Shortly after being sworn into Congress last month, Rashida Tlaib said: “We’re going to go in there and impeach the motherf*****.” Though her rhetoric was not up to Washington’s best oratorical standards, the young congresswoman from Michigan was only giving vent to what many Democrats believe — that Donald Trump is an enemy of the US republic who belongs in jail. Trump’s supporters, in turn, would yell “lock her up” at the top of their lungs every time he vowed to investigate Hillary Clinton on the campaign trail.
Reaching back further, about a third of Republicans, and a third of Democrats beforehand, wanted to see presidents Barack Obama and George W Bush impeached. Before that Bill Clinton became the first US president in nearly 130 years to be impeached. Though he was acquitted by the US Senate, Clinton’s trial in 1998-99 opened an ugly new era in American politics — the criminalisation of political differences.
Constitutional scholars worry that America’s growing tendency to reach for impeachment as the tool of first resort — as opposed to the last, which is what the founding fathers intended — is a measure of the republic’s degeneration.
Alan Dershowitz, the Harvard constitutional scholar, and author of The Case Against Impeaching Trump, would certainly agree. He jokes that he has lost seven pounds because his liberal friends have stopped inviting him to dinner.
In spite of having opposed Clinton’s impeachment and having fought against the Supreme Court’s ruling in favour of Bush over Gore in the bitter Florida recount in the 2000 presidential election, Dershowitz is now seen as a betrayer for opposing impeachment of Trump. Students demand a “safe space” when he is invited to speak. Old friends cross the street to avoid talking to him. If Trump is a traitor, as most Democrats believe, then anyone who opposes his removal is surely an enabler.
The simple remedy for all sides would be to await the findings of Robert Mueller’s exhaustive — and exhausting — nearly two-year investigation into Trump’s alleged collusion with Russia. Only then should they make a judgment. But patience is a virtue singularly lacking in today’s America. Besides, Trump’s new attorney-general, William Barr, has hinted that he will redact much of the special counsel’s report whenever it does come out. Most people have made up their minds. To impeach or not to impeach? That is the question.
There are two objections to moving ahead. The first is tactical. Democrats could impeach Trump tomorrow if they wished. All it would take is a simple majority of the House of Representatives, which Democrats now control. Yet impeachment — a posh word for indictment — would almost certainly fail to yield a conviction in the Senate, where a two-thirds majority is required. Since Republicans control 53 out of 100 seats, that looks impossible. The Democratic catharsis would be shortlived.
The likelihood is that it would only embolden Trump. “If Congress shoots and misses, the president will be practically untouchable,” write Laurence Tribe and Joshua Matz (also Harvard scholars) in their book, To End a Presidency. “Wounded but not dead, [Trump] could pursue his worst and most tyrannical impulses.” Defeating the “deep state” could become the basis of Trump’s re-election campaign. That is why Nancy Pelosi, the Democratic speaker, is resisting pressure from her younger colleagues to move ahead.
The second objection is substantive. By most conventional yardsticks, Trump is a deeply flawed person. As Tribe and Matz write: “Like no president before him, Trump lies constantly, surrounds himself with liars, and exults in bullshit.” But impeachment is set at a very high bar. The threshold is treason, bribery or “other high crimes and misdemeanours”. It is clear Trump has no regard for how presidents are supposed to behave. But so far he has done nothing to compare with the White House tapes that ultimately did for Richard Nixon. Until they were released, most Republicans stuck loyally by him in spite of his brazen attempts to obstruct the course of justice. Once Nixon’s voice was heard on tape directing multiple crimes, they quickly jumped ship.
There are prima facie grounds for believing Trump has obstructed justice. His firing of James Comey as director of the FBI in 2017 was the most egregious. Other instances include his repeated calls for Mueller to call off the “witch hunt”, tweets hinting thickly at presidential pardons for loyal aides who refuse to co-operate with Mueller, or hellfire to the “rats” who do. Trump talks like a Mafioso and at times seems to act like one. As yet, however, there is no open-and-shut proof that compares with the Nixon tapes. Some, including Elizabeth Holtzman, in The Case for Impeaching Trump, nevertheless argue there are more than enough grounds to press ahead. “If we allow presidents to block, tamper with, and destroy the machinery of justice that is aimed at them, we do so at our peril,” she writes.
Unlike the other authors, Holtzman has direct experience of nailing a rogue president. She was a member of the House judiciary committee in 1975 that voted to move ahead with Nixon’s impeachment. As a 31-year-old recently elected lawmaker, Holtzman was then the youngest woman ever elected to Congress (since overtaken in November by the 29-year-old Alexandria Ocasio-Cortez). She lays out a painstaking case for why Dershowitz, her former teacher, is wrong. The latter believes a president can only be impeached if caught red-handed committing crimes in office.
That is far too restrictive, believes Holtzman. In the first instance, Congress is a political body, not a judicial court. Its judgment is qualitative, not technical. Lawmakers have the power to define high crimes and misdemeanours as they see fit. Posing a threat to American democracy is not a specific crime, but it is a compelling reason to remove a president. In Holtzman’s view, Russia’s electoral interference in 2016 was the cyber-equivalent of Pearl Harbor. Simply by encouraging the Russians to interfere, and then disrupting investigations into Russian interference, Trump poses a “clear and present danger to our democracy”, she says.
Notorious: presidents that have faced the music
Andrew Johnson, 1868
The 17th US president served from 1865 to 1869 following the assassination of Abraham Lincoln. The Democrat was accused of violating the Tenure of Office Act. He was impeached in 1868, days after removing Edwin Stanton, the secretary of war, from his post. The Senate failed to convict Johnson
Richard Nixon, 1974
The 37th US president served from 1969 to 1974. The Republican resigned before almost certain impeachment when the Watergate scandal escalated. The only president to step down, he was controversially pardoned by his successor Gerald Ford, pictured left
Bill Clinton, 1998
The 42nd US president served from 1993 to 2001. The Democrat was impeached by the House of Representatives in 1998 over perjury and obstruction of justice for allegedly misleading a grand jury over his affair with Monica Lewinsky. The Senate acquitted Clinton on both charges
But Holtzman is on firm ground in saying that it is far too limiting to confine impeachment to criminal acts. It is easy to think of examples of presidents breaking laws that should not merit impeachment. Instances include Warren Harding drinking whiskey in the White House during Prohibition, or Franklin Roosevelt circumventing US law to assist the British in the early stages of the second world war. It is also easy to imagine cases where a president should be impeached without having done anything criminal. If Trump announced the US would recognise the Southern Baptists as America’s official religion, for example, that would amount to an assault on the constitution’s provision against an established church.
Yet, the list of impeachable offences Holtzman cites is lengthy. Some, such as election finance violations, are worryingly nebulous. The danger is that impeachment will become a routine tool of opposition, much like votes of no confidence in a parliamentary democracy. As Dershowitz points out, America’s election finance laws “are so vague and open-ended that half of America’s politicians would be in jail if they were broadly applied.”
Holtzman is clearly a fan of impeachment. Her last book was called The Case for Impeaching George W Bush. By contrast, Dershowitz is reluctant to consider anything Trump has done, or might do, as impeachable. Perhaps, as Trump once said of his supporters, Dershowitz would forgive him for shooting someone on Fifth Avenue.
Of the three books, Tribe’s and Matz’s is the most judicious. They suggest the way to decide whether impeachment is merited is to ask: “Will we survive this presidency, and, if we do, what kind of nation will we have become?” They do not offer a definitive answer. But they are closer to Holtzman’s philosophy than Dershowitz’s.
The founding fathers knew that “democracy can fall to charismatic demagogues, would-be monarchs, self-interested kleptocrats, sophisticated criminals and high-functioning morons,” they write. Each of these epithets could apply to Trump. Yet, the first preference for Tribe and Matz would be for voters to fix the problem, rather than Congress.
Many see impeachment as a sort of magic wand to wish away the Trump nightmare. Others fantasise about the 25th amendment, which allows a president to be removed if he is incapacitated. Half of America has turned to amateur psychology to diagnose Trump as insane. But this is just a form of “medicalised impeachment” in their view. The amendment was passed in the wake of John F. Kennedy’s assassination to clear up ambiguities about the succession. It would be even tougher to pull off than an actual impeachment. His removal would begin with a simple determination by the vice-president and a majority of the cabinet. If the president objected then two-thirds of each chamber would need to approve it. In practice, the amendment was meant to cover a president in a coma — as JFK was for several hours before he died — rather than one suffering from severe narcissistic personality disorder, as Trump’s detractors claim.
Which leaves us with good old-fashioned impeachment. Alexis de Tocqueville, the great chronicler of the young US republic, described it as the “most formidable weapon that has ever been placed in the hands of a majority”. Before then, the only remedy available was assassination. Impeachment gave Americans the means to administer political death in instances where, as Benjamin Franklin said “the chief magistrate rendered himself obnoxious”. On paper it sounds straightforward. In practice, the only successful instance, other than Nixon, of Americans removing a leader was George III. Indeed, many scholars see the Declaration of Independence as America’s first successful article of impeachment.
Will Trump join that select rogues’ gallery? The chances are reasonable. But suppose that he were removed in highly polarised circumstances. Would that leave the republic in better health? The resulting bitterness could lay the ground for someone more dangerous than Trump to follow in his wake.
The task of salvaging, and renewing American democracy, ultimately lies in the hands of its people. Barring a dramatic revelation along the lines of the Nixon tapes, it is surely better they render their verdict at the ballot box.
The Case for Impeaching Trump, by Elizabeth Holtzman, Hot Books, RRP$21.99, 160 pages
The Case Against Impeaching Trump, by Alan Dershowitz, Hot Books, RRP$21.99, 150 pages
To End a Presidency: The Power of Impeachment, by Laurence Tribe and Joshua Matz, Basic Books, RRP$25.98, 304 pages
Edward Luce is the FT’s national editor
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