Why Impeachment Isn’t the Solution

The guilty plea of Donald Trump’s long-time personal lawyer and fixer, Michael Cohen, and the criminal conviction of his former campaign chairman, Paul Manafort, have reignited talk of impeachment. But despite new evidence that the President likely committed a felony when he approved the payment of hush money to his mistresses, impeachment followed by conviction still remains a remote possibility.

My views are shaped in no small part by the impeachment of President Bill Clinton. I was working across the street at the time of the impeachment hearings—as a law clerk for Justice Sandra Day O’Connor. Chief Justice William Rehnquist presided over the hearings in the Senate, and he shared a number of tickets with the law clerks. We each had a chance to attend the proceedings for a few hours. As I watched from the gallery, I concluded that the process was fundamentally political. Yes, there is a serious legal process, and legal rules frame the impeachment and trial from beginning to end, but the House is no ordinary grand jury and the Senate is no ordinary court.

Impeachment: A Primer

Let’s begin with a basic primer. The process of removing a president is set in motion when a majority of the House votes to issue articles of impeachment. Although many talk about impeachment as if it were the end of the process, it is only the beginning. It is similar to indictment in an ordinary criminal trial.

The U.S. Constitution (Article II, Section 4) states that the president “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” What are high crimes and misdemeanors?  There was not much discussion of the matter at the Constitutional Convention, and we have had little experience with impeachment since then to work out the answer.

The best legal view is that impeachment is available for serious abuses of official authority. Purely personal crimes would therefore not count (hence the Clinton impeachment was arguably illegitimate from the start). And offenses need not be indictable crimes to be impeachable: “High misdemeanors” can encompass a range of bad conduct that might not even be criminal. James Madison, for example, specifically raised abuse of a president’s pardon power as one of the purposes of impeachment. And one of the key reasons the Framers included an impeachment power in the Constitution in the first place was to address a situation in which a president might seek to obtain office through corrupt means.

Once the House impeaches a president, the matter shifts to the Senate, with the Chief Justice of the U.S. Supreme Court presiding. Conviction requires a two-thirds vote against the president. It is difficult to over-emphasize how difficult getting a vote of two-thirds in the Senate is, especially against a Republican president. That is because, mathematically, Senators representing under 8 percent of the population can prevent conviction. (I get this figure by calculating the percentage of the 2017 U.S. population made up by the 17 least populous states, as it takes 34 Senators to prevent conviction.) The vast majority of the least populous states have supported Republican candidates in presidential elections (including Trump) and are represented by Republican Senators.

The Framers made impeachment difficult on purpose—though they could not have anticipated our deeply malapportioned, directly-elected Senate, which makes impeachment even harder. They made impeachment difficult for two key reasons. First, they regarded the requirement that the president stand for election every four years as the most significant check on his abuse of power. Impeachment, therefore, was only necessary for the worst situations, when the country could not stand to wait a few years. Of course, at the time, the president did not have the capacity to launch a nuclear war.

Second, the Framers knew the process would be political, and they didn’t want to place the president at the mercy of the Congress. They also recognized that it would be damaging to make it easy for political actors in Congress to overturn presidential election results they did not like. Doing so would eliminate the separation of powers, turning the presidential system into a parliamentary one, in which Congress could effectively issue a vote of no confidence and remove the president from office.

In brief, conviction is extremely difficult, and intentionally so.  This is why only two presidents have been impeached and not one convicted.

For a longer, but still short, primer on impeachment, I recommend Cass Sunstein’s Impeachment: A Citizen’s Guide.  It is characteristically thoughtful. For a more detailed introduction, see Larry Tribe’s and Joshua Matz’s To End a Presidency: The Power of Impeachment. Also of interest is Chief Justice Rehnquist’s book, Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson.

Trump’s Prospects

With this background in mind, it is clear why, even if President Trump committed a high crime or misdemeanor, he is unlikely to be impeached and convicted.

To begin with, nothing will happen before the midterms, as the Republicans control the House and have shown no interest in initiating impeachment. If the House switches to the Democrats this fall, the prospects for impeachment grow considerably.

But even if control of the Senate also switches to the Democrats — which most political observers think is unlikely — the two-thirds bar for conviction is still a nearly impossible one to meet. Large numbers of Republican Senators would have to be brought over to support conviction. That’s a difficult task in a party whose voters still support the President.  An August 17 PRRI poll shows that although only 38 percent of Americans as a whole report a favorable view of Trump, a whopping 79 percent of Republicans do. It is always possible that this support could erode, leaving Republican members of Congress freer to support impeachment and conviction.  But if his support stands at 79 percent under recent circumstances, it’s hard to know what Trump would have to do to lose majority support of his party’s electorate. Moreover, the more Trump’s support falls, the less enthusiastic Democrats might be about replacing him with a largely unsullied President Mike Pence.

That’s not all there is to say, of course.  President Richard Nixon was never impeached or convicted, but the prospect of impeachment and conviction nonetheless undoubtedly influenced his decision to resign. Could the same happen here?

Perhaps, but remember that Democrats had a strong majority in the Senate at the time Nixon faced the possibility of impeachment and conviction. They needed to bring over fewer Republicans in order to convict the President, which Nixon knew. Republicans were also much more moderate overall then. And Nixon, for all his faults, also cared more about the institutions of American democracy than Trump appears to.

Some have speculated that President Trump may be persuaded to resign by the promise of a pardon for himself and his family. American Prospect Co-Founder Robert Kuttner, for example, predicts, “Leaders will broker a deal in which Trump resigns in exchange for himself and members of his family being spared criminal conviction. Trump will take the deal.”

If Trump’s presidency is going to come to a close before the end of his term, that’s probably the most likely path. But there are two reasons to think this won’t work.

First, Trump has not generally been one to back down from a fight. It’s hard to see the reality TV president giving up on generating the greatest spectacle the political world has seen in decades.

Second, and more important, a pardon probably will not solve President Trump’s problems. As I noted in as an Aug. 22 article for Just Security, state Attorneys General can criminally prosecute the president (and members of his inner circle). A presidential pardon applies only to federal cases, so it does not have the power to stop those proceedings. As I explained, it remains unsettled whether a criminal suit can proceed against a president while he is in office. But if Trump resigned, he would remove any impediment that might exist to state cases moving forward.

If Trump thinks impeachment and conviction are likely, then Jack Goldsmith’s prediction that the President might employ some “nuclear” combination of pardons, firings, and yankings of security clearances strikes me as (unfortunately) more likely than Kuttner’s. Trump is more likely to burn U.S. political institutions to the ground to try to protect himself than to quietly resign.

In short, the breathless talk about impeachment is unlikely to lead to President Trump’s removal from office (though fear of it might lead the President to take drastic measures). To get President Trump out of office, we are likely going to have to rely on Americans to go to the polls.

 

Photo credit: Two tickets dated January 15, 1999, for President Bill Clinton’s impeachment trial. The tickets were presented to Mr. and Mrs. Gerald R. Ford – Gerald R. Ford Presidential Museum. 

About the Author(s)

Oona Hathaway

Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School and Director of the Center for Global Legal Challenges at Yale Law School Follow her on Twitter (@oonahathaway).