SHOULD DONALD TRUMP BE IMPEACHED?

Peter Radan (24 October 2019)

Anyone with but a passing interest in American politics will be aware of the threat of impeachment that hangs over the head of President Donald Trump and of the partisan debate over whether or not he should be impeached by the US House of Representatives. If impeached, Trump would face a trial before the US Senate. If two-thirds of the Senate voted to convict Trump of any of the offences for which he was impeached, the only consequence to him would be that he would be removed from office.[1] However, he would "nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment according to Law" in relation to these offences.[2]

The Constitution and Impeachment

Before addressing the matter of whether Trump should be impeached, there is the preliminary issue of whether he has committed any impeachable offence(s). The US Constitution describes these as "Treason, Bribery, or other high Crimes and Misdemeanors".[3]

As to what comes within this definition of impeachable offences, in 1970, the then Minority Leader in the House of Representatives, Gerald Ford, famously quipped: "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history".[4] This glib statement can be readily ignored except to the extent that it highlights what Alexander Hamilton confirmed in 1788, at the time the Constitution was being ratified, namely, that these offences are "of a nature which may with peculiar propriety be denominated POLITICAL".[5] It for this reason that the trial that follows impeachment is held in the US Senate and not the courts.

Hamilton is also a useful source for what the Constitution's founders had in mind in relation to impeachable offences. In The Federalist No 65, he said that they were "offences which proceed from the misconduct of men, or in other words from the abuse or violation of some public trust ... [that] relate chiefly to injuries done immediately to the society itself".[6]

In The Federalist No 1, Hamilton gave an inkling of the type of men that would be guilty of such misconduct when he wrote:

Alexander Hamilton

"Among the most formidable of the obstacles which the new Constitution will have to encounter may readily be distinguished the obvious interest of a certain class of men in every State to resist all changes which may hazard a diminution of the power, emolument, and consequence of the offices they hold under the State establishments - and the perverted ambition of another class of men, who will ... hope to aggrandize themselves by the confusions of their country. ... A dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us ... of those men who have overturned the liberties of republics, the greatest number have begun their career, by paying an obsequious court to the people, commencing Demagogues and ending Tyrants".[7]

In 1792, during his tenure as Treasury Secretary in the administration of George Washington, Hamilton again described the sort of person who would commit an impeachable offence when he wrote:

"When a man unprincipled in private life, desperate in his fortune, bold in his temper ... despotic in his ordinary demeanour — known to have scoffed in private at the principles of liberty — when such a man is seen to mount the hobby horse of popularity — to join in the cry of danger to liberty — to take every opportunity of embarrassing the General Government & bringing it under suspicion — to flatter and fall in with all the nonsense of the zealots of the day — It may justly be suspected that his object is to throw things into confusion that he may 'ride the storm and direct the whirlwind'".[8]

Has Trump Committed any Impeachable Offence(s)?

More concrete indications of what constitute impeachable offences can be gleaned from the two Presidents that have been impeached - Andrew Johnson in 1868 and Bill Clinton in 1998 - and the one President that would have been impeached had he not resigned from office before the House of Representatives conducted a vote to impeach him - Richard Nixon in 1974.

In Nixon's case, the articles of impeachment dealt with offences relating to obstruction of justice, abuse of power, and defiance of subpoenas. In Clinton's case, the articles of impeachment related to obstruction of justice and perjury. The investigations currently underway by various committees of the House of Representatives in the wake of The Mueller Report into Russian interference in the 2016 elections and the now infamous "I would like you to do us a favor" telephone call,[9] between Trump and Ukraine's President Volodymyr Zelensky, may, in due course, lead to articles of impeachment on grounds similar to those involving Nixon and Clinton.

However, the articles of impeachment in the case of Andrew Johnson are instructive as to whether Trump has already committed an impeachable offence.[10] In Johnson's case, there were 11 articles of impeachment, mostly to do with various violations of the Constitution. However, Article 10 is the one of relevance as to whether Trump has committed a high crime or misdemeanor. It stated as follows:

President Andrew Johnson

"Andrew Johnson, ... unmindful of the high duties of his office and the dignity and proprieties thereof, and of the harmony and courtesies which ought to exist and be maintained between the executive and legislative branches of the government of the United States, designing and intending to set aside the rightful authority and powers of Congress, did attempt to bring into disgrace, ridicule, hatred, contempt and reproach the Congress of the United States, and the several branches thereof, to impair and destroy the regard and respect of all the good people of the United States for the Congress and legislative power thereof, (which all officers of the government ought inviolably to preserve and maintain,) and to excite the odium and resentment of all the good people of the United States against Congress and the laws by it duly and constitutionally enacted; and in pursuance of his said design and intent, openly and publicly, and before divers assemblages of the citizens of the United States convened in divers parts thereof ... did ... make and deliver with a loud voice certain intemperate, inflammatory and scandalous harangues, and did therein utter loud threats and bitter menaces as well against Congress as the laws of the United States duly enacted thereby, amid the cries, jeers and laughter of the multitudes then assembled".[11]

Even the most casual observer of Trump's behaviour as President would be aware of the endless stream of abuse that he has poured upon Congress and many of its members since he was inaugurated in 2017. Suffice to note here, a recent example is his tweet on 23 October 2019 in which he referred to the current impeachment inquiry as "a lynching". This comment was widely criticised as offensive, not only by Democrats, but by his Republican defenders such as Senate Majority leader Mitch McConnell and others, and followed his earlier condemnations of the inquiry as "a coup", a "witch hunt", and "bullshit".[12]

Article 10 in the Johnson impeachment could be appropriated almost word for word in an article of impeachment against Trump.

To Impeach or Not?

If, as suggested, Trump has committed an impeachable offence, the issue arises as to whether or not he should be impeached.

Several arguments have been raised by defenders of the President against him being impeached. The first, raised by White House Counsel Pat Cipollone in his letter to House Speaker Nancy Pelosi on 8 October 2019, is that the impeachment inquiry now being conducted by the House of Representatives is "constitutionally invalid".[13] The simple response to this claim, given the explicit references to impeachment in the Constitution, is that Cipollone is wrong.

The second argument is that impeachment would be tantamount to undoing the result of the 2016 presidential election. For example, on 22 October 2019, House Minority Whip, Steve Scalise, claimed that the current impeachment inquiry was an effort "to overturn the results of the 2016 election" and House Minority Leader, Kevin McCarthy, said: "The Democrats ... are abusing their power to undo an election."[14] This too, is a spurious argument.

The impeachment and conviction of Trump would not undo the result of the 2016 election. It would merely remove him from office in accordance with constitutionally explicitly provisions that enable Congress to do so. The Republican administration which was elected in 2016 would continue, albeit under the stewardship of Trump's loyal acolyte, Vice-President Mike Pence.

If one were to accept the argument posed by Scalise and McCarthy, it would mean that an elected President could never be impeached. Republicans who now raise this argument against a Trump impeachment and who were around at the time, apparently forgot to raise this argument when Bill Clinton was impeached.

One can speculate as to whether Scalise and McCarthy would raise this argument were Trump to "stand in the middle of Fifth Avenue and shoot somebody". In January 2016, then candidate Trump (in)famously quipped that, were he to do that, he would "not lose any voters".[15] Trump may well be right that if, as President, he did shoot somebody in the middle of Fifth Avenue, he wouldn't lose any voters. And, it may be, as Trump’s attorney William Consovoy asserted on 23 October 2019 -, in court proceedings in New York relating to alleged hush-money payments made by Trump in 2016 - that the peculiar doctrine of presidential immunity would mean that Trump could not be tried for such a crime until after he ceased to be President.[16]  But, one would hope that Scalise and McCarthy would not delay in bringing forward that day by opposing Trump’s impeachment and conviction for committing such a crime on the ground that it would overturn the 2016 election result.

The third, and the only argument that has, and can, be been raised against the impeachment of Trump, is that he has not committed any impeachable offence for which he should be convicted. The validity of this argument is up to Congress to determine. Whether Trump, who his Acting Chief of Staff, Mick Mulvaney, aptly observed, "still considers himself to be in the hospitality business",[17] will be impeached and convicted is still to be seen.

Present indications are that the House of Representatives believes that he has, and will, in due course, impeach, but that the Senate believes that he has not, and will not convict.

Footnotes

[1] The Constitution: Article I, Section 3, Clause 6.

[2] The Constitution: Article I, Section 3, Clause 7.

[3] The Constitution: Article II, Section 4.

[4] https://www.smithsonianmag.com/history/what-you-need-know-about-impeachment-180963645/.

[5] ‘The Federalist No 65’ in Terence Ball (ed), Hamilton, Madison, and Jay, The Federalist with Letters of ‘Brutus’, Cambridge University Press, Cambridge, 2003, 317.

[6] 'The Federalist No 65, note 5 above, 317.

[7] ‘The Federalist No 1’ in Terence Ball (ed), Hamilton, Madison, and Jay, The Federalist with Letters of ‘Brutus’, Cambridge University Press, Cambridge, 2003, 2-3.

[8] <https://founders.archives.gov/documents/Hamilton/01-12-02-0184-0002>.

[9] <https://www.politico.com/story/2019/09/25/trump-ukraine-phone-call-transcript-text-pdf-1510770>.

[10] For a detailed account of the Johnson impeachment see Brenda Wineapple, The Impeachers: The Trial of Andrew Johnson and the Dream of a Just Nation, Random Books, 2019.

[11] <https://www.nps.gov/anjo/learn/historyculture/article-x.htm>.

[12] 'Trump compares impeachment probe to "lynching", again promoting political firestorm around race', The Washington Post, 23 October 2019.

[13] <https://www.lawfareblog.com/white-house-letter-congress-impeachment-inquiry>.

[14] <https://edition.cnn.com/politics/live-news/impeachment-inquiry-10-22-2019/index.html>.

[15] <https://thehill.com/opinion/campaign/463710-donald-trumps-fifth-avenue-moment>.

[16] ‘In Court hearing, Trump lawyer argues a siting president would be immune from prosecution even if he were to shoot someone’, The Washington Post, 24 October 2019.

[17] 'Trump Bowed to GOP on Doral' The Washington Post, 21 October 2019.