The cost of Trump’s folly

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Im­peach­ment would ex­act a high price on all sides

The U.S. Pres­i­dent may be only a few ma­jor mis­steps from fac­ing se­ri­ous calls for his re­moval from of­fice. But as David Shrib­man re­ports, im­peach­ment is a rad­i­cal step that im­poses ex­treme stresses on the po­lit­i­cal sys­tem – and ex­acts a high price on all sides

The po­lit­i­cal sci­en­tist who cor­rectly pre­dicted the re­sults of every Amer­i­can pres­i­den­tial elec­tion in the past three decades is out with a book set­ting forth the case for im­peach­ing Pres­i­dent Don­ald J. Trump. Mean­while, this week, Lawrence Tribe, the Har­vard Law School pro­fes­sor who taught for­mer pres­i­dent Barack Obama and Supreme Court Jus­tice Elena Ka­gan, has called for im­peach­ing Mr. Trump be­cause his “con­duct strongly sug­gests that he poses a dan­ger to our sys­tem of gov­ern­ment.” And a con­ser­va­tive House Repub­li­can and a House Demo­crat breached an im­por­tant sym­bolic bar­rier Wed­nes­day when they separately said the Pres­i­dent’s con­duct might merit im­peach­ment.

Though Mr. Trump only re­cently com­pleted his first hun­dred days in the White House, he may al­ready be only a few ma­jor mis­steps from fac­ing more se­ri­ous calls for his re­moval from of­fice. This month alone he has abruptly dis­missed FBI Di­rec­tor James Comey, who had been ex­am­in­ing pos­si­ble col­lu­sion be­tween Trump ad­vis­ers and Rus­sian of­fi­cials dur­ing last year’s elec­tion; faced an as­ser­tion by Mr. Comey the Pres­i­dent had asked him in Fe­bru­ary to shut down the in­ves­ti­ga­tion of for­mer na­tional se­cu­rity ad­viser Michael T. Flynn, who had ear­lier re­signed amid a scan­dal over his con­tacts with the Rus­sian am­bas­sador to the United States; and strug­gled to con­tain a con­tro­versy over shar­ing clas­si­fied in­for­ma­tion, with a Rus­sian diplo­mat, about a planned Is­lamic State op­er­a­tion.

Those con­tro­ver­sies cul­mi­nated this week in the ap­point­ment of for­mer FBI di­rec­tor Robert Mueller as spe­cial coun­sel to lead an in­ves­ti­ga­tion into “any links and/or co-or­di­na­tion be­tween the Rus­sian gov­ern­ment and in­di­vid­u­als as­so­ci­ated with the cam­paign of Pres­i­dent Don­ald Trump,” and the em­pow­er­ing of Mr. Mueller to press crim­i­nal charges.

De­spite talk of im­peach­ment in the air – Demo­cratic Rep. Al Green of Texas is the lat­est voice, com­ing, in his case, in the well of the House of Rep­re­sen­ta­tives – the truth is that im­peach­ment is a rad­i­cal step which, by in­tent and tra­di­tion, is re­served for rad­i­cal depar­tures from re­spectable po­lit­i­cal com­port­ment; im­poses ex­treme stresses on the po­lit­i­cal sys­tem; and ex­acts a high price not only on the pres­i­dent but also on the men and women who un­der­take the pro­ce­dure.

“Po­lit­i­cal fig­ures ap­proach this is­sue very care­fully,” says Ken Gorm­ley, au­thor of The Death of Amer­i­can Virtue, con­sid­ered the most au­thor­i­ta­tive ac­count of the events that led to the im­peach­ment of Bill Clin­ton in 1998. “There are many re­courses out­side im­peach­ment for peo­ple who are up­set with a pres­i­dent,” he notes. “Talk­ing about im­peach­ment, get­ting it to hap­pen in the House, and then hav­ing a suc­cess­ful Se­nate process are sep­a­rate steps, each very dif­fi­cult. And they can con­sume a coun­try and waste a lot of time.”

» Pres­i­den­tial im­peach­ment used to be one of those po­lit­i­cal in­stru­ments widely rec­og­nized but sel­dom em­ployed. Only three times have Amer­i­can pres­i­dents been put through this or­deal. Only twice have chief ex­ec­u­tives ac­tu­ally been im­peached. And never has a pres­i­dent been re­moved from of­fice through this process, which re­quires the equiv­a­lent of an in­dict­ment by a ma­jor­ity vote of the House and a con­vic­tion by two-thirds of the Se­nate in a trial that would be presided over by an­other of Prof. Tribe’s for­mer stu­dents, Supreme Court Jus­tice John Roberts.

In­deed, a full 130 years passed be­tween the 1868 im­peach­ment of An­drew John­son, who sur­vived re­moval by a sin­gle vote in the Se­nate, and the im­peach­ment of Mr. Clin­ton, who never was in se­ri­ous dan­ger of con­vic­tion in the Demo­cratic-con­trolled Se­nate of the time. Dur­ing those 13 decades – a pe­riod ex­tend­ing from Thomas Edi­son’s ap­pli­ca­tion for his first patent to Google’s ap­pli­ca­tion for in­cor­po­ra­tion – pres­i­dents from Ulysses S. Grant to War­ren G. Hard­ing faced sear­ing ques­tions about their roles in ma­jor scan­dals, and yet no se­ri­ous steps were taken to­ward im­peach­ing the 18th and 29th U.S. pres­i­dents.

The late his­to­rian David E. Kyvig, one of the few aca­demic ex­perts on the is­sue of im­peach­ment, wrote that the dor­mancy of im­peach­ment could not en­dure. “It was of­ten mistakenly writ­ten off as co­matose, if not com­pletely dead,” he wrote in his 2008 book, The Age of Im­peach­ment, adding that “it was merely slum­ber­ing and await­ing the call that would cause it to arise and demon­strate its vi­tal­ity.”

The re­sis­tance of Amer­i­can law­mak­ers to un­der­take for­mal im­peach­ment hear­ings in 2017 may be eroded by the fact that Congress has al­ready re­sorted to this pro­ce­dure twice in the past 44 years: the Clin­ton im­peach­ment grow­ing out of his re­la­tion­ship with White House in­tern Mon­ica Lewin­sky; and the Richard Nixon episode that grew out of Water­gate but stopped af­ter Mr. Nixon re­signed his of­fice rather than face cer­tain im­peach­ment, con­vic­tion and re­moval from the White House.

And yet the rel­a­tive fre­quency with which im­peach­ment has been em­ployed may make the process seem less for­bid­ding to con­tem­po­rary po­lit­i­cal fig­ures.

“This is a for­mi­da­ble process, but it is taken more lightly now than be­fore,” says Michael Les Bene­dict, Ohio State Univer­sity his­to­rian and au­thor of The Im­peach­ment and Trial of An­drew John­son, which, since its pub­li­ca­tion in 1973 – the year be­fore Mr. Nixon’s res­ig­na­tion – has been re­garded as the stan­dard ac­count of that first such lev­el­ling of charges against an Amer­i­can pres­i­dent. “Im­peach­ment may even have be­come part of the or­di­nary lex­i­con of politics,” says Mr. Bene­dict. “But the process was never thought about eas­ily, and the word was never bandied about un­til re­cently, when it has be­come eas­ier to con­tem­plate by peo­ple who re­ally dis­like a pres­i­dent.”

Even so, the mere men­tion­ing of im­peach­ment – still the con­gres­sional process that, as a rule, dare not speak its name – by two law­mak­ers, Rep­re­sen­ta­tives Justin Amash, a Michi­gan Repub­li­can, and Ted Deutsch­land, a Demo­crat of Florida, in a sin­gle day this week was taken as an im­por­tant po­lit­i­cal mo­ment, far more sig­nif­i­cant than the ear­lier ca­sual in­vo­ca­tions of im­peach­ment by two Democrats, Rep­re­sen­ta­tive Max­ine Wa­ters of Cal­i­for­nia and Sen­a­tor Richard Blumenthal of Con­necti­cut. Just as knowl­edge­able base­ball fans know not to men­tion that a no­hit­ter is in progress lest the feat be dis­rupted, po­lit­i­cal fig­ures know not to men­tion im­peach­ment lest the fu­ries be un­leashed.

In 1974, as in 1998 and 2017, the ef­fort to de­fine an im­peach­able crime has been at the cen­tre of the po­lit­i­cal de­bate.

Im­peach­ment has its roots in Bri­tish law, dat­ing to the 14th cen­tury, and so was fa­mil­iar to the men who met in 1787 to re­cast the coun­try’s gov­ern­ment by re­plac­ing the fail­ing Ar­ti­cles of Con­fed­er­a­tion with the Con­sti­tu­tion that still pro­vides the con­tours of the Amer­i­can gov­ern­ment. More­over, sev­eral state con­sti­tu­tions in ef­fect at the end of the 18th cen­tury pro­vided for im­peach­ment as a rem­edy for “mal­ad­min­is­tra­tion” or “cor­rup­tion” – the con­cept was well es­tab­lished in the New World when the Con­sti­tu­tional de­lib­er­a­tions be­gan.

So it was nat­u­ral that when th­ese men – the group in­cluded Ge­orge Wash­ing­ton and James Madi­son, who would be­come pres­i­dents, and Alexan­der Hamil­ton, a cere­bral po­lit­i­cal the­o­rist who later be­came the first sec­re­tary of the trea­sury – be­gan to craft a new Con­sti­tu­tion, they in­cluded im­peach­ment in their early drafts.

In­deed, th­ese Framers, as they be­came known, de­bated im­peach­ment even be­fore they de­cided that the new ex­ec­u­tive branch of the United States gov­ern­ment would be headed by a sin­gle pres­i­dent rather than by a coun­cil of ex­ecu­tors. A re­port pub­lished by the House Ju­di­ciary Com­mit­tee af­ter the ef­fort to im­peach Mr. Nixon in 1974 noted that, early in their work, the Framers unan­i­mously en­dorsed a pro­vi­sion per­mit­ting the re­moval of the ex­ec­u­tive for “mal-prac­tice or ne­glect of duty.” Those terms are broad, as is the even­tual Con­sti­tu­tional lan­guage of “Trea­son, Bribery, or other High Crimes and Mis­de­meanors,” and so dif­fi­cult to pin down that Rep. Ger­ald Ford of Michi­gan said dur­ing the de­bate over whether to im­peach Supreme Court Jus­tice Wil­liam O. Dou­glas, largely for po­lit­i­cal and per­sonal rea­sons grow­ing out of his four mar­riages, that “an im­peach­able of­fence is what­ever a ma­jor­ity of the House of Rep­re­sen­ta­tives con­sid­ers it to be at a given mo­ment in his­tory.” Mr. Ford, then the mi­nor­ity leader of the House, had no rea­son in 1970, two years be­fore the Water­gate break-in, to fore­see that his re­marks would echo through the cham­bers of the Ju­di­ciary Com­mit­tee that ini­ti­ated an im­peach­ment pro­ceed­ing against Pres­i­dent Nixon – an ac­tion that would cat­a­pult Mr. Ford him­self into the White House.

But the re­marks by Mr. Ford – who, in one of the ironies of Amer­i­can politics, rep­re­sented the very same Grand Rapids, Mich., district now served by Mr. Amash, the GOP law­maker who raised the spec­tre of a Trump im­peach­ment – are a re­minder that im­peach­ment is as much a po­lit­i­cal process as it is a le­gal un­der­tak­ing. It is pos­si­ble that the im­peach­ment of Mr. Nixon, the first pres­i­dent in 120 years to face a Congress where both cham­bers were con­trolled by the op­po­si­tion party, might well not have ad­vanced had Repub­li­cans held power in the House.

That is a cen­tral el­e­ment in the po­lit­i­cal cal­cu­lus af­fect­ing Mr. Trump. Although he has few his­tor­i­cal or per­sonal ties to the Repub­li­can Party, he was the GOP’s pres­i­den­tial nom­i­nee in 2016, and the Repub­li­cans hold a large (241-194) ad­van­tage in the House. The mar­gin is smaller in the Se­nate (52-48 – if one counts the two In­de­pen­dents as Democrats; they most of­ten vote that way). But the two-thirds re­quire­ment for Se­nate con­vic­tion, and thus for the re­moval of the Pres­i­dent, puts the tar­get at 67 votes – a high bar that, today at least, seems out of reach.

The party pro­files, and thus the chances for im­peach­ing Mr. Trump and re­mov­ing him from of­fice, would shift dra­mat­i­cally if the Democrats were to take power in the House fol­low­ing next year’s midterm con­gres­sional elec­tions. That would re­quire a Demo­cratic pickup of 24 seats, a for­mi­da­ble swing in voter be­hav­iours given the un­usual ide­o­log­i­cal pu­rity of some cur­rent con­gres­sional districts. But it is not out of the ques­tion; Barack Obama’s Democrats lost 63 seats in the 2010 midterm con­gres­sional elec­tions, when his ap­proval ratings were in the gen­eral range of Mr. Trump’s today.

More than four decades ago, the House Ju­di­ciary Com­mit­tee, which even­tu­ally would ap­prove ar­ti­cles of im­peach­ment against Mr. Nixon, warned against broad ap­pli­ca­tion of con­gres­sional im­peach­ment author­ity even as it as­serted the right of law­mak­ers to pro­ceed with ac­tions that could lead to the re­moval of the pres­i­dent. “The elec­tive char­ac­ter and po­lit­i­cal role of a Pres­i­dent make it dif­fi­cult to de­fine faith­ful ex­er­cise of his pow­ers in the ab­stract,” the com­mit­tee’s re­port said. “A Pres­i­dent must make pol­icy and ex­er­cise dis­cre­tion. This dis­cre­tion nec­es­sar­ily is broad, es­pe­cially in emer­gency sit­u­a­tions, but the con­sti­tu­tional du­ties of a Pres­i­dent im­pose lim­i­ta­tions on its ex­er­cise.”

The con­text of the de­bate over im­peach­ment in the Con­sti­tu­tional Con­ven­tion is vi­tal to un­der­stand­ing the ori­gins of this el­e­ment of the Amer­i­can gov­ern­ment.

The del­e­gates met be­tween May and Septem­ber of 1787 in the very build­ing in Philadel­phia where, only 11 years ear­lier, the Sec­ond Con­ti­nen­tal Congress ap­proved the Dec­la­ra­tion of In­de­pen­dence. Both the Dec­la­ra­tion of In­de­pen­dence and the Con­sti­tu­tion were writ­ten as an­ti­dotes to the rule of King Ge­orge III, the goal be­ing to limit the power of any fu­ture sin­gle ruler. “The Rev­o­lu­tion had been fought against the tyranny of a king and his coun­cil,” the Ju­di­ciary Com­mit­tee re­port em­pha­sized, “and the framers sought to build in safe­guards against ex­ec­u­tive abuse and usurpa­tion of power.” The Framers were con­cerned, how­ever, that, just as ex­ec­u­tive power could be abused, im­peach­ment, too, could be abused.

Some del­e­gates be­lieved that pe­ri­odic elec­tions them­selves were suf­fi­cient guards against tyranny; they had not yet fixed the length of the ex­ec­u­tive term at four years, and the two-term limit for pres­i­dents wasn’t rat­i­fied un­til 1951, af­ter Franklin Roo­sevelt’s four elec­tion vic­to­ries from 1932 to 1944. But in the only for­mal test of im­peach­ment in the fi­nal ver­sion of the Con­sti­tu­tion, the pro­vi­sion passed with only two states dis­sent­ing.

In The Fed­er­al­ist Pa­pers, the ef­fort by lead­ing Amer­i­can states­men of the day to ex­plain the Con­sti­tu­tion, Alexan­der Hamil­ton wrote that im­peach­ment was adopted, for the new form of gov­ern­ment, to be a bul­wark against what he called the “mis­con­duct of pub­lic men, or in other words from the abuse or vi­o­la­tion of some pub­lic trust.”

The phrase “vi­o­la­tion of some pub­lic trust’’ is at the heart of the ar­gu­ment be­ing mus­tered by Mr. Trump’s op­po­nents as they wish for im­peach­ment pro­ceed­ings to be­gin. Their hope was stoked mid­week when Mr. Mueller was ap­pointed spe­cial coun­sel.

“We’re in a sit­u­a­tion where im­peach­ment is men­tioned quite a bit by peo­ple who think the Pres­i­dent has gone be­yond merely propos­ing and en­act­ing pol­icy that is deeply flawed,” said Mr. Bene­dict, the author­ity on the im­peach­ment of An­drew John­son. “I’m an aca­demic, not a politi­cian, but I still think im­peach­ment is the nu­clear bomb of Amer­i­can con­sti­tu­tional politics.”

Just as knowl­edge­able base­ball fans know not to men­tion that a no-hit­ter is in progress lest the feat be dis­rupted, po­lit­i­cal fig­ures know not to men­tion im­peach­ment lest the fu­ries be un­leashed.

David Shrib­man is ex­ec­u­tive edi­tor of the Pitts­burgh Post-Gazette and a for­mer cam­paign re­porter for The New York Times and The Wall Street Jour­nal.

Pres­i­dent Trump awaits the ar­rival of Colom­bian Pres­i­dent Juan Manuel San­tos at the White House this week: The phrase ‘vi­o­la­tion of some pub­lic trust’ is at the heart of the ar­gu­ment be­ing mus­tered by Mr. Trump’s op­po­nents as they wish for im­peach­ment pro­ceed­ings to be­gin. CHIP SOMODEVILLA/GETTY IM­AGES

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