IMPEACHMENT: IT’S THE REAL DEAL NOW

Impeaching President Donald J. Trump now seems inevitable.  On a party-line vote, the House of Representatives last week endorsed a resolution opening a formal impeachment inquiry. The vote never would have

been taken if House Speaker Nancy Pelosi wasn't confident she has the votes for impeachment. Soon public hearings will begin, followed by approval of at least one article of impeachment in the judiciary committee. If the full House supports

at least one article, action would shift to the Senate for a trial. There, conviction and removal from office require a two-thirds vote, admittedly an unlikely prospect now.   

Mounting evidence Trump abused his office by withholding aid from a beleaguered ally while demanding help from that foreign government in digging up dirt on a political opponent has persuaded about half the country Congress should remove him. Though

Trump’s sins as described in the report of Special Counsel Robert S. Mueller didn’t produce widespread support for impeachment, shake-down of a foreign leader for personal domestic political advantage appears to have broken through.

The story isn’t complicated. A White House  summary of a call between Trump and the Ukrainian president

told most people all they needed to know. When House investigators began taking testimony from people involved in U.S. – Ukrainian relations the doubts about Trump’s constitutionally prohibited behavior fell away.  A host of credible witnesses, like Ukraine Ambassador William Taylor and a decorated National Security Council official, Lt. Col. Alexander Vindman, have given the Ukraine scandal gravitas and staying power with the public. House leaders, like intelligence committee chairman Adam Schiff, indicate Taylor, Lt. Col. Vindman, and perhaps even former National Security Advisor John Bolton may testify in the public hearing phase. History suggests increasing public support for impeachment would likely result from public hearings.

Our Say

We return to impeachment now because it’s real. In four previous posts we looked at it under abstract circumstances. This isn’t hypothetical anymore. This will happen.

We began writing about impeaching Trump in March 2017, just two months into his presidency. Early signs of corruption  produced Woodson’s prediction that impeachment proceedings against the President would begin “in the next year.”  It took a little longer, but even then the road pointed in the direction we’re now headed.

                   

Three months later, in June 2017, Trump’s firing of FBI Director James Comey induced from us a piece on the history of the Andrew Johnson, Richard Nixon, and Bill Clinton impeachment proceedings. We speculated about what might happen politically if Trump were impeached and removed. As things move forward in 2019, we realize we’ll have to revisit the political calculus.  It’s different now that we’re on the cusp of an election, but no less important in developing an understanding of what all this means for American politics.

In July 2018, we briefly revisited impeachment in the wake of Trump’s shameful performance in Helsinki alongside Russian strongman Vladimir Putin. With former State Secretary Madeleine Albright’s

book Fascism as a backdrop and organizing principle, we asked if impeachment “could reign in Trump’s behavior,” even if the Senate didn’t remove him from office.

Finally, in April 2019, evidence of Trump’s scandalous behavior became clearer and clearer. We learned of so many sins, we asked, “Impeachment Anyone?” We addressed the issue in terms of political reality versus the country’s need for a moral response, in the process revealing our own varied views on the issue.

Ukraine Changes the Game

Throughout the now nearly three years of the Trump presidency, as the specter of impeachment lurked beneath the surface and the bad acts piled up, there has always been the idea of relying on the 2020 election as the best way of ridding the nation of Trump disease. Wait, counseled people like Rob, who for most of that time, thought the political price of impeaching Trump wasn’t worth it. We could tough it out until the election in the belief limiting Trump to one term wouldn’t permanently damage the country. Trump’s behavior in connection with Ukraine calls the morality of that view into serious question.

Woodson and Henry now offer compelling

observations about why leaving it to the election isn’t a good idea. Woodson notes the possibility of tampering with the 2020 election. Mueller told Congress he was sure the Russians were, as he spoke, readying their next attack. Trump, by saying he’d welcome dirt on his opponent from foreign sources, invited just such interference. It happened in 2016. It could happen again.   

Henry, a former federal magistrate judge who says perhaps the best part of his job was swearing in new citizens, reminds us morality commands we not betray the brave citizens like Ambassador Taylor, Lt. Col. Vindman, and the original

whistleblower who stepped forward and told what they knew, sometimes at great personal cost. Trump and his allies vilified these men and women for doing nothing more than honoring their duty under the constitution.

 

All three of us learned in law school the venerable principle that the law is entitled to every person’s evidence. People like

Ambassador Taylor and Lt. Col. Vindman followed that principle with their closed-door testimony and probably will again when the hearings go public. In the absence of impeaching Trump, we will have done those individuals and the principle they followed a great disservice. We cannot afford the price of doing that.   

THE MUELLER REPORT: IMPEACHMENT ANYONE?

We long-awaited Special Counsel Robert Mueller’s report on Russian interference in the 2016 Presidential election. It came out April 18, complete with annoying redactions and spin by Bill Barr, President Trump’s legal flack-in-chief masquerading as Attorney General of the United States.

Trump/Barr

Release of the report, and its damning contents put the ball squarely in the court of Congressional Democrats who must decide about starting impeachment proceedings. Despite Barr’s spin, the report showed the American President suggested witnesses lie, encouraged theft of his opponent’s correspondence, and tried impeding a federal investigation, among countless other bad acts. 

Image of Redacted Mueller Report released April 18, 2019

We’ve been talking about impeachment for several years. With much of Mueller’s report out, the nation arrived at the time for deciding on proceeding with impeachment or not. The report paints a picture Congress can’t ignore.  

Impeachment starts in the House of Representatives with

Judiciary Committee hearings. Should it approve articles of impeachment, a full House vote follows. Onlyafter a majority House vote favoring impeachment would the Senate hold a trial on removing Trump from office. 

Woodson: Act Now!

This isn’t a hard call for me. Trump has so compromised our democracy, endangered national security, and imperiled the rule of law, Congress must move on impeachment. If the things Trump did (or asked that others do on his behalf) don’t represent “high crimes and misdemeanors” what does?

Being President imposes a higher standard than not being

criminally indicted. Trump claimed exoneration because Mueller didn’t find sufficient evidence for a criminal prosecution based on conspiracy with the Russians or obstruction of justice. A President, however, swears he or she will take care that the laws are faithfully executed. Just avoiding being charged with a crime doesn’t meet that test.

Some, like House Majority Leader Steny Hoyer (D-Md.), think impeachment still isn’t in order because the people will pass judgment on Trump at the ballot box in 18 months. Others say pursuing impeachment will backfire on Democrats. I believe not pursuing impeachment will backfire on Democrats. Many voters may conclude that if Congress won’t do its job and protect our institutions, what’s the point? Perhaps we’ll just stay home in 2020.

Republican George Conway shares my view. The husband of Trump advisor Kellyanne Conway writes in the Washington Post, “the Mueller Report disturbingly shows, with crystal clarity … there is a cancer in the presidency: Donald J. Trump.

“Congress now bears the solemn constitutional duty to excise that cancer without delay … Charged with faithfully executing the laws, the President is, in effect the nation’s highest law enforcement officer [yet]  the Mueller investigation found multiple acts by the President that were capable of exerting undue influence over law enforcement investigations.”    

    

Rob: Fence Sitter

Woodson makes a persuasive case for moving forward with impeachment. Trump’s vile acts would earn any other citizen a place under the jail. The President’s behavior offends me and I agree being President requires more than being un-indictable. Congressional responsibility for protecting the nation goes beyond political considerations. I get that.

Yet, I am torn. This nation needs most an end to the Trump Presidency. Two concerns drive my thinking that impeachment may not constitute the best way of getting rid of Trump. First, unless the report’s release changes the narrative, it’s clear this issue doesn’t motivate voters. Few people ask about Trump’s sins at town hall meetings and rallies in early primary and caucus states like New Hampshire and Iowa. Voters care about the economy, health care, and climate change. Putting a focus on impeachment doesn’t drive voting, at least not now. 

My second fear lies in the possible result of trying

Barr at pre-release conference

impeachment and failing. Barr’s pre-release news conference showed how Trump’s allies will cast anything that even sounds exculpatory. Because Mueller didn’t charge Trump with a crime, Barr exonerated him. Think of what Barr, and others, will do with an acquittal in the Senate, where removal from office requires that 20 Republicans join all the Democrats in voting for conviction. Impeachment may get rid of Trump and I understand the moral and constitutional duty Congress arguably has. But something tells me we should let voters decide this, so I ride the fence.

Henry: Tell Us More

It’s clear Americans have not yet been educated about the

depth of Trump’s deplorable conduct. Unlike Watergate,when a long string of events (like the Saturday Night Massacre) and public hearings prepared the country for the impeachment process, the Mueller Report gave us our first detailed account of the Trump horrors, like the ten ways he potentially obstructed justice. We didn’t know how blatant some of his lies—and those of his staff – were, like news secretary Sarah Sanders admitting her statements claiming FBI employees called the White House complaining about fired director James Comey “were not based on anything” (in other words, she made it up).

Before moving forward with impeachment, the Democratic House should continue the oversight process already underway in committees. Those committees should hear

from Mueller. They should keep pursuing a fully un-redacted version of the report. Impeachment lies over the horizon, but Congress must tread carefully and deliberately. I know this approach risks encroaching on the 2020 election, but I still see it as the most prudent course. 

In many ways, I agree with Woodson and Rob. Woodson correctly concludes Congress must fulfill its responsibility for upholding the rule of law. In this instance, meeting that responsibility may mean taking on impeachment, even with the political risks Rob identifies and fears. The deliberate process I’ve suggested can mitigate some of that risk. Once people understand how badly the President behaved, I see a good chance Americans will find themselves ready for impeachment and may view it as a necessity.                                      

The Politics of Impeaching Donald Trump: How It Might Happen

As they say in radio, “The Hits Just Keep On Coming.”  That’s been American politics since May 15, when President Trump fired FBI Director James Comey.  Space doesn’t permit listing all the blockbuster stories absorbed in news cycles since then. Increasingly, the media and the public speculate whether the end game to all this is the “I” word – potential impeachment of the 45^th President of the United States.

One of us, Woodson, already is on record in suggesting Congress will impeach Trump this year.  The other two of us, as much as we’d like to see that, argue it won’t happen, if at all, until after the 2018 elections when Democrats could recapture the House of Representatives and control of the impeachment process. We realize impeachment implicates legal and political concerns and we ignore either at our peril. Now, we focus on politics. 

Some History   Three American presidents -- Andrew Johnson, Richard Nixon, and Bill Clinton – have faced impeachment proceedings.  No U.S. President has been removed from office by conviction following impeachment, though Nixon resigned in anticipation of certain impeachment and conviction. 

“High Crimes and Misdemeanors” represents the constitutional standard for impeaching a president.  Historically, a debate has raged among the political class and legal scholars over whether the term means an indictable criminal offense or merely political or practical misconduct.  The record in the three cases shows a combination of the two.  In reality, “High Crimes and Misdemeanors” means whatever Congress says it means.

The House impeached Johnson in 1868 over his violation of a likely unconstitutional statue -- the Tenure of Office Act.  Johnson tried to replace Secretary of War Edwin Stanton with General Lorenzo Thomas.  Congress passed that law to protect Stanton and when Johnson wouldn’t follow it, the House approved 11 articles of impeachment. Three conviction votes in the Senate each fell one vote short of the required two-thirds majority.  The Johnson impeachment, therefore, was blatantly political and Congressional Republicans, angry with Johnson over dealing with the defeated Confederacy after the Civil War, didn’t worry about finding a criminal charge against him.

The House Judiciary Committee adopted three articles of impeachment against Nixon in 1974, two of them essentially political – abuse of power and contempt of Congress.  But, the June 23, 1972, “smoking gun” tape in which Nixon and his chief of staff, H.R. Haldeman, plotted how to use the CIA as a cover for stopping the FBI investigation into the Watergate break-in, would have resulted in a conviction on the third article, obstruction of justice, had Nixon not resigned.

The impeachment articles against Clinton that passed the House in 1998 involved criminal charges -- perjury and obstruction of justice related to lying about his affair with Monica Lewinsky.  Because the charges against Clinton concerned sex, the Senate was never going to convict.

It’s Politics   So, the impeachment record shows it’s as much about politics as about criminal wrongdoing.  Impeaching Trump would constitute a political act as much as a legal one, with wide ranging consequences, making considering the politics of impeachment necessary.  Republicans control both chambers, so Congress wouldn’t likely impeach Trump until GOP members believe it in their political interest to do so or think they can’t afford to resist.  Assembling evidence against Trump and his associates remains important, but we must at least partly view that evidence through a political lens.

 For Republicans to desert Trump, must Special Prosecutor Robert Mueller develop an airtight criminal case against him?  Nixon’s political support didn’t collapse until his criminal culpability became clear. Since Trump’s sins, and those of his colleagues, involve national security and foreign policy matters, what will it take for enough of the public to support impeachment that Republicans get on board or get out of the way? The public saw the Johnson and Clinton impeachments as mostly political.  Americans didn’t think Congress should impeach Johnson over a personnel matter and they didn’t want to run Clinton out of office over sex. Nixon’s overt criminality, however, sufficed and he resigned in the face of the inevitable. What will the public require for getting rid of Trump?

Afterwards   Then there’s the fallout from impeachment.  What happens if enough shoes drop this summer that Congress does impeach Trump, making Mike Pence President by early 2018?  We see two possible scenarios.  Republicans could, of course, suffer a similar fate as in the aftermath of Watergate and Nixon’s resignation.  Democrats cleaned up in the 1974 mid-terms, picking up 49 seats in the House and four in the Senate. Jimmy Carter arguably won the White House in 1976 because of Watergate and Gerald Ford’s pardon of Nixon.

But, for those who oppose the Republican agenda, there’s also a nightmare scenario.  Suppose Pence puts the GOP back on track by doing things like picking a woman, say former South Carolina Governor and current UN Ambassador Nikki Haley or Iowa Senator and hog farmer Joni Ernst, as the new Vice President?  Suppose Pence cajoles his majorities into passing a big tax cut, makes Democrats a deal on infrastructure spending they can’t refuse, and cobbles together a health care deal that mollifies the firebrands in the House and blunts moderate Senate opposition to repeal of the Affordable Care Act?  Such a political resurrection might hold Republican losses in the House in 2018 to the norm for the party holding the White House and make Pence a formidable incumbent in 2020.

When thinking about impeachment, a chilling phrase for this scenario comes to mind: Be careful what you wish for.                      

       

        

Unimaginably Immoral: Trump Fires FBI Director James Comey

President Trump’s May 15 firing of FBI Director James Comey unleashed a string of events the nation may feel for years.  By the end of that week, the Justice Department, under mounting public and political pressure, named a special prosecutor to pursue the investigation into possible collusion between the Trump campaign and Russia in interfering in the 2016 presidential election. Published reports soon indicated investigators were targeting a “person of interest” working on the White House staff.  Those reports described the unnamed individual as “close” to the President. It’s now apparent that person is Trump’s son-in-law, Jared Kushner.  Cable news stories, editorial pieces, and blogs suggested Trump’s personal actions constituted obstruction of justice.  A few Congressional Democrats, and more than a few people around the country, openly began using the “I” word and Trump in the same sentence.

Facts aren’t in yet   We know some of the facts of Trump’s conduct, but not everything.  We know he has offered public statements that, on their face, seem like an effort to shut down or impede the FBI’s Russia investigation. He told NBC’s Lester Holt he fired Comey because of that investigation, despite the pretext of dissatisfaction with Comey’s handling of the Hillary Clinton e-mail matter. Published reports indicated Trump asked Comey to stop investigating his fired national security advisor, General Michael Flynn.  Comey supposedly wrote a memo shortly after that conversation, contemporaneously memorializing the President’s effort to get him to drop that investigation.  The Comey memo hasn’t been released and Comey hasn’t testified about that meeting. Reportedly, he’s agreed to appear before the Senate Intelligence Committee in early June. Until everything comes out, we can’t know the exact facts. What we do know has the odious smell of obstruction of justice

We can’t say if the special prosecutor will conclude Trump’s actions constitute obstruction of justice. As Henry, the one of us who’s served as a judicial officer charged with applying the law of obstruction of justice, points out, federal obstruction statues are complex and subject to differing interpretations. As legally trained individuals, we recognize the importance of basing conclusions on complete factual development of the record and a full understanding of applicable law.

Woodson, however, has seen enough.  He says, “The President encouraged Flynn to plead the Fifth, though Flynn remains under investigation for operating as a foreign agent while serving as National Security Advisor and for colluding with the Russians in interfering in our national election. Trump fired the FBI director for not conducting the Russia/Trump investigation in a manner that suited hm.  He asked the heads of the National Intelligence and National Security agencies to declare that they found no collusion between the Trump campaign and Russia when they made no such finding. If those actions don’t constitute “High Crimes and Misdemeanors,” I don’t know what does.

“I think few legal scholars would conclude Trump’s actions don’t amount to obstruction of justice. Ultimately, an elected Congress must determine the political question of what constitutes “High Crimes and Misdemeanors.”  I align myself with Justice Potter Stewart’s sentiments when he explained his determination of pornography. I know “High Crimes and Misdemeanors” when I see them.”                   

No crime needed   Despite Rob and Henry’s unwillingness to now say that Trump has committed an impeachable offense, they have no difficulty expressing their moral, political, and patriotic outrage about what’s happened so far.  We titled this piece as we did because we could find no better phrase than Woodson’s characterization of the President’s behavior. “Unimaginably immoral” sums up our feelings about the potential irreparable harm Trump’s acts continue to do to our country’s political and social institutions. We all agree that if Congress and the courts – the co-equal branches of our government – don’t move systematically against him, removing him from office if the facts and law ultimately justify doing so – it may take years for those institutions to recover.

The political calculus concerning impeachment remains much the same as we suggested in our earlier comments on that subject.  With all due respect to Woodson’s belief that it will happen this year, a sober analysis of the politics still makes that a long shot. Special counsel Robert Mueller faces a potentially long and complex investigation. Criminal charges against Trump’s associates, if Mueller brings them, may take years to prosecute.  While Mueller builds cases against individuals, Republicans retain the levers of power in the House where impeachment must originate. They haven’t abandoned Trump and any honest assessment of the mood of Congress still must give him the advantage. Even revelations that Trump shared with the Russians sensitive American intelligence, probably given to the United States by Israel, didn’t pry Republicans from Trump’s side.

Trump’s conduct, especially this sharing of classified intelligence with a hostile foreign power, saddens and sickens us because we grew up in an America that considered such behavior treason.  We find watching the party of Lincoln hem and haw about Trump’s actions especially troubling, since Republicans so often found it convenient to run campaigns challenging Democrats as unpatriotic. The idea an American President could act in such a way long seemed unfathomable to us, but if holding power means everything, we suppose Republican acquiescence to his behavior follows. Trump’s conduct, if unpunished, suggests we’ve become a nation of men, not laws.

Not over until it’s over   We must admit, however, to borrow another overused sports cliché, the fat lady hasn’t sung yet. Neither Mueller’s investigation nor the probes by Congress have come to fruition. Indeed, Mueller just picked up the baton. He enjoys a reputation for determination, independence, and fairness.  Time remains for good Republicans to step forward and become heroes by putting country ahead of party.                        

            

Elections and Airplane Crashes

            A few years ago, Malcolm Gladwell wrote a wonderful book called Outliers: The Story of Success.  He offered intriguing theories about life and achievement, including the notion that real competence in any endeavor requires doing that endeavor for 10,000 hours. Leaving aside the fact a few social scientists scoffed at Gladwell’s 10,000 hour rule because, they contended, he offered insufficient empirical data in support of it, we’ve found the 10,000 hour idea, and others he advances, compelling.  One of those offers a path for analyzing the election, his way of looking at airplane crashes.

Gladwell devoted most of his attention to cultural factors, like inadequate cockpit communication born out of the reluctance of co-pilots from some cultures to challenge captains about things they saw going wrong because to do so would have been to question authority in a way their societies don’t permit.  Gladwell, however, also made a point some others make about air crashes – that many result from the cascading effect of little things going wrong that add up to a major catastrophe. In most instances, removal of any one of these “little things” from the equation would have averted the crash.  As we think about Gladwell’s view of air crashes, the more parallels we see with the election.

Little Things The issue of race figures prominently in most analyses we’ve seen of the election.  Pundits point out Donald Trump’s support among white working class voters, add in his offensive rhetoric about ethnic groups, and the instant analysis says Trump won because of a white backlash against immigrants, Muslims, the first black president, etc. More left-leaning analysts saw Trump’s appeal to white voters in general, and Hillary Clinton’s weakness among them, and concluded that out-and-out white racism decided the election.

Then, there is the matter of Clinton’s complicity in her own defeat.  People supporting this theory look at both the technical/strategic and the personal.  At a technical/strategic level, they point to her campaign’s failure to see—until it was too late – Trump’s surge in the upper Midwest and her selection of Tim Kaine as a running mate instead of a Hispanic, like Housing Secretary Julian Castro, who might have produced a larger Hispanic vote for the Democrats.  These analysts, in effect, argue that Clinton could have denied Trump the White House just by running a better railroad.  On the personal front, others take her to task for the flaws that created some of her heaviest political baggage, such as her penchant for privacy and secrecy that likely led to installation of the private e-mail server. Another variation of this argument focuses on ill-advised decisions Clinton (and her husband) made before the campaign – giving the Wall Street speeches, how the Clinton Foundation operated, filling her circle with corporate and social elites instead of cultivating more relationships with working class people.

Happenings Then, of course, some things just happened, beginning with FBI Director James Comey’s meddling in the election in the name of keeping a promise to Congress.  Nothing required Comey to make that promise in the first place and nothing compelled him to speak on either of the two occasions he did during the last days of the campaign --- October 28 when he dropped his first bombshell letter and the Sunday before the election when he tried to clean up the mess with an exculpatory letter. The damage was done.

We could go on with the list of theories about why Trump won and Clinton lost, but we’ve made the point. Any of these things, if changed just a little, could have altered the outcome of the election.  In that sense, the 2016 election resembles the air crashes Gladwell describes in Outliers.  No one will ever explain the result by reference to just one thing or one set of things. The outcome just shows how complex and nuanced a world we inhabit.

Lessons What do we learn from looking at the election through this disaster prism?   Three lessons, we suggest.  First, be careful about drawing broad simplistic conclusions.  As journalist Mark Shields reminded us last week, many of the rural and small town areas in Michigan and Wisconsin that Trump carried so solidly went for Barak Obama in 2008 and 2012.  That should give us pause about automatically casting the inhabitants of those areas as bigoted, narrow-minded racists promoting mass backlash. Without absolving them from complicity in Trump’s nastiness, we can acknowledge that maybe they mostly seek a magic bullet that will expunge the effects of the things that make them feel left out of the new economic and cultural order.  Obama promised “change” too. Maybe that message, not the color of the messenger, rings truest with them.

Second, campaigns matter.  Trump ran a terrible campaign as measured by traditional standards of the craft. But, it didn’t matter, given his celebrity status. Clinton, on the other hand, supposedly the superior technical politician, made critical mistakes.  The three of us are avid sports fans and we know what will get any football or basketball team beat, no matter the difference in talent – turnovers.  Hillary turned the ball over plenty in this campaign and it eventually caught up with her.

Finally, in campaigns as in air crashes, some things happen that no pilot can control. If the tail section breaks off no amount of pilot skill can save the plane. That’s probably the best analogy for the Comey letters.  Sometimes things just happen.

A zillion ways exist to look at this election. For progressives like us, it was a disaster of the first order. But trying to assign one simple explanation makes it all the more likely something like this will occur in the future. We need to know all the possible causes, no matter how small.