IF PROCEEDING WITH IMPEACHMENT: A CLEAR AND UNDERSTANDABLE GUIDE TO THE ARCANE PROCESS

DR CHARLES E. MORRISON WRITES — As the result of a “whistle-blower” complaint alleging a presidential abuse of public office for political gain, the United States House of Representatives has embarked on a formal “inquiry” which may lead to impeachment of President Donald Trump.   In almost 230 years of U.S. history of its 1787 Constitution, impeachment has been very rare, and no president has actually been removed from president, although one resigned.  This memo is intended to help understand the process and how it is unfolding.  However, as developments are happening very quickly, we may update periodically.

Is the current impeachment effort a serious challenge for Mr. Trump?   Yes, the whistle-blower complaint now driving the impeachment debate is credible and involves informed, if not direct, evidence of wrong-doing and cover-up.  Moreover, the Congressional inquiry, backed by depositions and subpoenas, may display a broader pattern of partisan political activity by the Trump government.   Because the President retains strong support among his base voters and the Republican majority in the Senate, actual removal from office is highly unlikely, but it is not impossible.  Depending on how the process plays out, the evidence presented, and the public reaction to it, President Trump could be forced to leave office either by removal or resignation, if his political support, which so far has been stable, collapses.

For what can an American president be impeached?  Since the framers of the Constitution chose a presidential rather than parliamentary system, they provided an impeachment mechanism under which a sitting president could be removed, although not easily, for “treason, bribery, or other high crimes and misdemeanors.”  But “other high crimes and misdemeanors” were not defined and there are no objective standards, but the phrase is generally thought to mean actions violating the public trust or “abuse of power.”  They do not need to constitute a specific crime.

How does the impeachment process work?  Articles of impeachment must originate in the House of Representatives.  Should they be approved by a majority there, an impeachment trial, presided over by the Chief Justice of the Supreme Court, takes place in the U.S. Senate.   The president is removed only if at least two-thirds of the Senators, a very high bar, vote in favor.

How many presidents have been impeached and removed?   Serious impeachment efforts against presidents have occurred only three previous times.  Post-Civil War president Andrew Johnson (1868) and Bill Clinton (1998) were impeached in the House, but finished their terms when acquitted in the Senate.  Richard M. Nixon (1974) chose to resign prior to a House vote on impeachment since his political support in the Congress had collapsed.  A Senate trial never occurred.

What has happened so far?  There have been some calls for impeachment soon after Mr. Trump’s election, mostly focused on alleged collusion with Russia in the 2016 elections and obstruction of justice.  House Speaker Nancy Pelosi resisted this pressure, in part because she did not believe a majority of the citizenry would understand the charges or favor a long and costly trial, and that it would be preferable to vote the President out of office in 2020.  Moreover, this issue was being looked into by a special prosecutor, Robert Mueller.  When Mueller found no conspiracy but also did not exonerate the President, it appeared unlikely any further action would go forward.

However, the September 2019 revelation of a complaint by an intelligence analyst “whistle-blower,” which was judged credible by the intelligence community’s inspector-general, dramatically changed sentiment among Democratic members of Congress.  The whistle-blower claimed that he had learned that Mr. Trump, in a July 25 phone call with new President Volodymyr Verensky of the Ukraine, had asked the Ukraine to investigate former Vice President Biden, who was leading in the U.S. polls, and Biden’s son, Hunter, for possible corruption.  President Trump also asked for investigation of discredited allegations of Ukrainian assistance to the Democratic side during the 2016 election.  The Biden case was being pursued by Mr. Trump’s personal lawyer, former New York City mayor Rudy Giuliani, outside normal U.S. Executive branch processes, while Mr. Trump also urged Mr. Verensky to work with Attorney-General William Barr.  The whistle-blower also reported that in July, aid to the Ukraine, designed to resist Russian aggression in the east, was put on hold at White House request for several weeks for unexplained reasons, giving the appearance of using aid as a lever to push Ukrainian compliance with the President’s demands.  Finally, the whistle-blower claimed that the records of the phone call, although not sensitive for reasons of national security, were given exceptional security treatment after the call, indicating some in the White House were worried about the political and legal sensitivity of their content.

Why are the whistle-blower’s allegation serious?  They accuse the President of abusing his public office for private political advantage vis-à-vis a possible 2020 election opponent, and they appeared to use other government officers and institutions for political gain.  This alleged violation of a public trust outraged many Democrats, and resulted in a strong shift in party support for launching an impeachment process which Speaker Pelosi could not ignore.   These Democrats do not necessarily believe removal from office will be successful, but hope it will help politically punish an office-holder who has abused public trust as well as deter such actions by any future presidents.  Some Republicans have also said they are troubled by the allegations.

Arguing that his phone call was innocent, even “perfect,” Mr. Trump released a summary against the advice of some of his staff and Vice President Pence, and a move which some Republican strategists now regard as poorly thought out.  It showed that Mr. Trump did ask as a “favor” his Ukrainian counterpart for an investigation and referred to U.S. support for the Ukraine, but the President did not explicitly mention a quid pro quo or sanction, thus allowing pro- and anti-Trump partisans to interpret the call in their own way.  However, because the contents accurately reflected the description of it by the whistle-blower, who had not heard the conversation, it gave credibility to the other whistle-blower information.

What comes now?   House Speaker Nancy Pelosi approved an “inquiry” into impeachment.  She has indicated she wants the process to narrowly focus on the Ukrainian events and for the House to act within weeks, perhaps even by November.  She has designated the House Intelligence Committee as the central committee for the inquiry, although other committees may investigate areas in their jurisdictions.   Despite a current two-week Congressional recess, subpoenas for witnesses have been issued by the House Intelligence and other committees, and documents demanded from the Department of State.   If warranted by the inquiry, the House Judiciary Committee would draft the articles of impeachment.

What happens if impeachment is approved in the House.  Action switches the U.S. Senate.  The House chooses “managers” who act as prosecutors for the trial, while the President’s lawyers will defend him.   Senate Majority Leader Mitch McConnell has said that he would have no choice but to proceed.  If the President’s popularity has held up in his party, a two-third vote in support of impeachment is unimaginable, and McConnell may choose to have a quick vote in order to exonerate the President well ahead of the election.  The closer the Senate trial is to the November 2020 elections, the more potentially damaging it could be for some Republican Senators and Congressmen.  At this point, there could be much greater pressure on the President to resign to avoid a Senate vote.

What role will public opinion play?  Whether an impeachable crime has or has not occurred is more in the eye of the beholder unless there is a clear “smoking gun,” or evidence of a crime and guilt.  As a result, public opinion and voter sentiment, the most important currency for any politician, will have an enormous impact on the outcome.  The President is already seeking to influence public sentiment through advertisements attacking Mr. Biden and his son.

Will President Trump’s base support hold up?   This is the key question.  Some Republicans believe that a formal impeachment inquiry will strengthen the President’s support (as it did in Bill Clinton’s case), while Democrats are counting on it to hurt it.  Forty percent of U.S. voters say they are neither Republicans or Democrats, but independent voters.  The battle, whether over impeachment or in the next election, is over support within this group.

President Trump’s is a uniquely polarizing, political president, in part because he has chosen to cater to his base rather than seriously try to reach beyond it.  As a result, he has had unusually stable and strong support from those who voted for him, who regard him as a loyal to their agenda.  Nationally, Mr. Trump’s job approval rating has hovered at about 42-45 percent (not far below his 46% popular vote in 2016), while disapproval has been 52-55%.  While there are some signs of “Trump fatigue,” there is no indication yet of a collapse of support in his base.   His support rating would have to fall to far lower levels (below 35%), similar to those for Nixon at the end, for there to be any prospect of successful impeachment.  There are some early polls that suggesting that support for impeachment has risen to 50% or more, but until time passes it is difficult to assess whether this is a spike based on recent news or a more significant change of public sentiment.

Do the Democrats have anything to lose?   Yes, it is a gamble for them.  If the impeachment proceedings are seen as highly partisan, unfair, or petty, it is likely to rebound against Democratic presidential and Congressional candidates.  If prolonged, the impeachment proceeding will deflect attention from the Democrat’s positive social agenda and make them appear more as a party focused on revenge and opposition for its own sake.  This late in the term, many ordinary citizens will wonder why this should not be decided by the 2020 election instead of some convoluted process in Washington.

What challenges does President Trump face in defending himself?  Solid evidence of abuse of office, erratic and defensive reaction by the President, and poor judgment could open holes in his support, including within his own administration.  The President is in a very delicate position. If forthcoming with information, he risks giving more evidence to his opponents.  If he “stonewalls” the process, as Nixon tried to do, he may look defensive and guilty as well as run the risk an additional charge of obstructing justice.  Mr. Trump’s initial approach has been to divert attention by alleging wrong-doing by others, attacking the whistle blower and other opponents, and portraying himself as a victim. This kind of response has worked for him in the past, but it can weary the public.  Also, this time the Congress has a coordinated, legal process for digging deeply into all of Mr. Trump’s claims.

Much will depend upon how the hearings are conducted and how credible the evidence is.   Once this process begins, Mr. Trump’s support may turn out to be much less solid than now believed and unravel with surprising speed.  Many Republican members of Congress face a challenging 2020 election, and if they believe the President will be a liability, they will begin to distance themselves from him or urge him to resign or not run for reelection.

What is President Trump likely to do?  The President believes that the House process is stacked against him and is a political witch-hunt, so a House vote for impeachment is unlikely to cause him to consider resigning or not running in 2020.  A loss of support in the Republican Senate, however, would be devastating and could force a resignation, especially if he could extract a promise of pardon from his successor.   The key groups to watch are the Republicans in Congress and any shifts of view among independent voters, a portion of whose support is critical for many Congressional Republicans.

Aside from Mr. Trump, who else may lose politically?  The controversy is certainly not good for Mr. Biden, who still tops the polls of challengers to the President in 2020.  Other than the president’s allegations, there is no evidence that he or his son did anything illegal under U.S. or Ukrainian law.   Mr. Trump and his personal lawyer allege that Mr. Biden, as vice president, sought the removal of a former Ukrainian prosecutor to protect his son’s position on the Board of a Ukrainian gas company.  But Mr. Biden’s son and the company whose board he was on were not under investigation then, and Mr. Biden’s effort to encourage removal of a former prosecutor was part of an official U.S. policy carried out in coordination with European donors, the World Bank, and International Monetary Fund.  It was intended to strengthen Ukrainian government oversight of corruption, not to weaken it.   Nonetheless, Hunter Biden took a board position with a Ukrainian natural gas company while his father was vice president.  Since the younger Biden had no experience in the industry and was paid an enormous salary, it is assumed that the position was offered to curry influence in the previous U.S. administration.

Who may gain?  If the charges are seen as credible by independents, the Democratic party as a whole expects to gain.   But, as mentioned above, the party may also look vindictive and over-political.  The Democrats running for president all support the impeachment inquiry.  Except for Mr. Biden, they stand to gain from the weakness of the front-runner, and, if the impeachment is successful, some of its earliest advocates, such as Senator Elizabeth Warren, may benefit from having shown foresight.

Within the Republican Party, Vice President Michael Pence, who would become President if Mr. Trump is impeached or resigns, may gain at least temporarily.  However, Mr. Pence would probably face an excruciating decision over whether to pardon Mr. Trump for his crimes, popular with remaining partisan Republican supporters, but not for the public as a whole.  In some scenarios, this may be the easiest way to secure Mr. Trump’s resignation but would make it almost impossible for Mr. Pence to win a 2020 election.  Should Mr. Trump be forced into an earlier resignation, however, there may be other Republicans who will seek nomination as their party’s candidate in 2020.  Some Republicans argue that on balance the Republican Party will be strengthened by being rid of Mr. Trump.

Will the impeachment process affect foreign policy?   Impeachment will be highly divisive and time and attention consuming.  This means that foreign policy issues will not receive their normal attention and presidential travel will be curtailed.  But this President generally has made high level foreign policy decisions based on instinct rather than deliberation and his own sense of political support.  This should not change, and the basic thrust and nature of U.S. foreign and trade policies are unlikely to significantly change.  There is some speculation that the desire for both parties to show an ability to cooperate may help passage of the U.S.-Mexico-Canada trade agreement.

——————————–

The author worked on ethics issues for a member of the U.S. Senate during the Watergate period. He is an independent political analyst and member of the board of the Pacific Century Institute, an alliance partner of LMU’s Asia Media International.

0

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.