To Impeach or Not to Impeach

Laurence A. Tribe and Joshua Matz have cowritten a new book: To End a Presidency: The Power of Impeachment. Jennifer Rubin of the Washington Post interviewed them to see where they stand on the potential impeachment of President Trump. I found myself agreeing with most of their points. One in particular surprised me.

I hadn’t thought of it, but it’s true that Congress has the responsibility to enforce the Emoluments Clause of the Constitution which prohibits the president from taking things of value from foreigners.

“No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

It’s true that Congress is currently controlled by the president’s party, but it’s also true that they have made no effort to make the president comply with the Emoluments Clause. They haven’t explicitly consented to Trump taking presents and emoluments, but nor have they taken any steps to rein him in. For Tribe and Katz, this lack of congressional action argues against treating Trump’s emoluments violations as high crimes or misdemeanors worthy of removing him from office. Things would be different if Congress identified violations and ordered the president to address their concerns. In that case, defiance on the part of the president would be a very serious matter.

In a scenario where one or both branches of Congress fall to the Democrats in the midterms, we could see the new Congress move to regulate how Trump operates his businesses in an effort to remove the potential for foreign influence on his decision making. This could involve compelled divestitures, a more thorough quarantine, a system agreed upon to add transparency and to handle problematic foreign receipts, or some solution I can’t currently imagine. It would be hasty to move straight to an article of impeachment without first making the effort to enforce the Constitution.

I also agree with Tribe and Katz that it’s generally a bad idea for the House to impeach a president when there is no prospect of a Senate conviction. The Republicans give us all the greatest incentive to cynicism in this regard, but there are two things to keep in mind. One is that we cannot know how compelling the case is for impeachment prior to seeing the evidence the special counsel has gathered. The other is that there’s a distinction between “no prospect” for conviction and something closer to a toss-up. During the impeachment of Bill Clinton, it was clear that he would never be convicted but the Republicans proceeded anyway. That’s not something that should be lightly emulated, and there are theoretically steps before impeachment like censure that could correct and punish a rogue president.

The thing to keep in mind is that this isn’t necessarily a case of venality, as in the case of Spiro Agnew, or abuse of power, as in the case of Nixon, or of perjury and potential obstruction of justice, as in the case of Bill Clinton. It could be or become all of those things, but the primary concern is about the possibility that the president is compromised by a foreign power, subject to blackmail, and that his behavior and decisions are reflecting an allegiance less to our country than to the interests of Russia. There’s also a concern that he’s putting his business interests ahead of a serious and considered foreign policy process, which may have already have influenced decisions he’s made with China, Indonesia, the Philippines, Qatar, the United Arab Emirates, and Saudi Arabia.

It’s because of the seriousness of these concerns that we can’t really compare our current situation to prior presidents whose behavior has been criminal to one degree or another. I’d add to this that Trump’s behavior is erratic in a way we haven’t seen in our modern history outside of the last days of Nixon’s administration. It’s highly unusual that so many of his cabinet members and top advisors have referred to him as an idiot or a moron or questioned his mental health. Whatever else you might have said about Nixon or Clinton, they performed their basic duties competently and didn’t make glaring and costly mistakes on a routine basis that caused rifts with our allies and misunderstandings with our adversaries.

There’s an urgency to removing Trump from office that is independent of his alleged crimes.

Tribe and Katz look at this question from the perspective of a congressperson who will campaign with certain messages and then have to make certain decisions if elected or reelected to office in November. That’s an appropriate way to analyze this question, and they’re right when they say this:

If you are a member of the House and want to start thinking about whether there are grounds for impeachment where do you begin? 

You should start by seeking answers to a few key questions: why did the Framers create an impeachment power; how has it been used and abused; what are the risks of action and inaction; and what decisions must I make throughout an impeachment process. Once you have a grip on the power you’re exercising, you need to learn the facts — not as presented on cable TV or in op-ed columns, but as identified by a respected, thorough and impartial investigator. That might mean trusting a special counsel or the House Judiciary Committee, or it might require the creation of a special bipartisan House committee. At all stages of this process, you must do your best to act with principled impartiality and seriousness of purpose. That doesn’t mean ignoring your constituents, your political party or your own political vision. But it does require a greater measure of caution and high-minded statesmanship than you bring to the rest of your work. You must constantly ask yourself: “Would I be approaching this the same way if I had the opposite view of this president’s political ideology and party affiliation?” And in the end, you must decide if the president truly poses a continuing threat to the Republic.

For my part, the president most definitely poses a continuing threat to the Republic but that doesn’t mean necessarily that he has provided Congress with the grounds to remove him from office. To be more precise, the case has been made for me but it has to be made in a compelling enough fashion to make a conviction at least a possibility. Part of high-minded statesmanship and seriousness of purpose is being honest with yourself about where the remedies presently stand.

A Democratic Congress’s first priority should be to correct the president’s behavior where it has the constitutional authority and responsibility to do so. Its second priority should be to receive Mueller’s evidence (assuming it hasn’t already been delivered by then), and to work over the information in a systematic way. If that means calling more witnesses and compelling more documents, then that’s the prudent course. At some point, there will be choice to make. Will the House draft articles of impeachment and pass them? When they’re making that decision, their prospects for a conviction should weigh heavily, but if the case is compelling that the president has been compromised, I don’t see how they can fail to move ahead.

If the case is that compelling, the way the Republicans are treating this investigation now will no longer be operative. We shouldn’t prejudge how they’d act in those circumstances. I can envision a future where the case is indisputable and the GOP refuses to budge. But I can also envision a future where justice is done because the facts really leave no other choice.

Martin Longman

Martin Longman is the web editor for the Washington Monthly and the main blogger at Booman Tribune.