Impeachment ... Now? - Part I

Almost since the beginning of the Trump presidency, there has been talk of impeachment.  Since Michael Cohen’s recent testimony before the House Committee on Oversight and Reform, the drumbeat has gotten even stronger.  The leadership of the Democratic Party has been hesitant, fearful of moving too quickly and alienating independents, to say nothing of Trump’s base.  Younger members of Congress have been more aggressive.

But much of the debate has been hobbled by confusion over the meaning of the word “impeachment.”

The Atlantic magazine’s Yoni Appelbaum has written an excellent article in which he emphasizes:

Impeachment is a process, not an outcome, a rule-bound procedure for investigating a president, considering evidence, formulating charges, and deciding whether to continue on to trial. [my italics]

Impeachment is like a grand jury’s investigation that decides whether a trial is warranted.  The question facing Congress now is not whether the president should be removed from office but only whether the House of Representatives should initiate the process that will determine whether there is ample evidence to send the case to the Senate for trial.

Should the House Begin the Inquiry?

As we have been exploring in this blog, Donald Trump’s behavior since becoming president certainly warrants investigation into his fitness for office.  Cohen’s testimony only strengthens that conclusion.

Appelbaum reviews some of the data:

• Although his oath of office pledges him to put the interests of the country ahead of his own, the President has repeatedly sought to use his position to enrich himself financially,
•      not only refusing to divest himself of his business ventures,
•      but also refusing even to disclose what his business holdings are, and
•      using his position to publicize and encourage people of power and wealth to frequent his hotels and golf courses.
• President Trump has repeatedly demanded that many of the public servants he appoints pledge loyalty to him rather than to their office or to the country.  The President has sometimes dismissed them for refusing, e.g. James Comey when he was director of the FBI.  
• He has attempted to use the Justice Department to launch criminal investigations into his enemies, including those who are simply political enemies like Hillary Clinton.

As Appelbaum writes, “Trump has repeatedly trampled upon [the liberties guaranteed by the Constitution]:

• He pledged to ban entry to the United States on the basis of religion, and did his best to follow through.
• He has attacked the press as the “enemy of the people” and barred critical outlets and reporters from attending his events.
• He has assailed black protesters.
• He has called for his critics in private industry to be fired from their jobs, for instance, when he demanded that CNN fire president Jeff Zucker.
• He has falsely alleged that America’s electoral system is subject to massive fraud, impugning election results with which he disagrees as irredeemably tainted. …

These actions are, in sum, an attack on the very foundations of America’s constitutional democracy.”

What Are the Criteria for Removal?

So there are many reasons to question and investigate Trump’s fitness for office.  But at this point there has been no crime for which the President could be convicted in a court of law.  So can he the removed from office on the basis of his actions so far?

According to the Constitution, the president can be removed from office only for “treason, bribery or ‘high crimes and misdemeanors.’”  The meanings of “treason” and “bribery” are relatively straightforward.  It is the definition of “high crimes and misdemeanors” that is contested.

While most impeachment hearings have concerned alleged crimes, such as President Clinton’s lying under oath, a criminal offense is not necessary.  Impeachment is a political process not a criminal one.

Wikipedia suggests that “high crimes and misdemeanors” comprise some combination of

• perjury of oath,
• abuse of authority,
• bribery,
• intimidation,
• misuse of assets,
• failure to supervise,
• dereliction of duty,
• unbecoming conduct,
• refusal to obey a lawful order,
• chronic intoxication, and
• tax evasion.

The list is long and many of the elements are imprecise.

Impeachment has vague boundaries.

University of North Carolina law professor Michael Gerhardt conservatively sums up the academic consensus:

“The major disagreement is not over whether impeachable offenses should be strictly limited to indictable crimes, but rather over the range of non-indictable offenses on which an impeachment may be based.”

It is that range of offenses that is a political, not legal, judgment.

The Right Time?

It seems clear that there is enough evidence to justify beginning the inquiry.  The more crucial question is whether this the right time to impeach the president.  It’s not a straightforward question.  Should it be a “political judgment” or are there deeper criteria?

My next post will look at whether now is the right time to impeach the President.