document the file with a letter to that effect. In other words, if McGahn is to be believed, the President was trying to cover up his order to fire Mueller.

If the evidence documented in the Mueller Report is true, it paints the picture of a president attempting to use the levers of his office to protect himself. This is similar to Nixon’s attempts to use the CIA to call off the FBI from the investigation of the Watergate burglary based on the pretense that national security would be harmed if the investigation went forward. There is no question that the president’s activities described in the Mueller Report occurred within the realm of his responsibilities as president. They involved obstruction of a federal investigation into interference with a federal election by a foreign power. According to the Mueller Report, the Ppresident used his official authority to instruct a federal employee (McGahn) to order another federal employee (Rosenstein) to fire yet another federal employee (Mueller). 

As revealed by the Mueller Report, the impeachment case is stronger against Trump than those against Johnson and Clinton. The report documents conduct of the same ilk as Nixon’s. Both the Nixon and Trump cases feature documented use of their presidential powers in attempts to obstruct federal law enforcement investigations that they perceived as threatening them personally. Their obstructive conduct was followed by later attempts to cover up what they had done. These are crimes; they are also serious breaches of the public trust. 

The House Should Fulfill Its Constitutional Duty to Investigate Impeachment of Trump.

More than four months after the public release of the Mueller Report, Pelosi has yet forthrightly to embrace the impeachment process. Time is running out. The 2020 election is already in full swing. Strong leadership is absolutely necessary if Congress is going to fulfill its constitutional duty. The absence of that leadership has resulted in dilatory behind-the-scenes action by the Judiciary Committee. For example, Nadler delayed for at least two months in seeking a court order for access to the Mueller grand jury materials and has yet to file an action to enforce the subpoena that was issued to McGahn on April 22. Two House committees waited more than four months to examine Mueller on his report, even though he said in advance that he would stick to what’s in the report, which speaks for itself, and powerfully so. 

Especially at this late date, effective exercise of impeachment will require exceptional leadership by the House Democrats, especially Pelosi and the Judiciary Committee. One of the more serious ramifications of the delay has been that the Republicans have been able to spin the Mueller Report in the president’s favor. The spin began with Barr’s March 24 letter in which he asserted that the Mueller Report cleared the president of obstruction of justice, despite Mueller’s clearly stated decision not to “exonerate” him. Despite the Democrats’ hopes to the contrary, Mueller’s July 24th congressional testimony did not reverse the Republican spin. 

 It is now absolutely essential for the House leadership to communicate with the American people often and powerfully about the contents of the Mueller Report, the role that impeachment plays under our Constitution; and what the constitutional impeachment standard is. Certainly, the Judiciary Committee is aware of the impeachment process that was used in the Richard Nixon case. What should have happened right after the public release of the Mueller Report was for the House leadership to have sponsored a resolution directing the Judiciary Committee to conduct an impeachment investigation. This was the approach taken in the Nixon and Clinton impeachment investigations. 

The Mueller Report, coupled with the opinion letter signed by more than 900 former federal prosecutors provided a substantial, bona fide basis for doing so, similar to what the Senate Watergate Committee gathered and provided to the House Judiciary Committee, which was able to conclude its investigation in six months. Drawing on the Nixon precedent, as well as the Clinton experience, the Judiciary Committee’s impeachment investigation of Trump could have included (and still might include) the following:

Televised hearings conducted by the Judiciary Committee in order to educate themselves and the public on the President’s conduct, the magnitude of the breach of public trust uncovered to date and what those breaches of trust tell us about the risk presented to the interests of the country by allowing the President to complete his term. The hearing should include public testimony by the key witnesses as revealed in the Mueller Report, such as Don McGahn, former Trump campaign manager Corey Lewandowski, former White House adviser Hope Hicks, former White House chief of staff John Kelly and Jeff Sessions’ former chief of staff, Jody Hunt.

Written questions directed to the President on the obstruction claims. 

Written submissions and hearing testimony from appropriately qualified constitutional law professors and historians regarding their assessment of the President’s conduct in light of the constitutional impeachment standard; 

Written submissions and hearing testimony from former federal prosecutors about the elements of the federal crime of obstruction of justice as applied to Trump’s conduct (A hearing along these lines has been held, but was not well publicized); and 

Preparation of a Judiciary Committee staff report on the impeachment investigation like the one prepared in the Nixon impeachment inquiry that includes a detailed analysis of the facts in light of the constitutional “high crimes and misdemeanors” impeachment standard. A House referral of an impeachment investigation to the Judiciary Committee in late April could have captured the public’s attention. Ironically, the approach taken by Chairman Nadler was apparently designed to achieve the opposite effect, namely to keep the impeachment investigation out of the headlines. Starting in April also would have accelerated the resolution of the inevitable court battles between Congress and the President over the testimony of the key witnesses. While there still remains time, the impeachment window is rapidly closing. Indeed, one could easily conclude that Pelosi is intentionally slow walking the process. In her words: “I would rather see him in jail than impeached.” 

Maybe the Political System Has Changed Too Much.

Asking our politicians to eliminate politics from any decision they make is a heavy lift. With respect to impeachment, it might even be an unfair expectation. This is especially true because the founders did not foresee the significant role that political parties would come to play in our government. Nor did they comprehend that our presidents would also become the leaders of their parties and the loyalty to the president that leadership would engender in Congress. As we very well know, it is difficult for a congressional Republican to buck a Republican president. 

But most of the politicians aren’t even trying. They are treating impeachment as if it is supposed to be subordinate to the hurly burly of partisan politics. That clearly couldn’t have been the framers’ intent. If it were, they wouldn’t have included impeachment in the Constitution, leaving the ballot box as the sole mechanism for removing an abusive president. In fact, that approach was considered and rejected by the delegates to the Constitutional Convention.

History shows us how difficult it is to keep politics out of the impeachment equation. The Andrew Johnson and Bill Clinton impeachments and trials were heavily driven by partisan politics. Richard Nixon’s case was different. His resignation was ultimately forced by overwhelming bipartisan support for his impeachment and removal, which were avoided by his resignation. Setting Nixon aside, if the House Democrats are scared off of impeachment by the prejudgment of the case by Republican Senators, this would be the first time that an impeachment was blocked, rather than fueled, by partisan politics. 

If we conclude that our 21st century politicians will always vote the party line on impeachment, then the only time that impeachment would ever gain traction would be the rare instance in which the party opposing a president has at least a majority in the House and a super-majority in the Senate. This would make impeachment a completely political decision, essentially eliminating it as a viable mechanism for subjecting a sitting president to the rule of law. 

­— Scott Barker is a graduate of the U.S Air Force Academy, a Rhodes Scholar, a veteran with service as a military intelligence officer, a cum laude graduate of Harvard Law School, and a Fellow of the American College of Trial Lawyers. He has authored two books on impeachment: Impeachment A Political Sword and The Impeachment Quagmire: Military Intelligence Officer Turned Attorney Unravels Mueller Report.

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