By David Thornton
Barack Obama was not impeached and Donald Trump isn’t likely to be, even if it can be proven that he colluded with the Russians during the election.
The Constitution is very specific about the basis for impeachment. Article II Section 4 states, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
People, both conservative and liberal, who want to impeach a president for policy differences or because they don’t like him are acting outside the bounds of the Constitution. Even a president who commits crimes that do not rise to the standard of “high crimes” may not to be subject to impeachment.
Article III of the Constitution helps to interpret the rules for impeachment. For example, “treason against the United States,” is defined in Section 3 as “only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” Section 2 specifies “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.” This implies, but does not require, that impeachment would be the result of an indictable offense.
Less clear is the meaning of the phrase, “high crimes and misdemeanors.” The Constitutional Rights Foundation notes that this phrase had been common in English law since 1386 and would have been familiar to the Framers, who adopted it with little discussion. At its core, the phrase implies abuse of office and unfitness to serve.
The CRF also points to the Federalist Papers for clarity on impeachment. In Federalist No. 65, Alexander Hamilton wrote that impeachable offenses are “those offences which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”
In the case of President Trump’s alleged coordination with the Russians during the campaign, he would likely be safe from impeachment even with incontrovertible proof. In 1872, Schuyler Colfax, vice president to Ulysses Grant, was threatened with impeachment for corruption and bribery. The House Judiciary Committee ultimately decided that Colfax could not be impeached because the alleged bribe occurred before he was elected vice president. The committee believed that the matter should be handled by the courts instead of Congress. Colfax was never indicted or impeached.
Conversely, in 1973, the Office of Legal Counsel wrote that it was unacceptable for a jury of 12 individuals to overturn the will of the nation as expressed in an election. In a memo, the counsel argued that it “is more fittingly handled by the Congress than by a jury, and such congressional power is founded in the Constitution.”
President Trump would have two defenses under these legal theories. First, the actions that might trigger an impeachment, from sexual harassment to Trump University to collusion with the Russians, occurred before he was elected president. Therefore, under the Colfax memorandum, they would not be impeachable offenses.
Second, these actions were also known to the voters during the election. People knew that Trump was a Putin aficionado, they knew about his history with women and they voted for him anyway. It would be problematic for the courts or Congress to overturn the election under those circumstances.
Nevertheless, the ongoing investigation into Russian meddling in the election has dangerous consequences. If it is proven that Vladimir Putin intervened in the election on Trump’s behalf and that Trump purposely acted in concert with the Russians, it would almost certainly trigger a constitutional crisis over how to handle the matter.
Ultimately, impeachment is a political institution as well as a legal one. The same thing that prevented President Obama’s impeachment may be what stymies attempts to impeach President Trump as well. President Obama may well have been saved by the fact that the Democrats had a majority in at least one house of Congress for most of his term.
Under the Constitution, the House of Representatives votes to impeach the president and the Senate holds a trial to decide whether to remove him from office. Two presidents, Andrew Johnson and Bill Clinton, have been impeached, but neither was removed from office. It is likely that the pattern would have continued if House Republicans had voted to impeach Obama.
From 2010 on, the Republicans held control of the House, but Democrats held the Senate until after the 2014 elections. It would have been pointless to impeach Obama if he could not be removed from office. After 2014, even if serious charges could have been brought against Obama, the result of removing him from office would have been placing Joe Biden into the presidency. As an incumbent, he would have had a large advantage in the 2016 elections and, given the weakness and unpopularity of both Hillary Clinton and Donald Trump, Biden may well have become president.
Democrats face the same problem today. As long as Republicans control Congress and remain reasonably unified, impeachment is a nonstarter. If Democrats do gain control of Congress and push through an impeachment, President Trump will be replaced by President Pence, who would probably be much more popular and effective. Trump’s impeachment may well prove to be a boon for the Republican Party instead of the Democrats.
The Democrats would also be taking a risk that Trump would be impeached but remain president. Bill Clinton’s popularity soared to record highs after his impeachment. The Clinton impeachment also served to unify Democrats and deepened partisan divisions in Washington. The impeachment of Andrew Johnson for a noncriminal offense also later came to be seen as politically motivated and a partisan error.
The big risk of impeachment for President Trump comes from his actions going forward. If he proves to be corrupt in office, he could turn enough Republicans against him to make impeachment a possibility. Likewise, the originalist interpretation of “high crimes and misdemeanors” could include incompetence and unfitness as a leader. If Trump, who has no experience in government, proves to be such a bad leader that the nation is endangered by his administration, a difficult standard to meet, even a Republican Congress may find itself looking for alternatives.