Can Donald Trump be impeached?

It’s really hard to impeach a president. The founders included the provision, from the very start, as the weakest, “break the glass in case of emergency” mechanism for reining in an out-of-control executive. He was already subject to a four-year term, so he would remain answerable to the people, and to two other branches of government, which could box him in constitutionally. But the founders’ fear of creeping monarchism — the very reason for their revolution — and their deep realism about human nature led them to a provision, rooted in English constitutional precedent, whereby a rogue president could be removed from office by the legislature during his term as well. At the same time, it’s clear they also wanted a strong executive, not serving at the whim of Congress, or subject, like a prime minister, to a parliamentary vote of “no confidence.”

And so the impeachment power was both strong and weak. They amounted to one core idea: If the president was to start acting like a king, he could be dispatched.

But if he was to start acting like an idiot, he could not be impeached. If he was psychologically disturbed but not mentally incapacitated, ditto. If he pursued ruinous policies, or faced enormous unpopularity, or said unspeakably reckless things, he could not be. If he committed a whole slew of crimes in his personal capacity, he’d be answerable to public opinion and regular justice, but not subject to losing his job. If his judgement was unstable, his personal behaviour appalling or if he were to make the US a laughingstock, the impeachment provision did not apply. And even then, the bar for impeachment was very high, as Cass R Sunstein’s elegant new monograph, “Impeachment: A Citizen’s Guide,” explains: Both House and Senate would have to be involved and in favour; and conviction would require a two-thirds majority in the Senate, ensuring that a clear national consensus was necessary.

This is why in well over two centuries the impeachment power has been invoked against sitting presidents only four times, and never actually pursued to conviction. The attempted impeachment of John Tyler in 1842 was rightly rejected by the House of Representatives by a margin of 127-83 (he was guilty of innovating the use of the veto on policy grounds alone), and the impeachment of Andrew Johnson in 1868 (on the preposterous grounds that he had no right to appoint his own secretary of war) was turned back by a single vote in the Senate. The impeachment of William Jefferson Clinton in 1998 because of a civil sexual harassment suit squeaked through the House on partisan lines, 221-212, but failed in the Senate, with conviction on the least ludicrous obstruction of justice charge reaching only 50 votes out of a needed 67.

Richard Nixon resigned before a vote in the full House could be taken. Sunstein assesses his articles of impeachment thus: Not impeachable for evading taxes (too personal a crime); probably impeachable for resisting a congressional subpoena (but a president could potentially make a legitimate, if dubious, claim about executive privilege); definitely impeachable for covering up an impeachable offense (abusing the powers of the FBI, the CIA and the Department of Justice to conceal evidence of an attempt to subvert an election by burglarising the Democratic National Committee).

Where does this leave us with respect to Donald Trump? Sunstein smartly doesn’t answer the question directly — instead teasing out various hypotheticals with some similarities to our current concerns.

With Trump, these analogies are tantalisingly close but probably not close enough. What about passively cooperating with a foreign power to subvert an American election and then, after clear proof of such interference, refusing to counter that foreign power’s intent to disrupt the next election too? The trouble here is that we have, so far, no proof of anything but a willingness to collude with a foreign power’s interference; and no clear evidence at all of the president’s personal involvement with foreign actors.

What makes Trump immune is that he is not a president within the context of a healthy republican government. He is a cult leader of a movement that has taken over a political party — and he specifically campaigned on a platform of one-man rule. This fact permeates “Can It Happen Here? Authoritarianism in America,” a collection of essays by a number of writers that has been edited by Sunstein, which concludes, if you read between the lines, that “it” already has.

I don’t think Trump has a conscious intent to vandalise liberal democracy — he doesn’t even understand what it is. His compulsive insecurity requires him to use his office to attack, and weaken every democratic institution that may occasionally operate outside his own delusional narcissism. He cannot help this. His tweets are a function of spasms, not plots. But the wreckage after only one year is extraordinary. The Democrats find themselves in opposition a little like Marco Rubo in the primaries. Take the high road and you are irrelevant; take the low road and you cannot compete with the biggest bully and liar on the block. The result is that an unimpeachable president is slowly constructing the kind of authoritarian state that US was actually founded to overthrow.

© 2018 The New York Times News Service

IMPEACHMENT

A Citizen’s Guide Cass R Sunstein Harvard University 199 pages; $7.95

CAN IT HAPPEN HERE?

Authoritarianism in America Edited by Cass R Sunstein Dey St/Morrow Paper

481 pages; $17.99