What is impeachment, and will Congress impeach Trump?

To the Teacher:
 

Since taking office, President Donald Trump and his associates have been the subject of a Department of Justice investigation that has touched on the violation of campaign finance laws, the paying of hush money, and even the possibility of collusion with foreign governments to influence the 2016 elections.

These investigations have recently resulted in the conviction or guilty plea on corruption charges of a number of individuals who had been in the president’s inner circle. All this has raised the question of presidential impeachment for the first time in a generation. Should the Democrats take over the House of Representatives in the November 2018 midterm elections, it is conceivable that impeachment could be on the table. This possibility promises to be a hot political issue for the remainder of Trump’s presidency.

This lesson consists of two readings. The first introduces students to the basics of presidential impeachment—its foundation in constitutional principles, the process by which it is carried out, and the few instances in American history in which articles of impeachment have actually been brought against a president. The second reading will summarize the state of the Trump investigation, the factors that weigh on the possibility of impeachment taking place, and the stakes should that come to pass. After completing the lesson, students should be able to explain what impeachment is, how it works, and have a basic understanding of the ongoing White House controversy.

Reading One: What Is Impeachment?

Since taking office, President Donald Trump and his associates have been the subject of a Department of Justice investigation that has touched on the violation of campaign finance laws, the paying of hush money, and even the possibility of collusion with foreign governments to influence the 2016 elections. These investigations have recently resulted in the conviction or guilty plea on corruption charges of a number of individuals who had been in the president’s inner circle. All this has raised the question of presidential impeachment for the first time in a generation.

Given this context, it is worth exploring what impeachment is and how it works.

Impeachment is the process by which Congress puts public officials, especially the President, on trial, with the possibility of removing them from office. The process of impeachment is outlined in Article II, Section 4 of the U.S. Constitution. It states:

“The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
 

The process of removing a president from office happens in two stages: impeachment and then conviction. The Constitution states that the House of Representatives is responsible for impeachment. If members of the House determine that the president has committed an offense that meets the standards laid out in the Constitution, they can draft and vote on “Articles of Impeachment” which detail the relevant charges. If these pass, the Senate is subsequently responsible for determining whether or not it will convict and remove the President from office. New York Times Washington correspondent Charlie Savage described the process in a May 17, 2017 article:

First, the House of Representatives votes on one or more articles of impeachment. If at least one gets a majority vote, the president is impeached — which essentially means being indicted….

Next, the proceedings move to the Senate, which holds a trial overseen by the chief justice of the Supreme Court.

A team of lawmakers from the House, known as managers, play the role of prosecutors. The president has defense lawyers, and the Senate serves as the jury.

If at least two-thirds of the senators find the President guilty, he is removed, and the vice president takes over as president.

Very few presidents have ever faced impeachment. President Andrew Johnson was impeached in 1868, but was not removed from office. In 1974, President Richard Nixon faced imminent impeachment for ordering a break-in at the Democratic Party offices in the Watergate Hotel. Knowing that he had lost political support and was likely to be removed from office, Nixon resigned before the House of Representatives could vote to impeach him. Finally, in 1998 President Bill Clinton was impeached for lying about his relationship with former White House staffer Monica Lewinsky. However, the required two-thirds majority of the Senate did not vote to remove him from office.

What misdeeds might qualify a president for impeachment? This question has been a matter of debate, especially in recent years. Neil J. Kinkpof, a Professor of Law at Georgia State University College of Law, and Keith E. Whittington, a Professor of Politics at Princeton University, write in an article for the National Constitution Center website that:

Much of the controversy surrounding the Impeachment Clause has revolved around the meaning of “high Crimes and Misdemeanors,” a phrase that is unique to the impeachment context. The Clause seems to rule out the possibility of Congress impeaching and removing officials simply for incompetence or general unfitness for office. Impeachments are not a remedy for government officials who are simply bad at their jobs. It is a remedy for abuses of public office. But the line between general unfitness and abuse of office can be blurry….

Can a government official be impeached and convicted for innocent mistakes, or must they have bad intentions? Is it sufficient to justify an impeachment and conviction if a government official commits acts that are “disgraceful,” contrary to the “trust and duty” of their office, or “degrading to the honor of the United States,” or can impeachment only be justified when an official has committed criminal acts? Do “high crimes” include only criminal offenses for which one could be prosecuted in a court of law, or can they include other forms of misconduct?... Can private misdeeds justify an impeachment, or must the actions in question be connected to the conduct of the office that an individual holds?

While still serving as a member of the House of Representatives, [future President] Gerald Ford once said that impeachable offenses are whatever a majority of the House considered them to be. The burden is on those who want to bring impeachment charges to persuade a majority of the members of the House of Representatives and two-thirds of the members of the Senate that an act is so serious as to justify removing an individual from office. The impeachment power is a tool that most members of Congress are unwilling to use if it can be avoided, but they have also wanted to preserve it as a tool that is flexible enough to be used in any exceptional circumstances that might arise.

The fact that impeachment has not been used very often in U.S. history means that few previous cases exist to establish precedents for how and when impeachment should be used. Because of that, any given impeachment charge against President Trump is likely to be controversial and to highlight political divisions in both houses of Congress and beyond.

For Discussion:
 

1. How much of the material in this reading was new to you, and how much was already familiar? Do you have any questions about what you read?

2. According to the reading, what is impeachment? What is its purpose?

3. How has impeachment been used in the past?

4. There is intense debate about the exact definition of “high crimes and misdemeanors.” How would you define a high crime or misdemeanor? Do you agree with former President Gerald Ford that “impeachable offenses are whatever a majority of the House considered them to be”? If not, what should be the limitations on impeachment?

5. Why might some members of Congress be hesitant to use the power of impeachment, saving it only for truly exceptional circumstances? Do you think that this attitude of restraint is warranted? Why or why not?

Reading Two: Could President Trump Be Impeached?
 

The Department of Justice investigation into Donald Trump’s 2016 presidential campaign has stirred up questions of impeachment. At the same time, many analysts question whether a move to impeach President Trump would result in him being removed from office. Moreover, many politicians are unsure whether a call for impeachment would benefit or hurt either major party.

In May 2017, Deputy Attorney General Rod Rosenstein appointed Robert Mueller, former Director of the FBI, to serve as Special Counsel for a U.S. Department of Justice investigation into Russian interference in the 2016 presidential election. Mueller was also given the power to prosecute any criminal activity that is uncovered in the process of the investigation, even if it is unrelated to Russia. In a May 16, 2018, article, New York Times senior staff editor Mikayla Bouchard summarized the investigation:
 

• Russia carried out a campaign to influence the outcome of the 2016 American presidential election, denigrating Hillary Clinton and boosting Donald J. Trump, according to American intelligence agencies. President Vladimir V. Putin of Russia personally ordered it.
   
• The F.B.I., citing four Trump campaign aides’ ties to Russia, opened a counterintelligence investigation in the summer of 2016 to determine whether Trump associates aided Russia’s election interference.
   
• Robert S. Mueller III, the former F.B.I. director, was appointed the special counsel in May 2017 to take over the investigation. The inquiry has expanded to examine whether President Trump tried to obstruct the investigation itself.
   
• Nineteen people — including four Trump associates — and three companies have been indicted in the case. Five have pleaded guilty; 13 are Russians accused of meddling in the election.
   

In August 2018, former Trump Campaign Chair Paul Manafort was convicted of financial crimes as a result of the Mueller investigation. In September, Manafort agreed that he would cooperate with special counsel Mueller in the continuing probe. Meanwhile, Trump’s personal lawyer and fixer Michael Cohen plead guilty to campaign finance violations and other charges. Subsequently, an August 31, a Washington Post-ABC News poll found that 49% of those surveyed supported the House of Representatives beginning impeachment proceedings against Donald Trump.

But could impeachment actually happen, given present political conditions? Jeffrey Toobin, writing for New Yorker magazine on May 28, 2018, examined this question:

Today, the impeachment of Donald Trump exists on the brink of plausibility. The sine qua non of an impeachment investigation, to say nothing of actual votes to charge and remove the President, is a Democratic takeover of the House in the November elections. Such a change now looks better than possible, maybe even probable.

At the same time, the President appears to be in ever-greater legal peril from dual investigations, one led by Robert Mueller, the special counsel, and the other by federal prosecutors in New York. In April, FBI agents raided the offices of Michael Cohen, Trump’s longtime lawyer and fixer, and removed telephones and business records.... In Washington, Michael Flynn, Trump’s former national-security adviser, and Rick Gates, who worked on Trump’s campaign and in his White House, have both already pleaded guilty to charges brought by Mueller and agreed to cooperate with his investigation. The full extent of Mueller’s findings is not known, raising the possibility that more legal and political damage to the President is yet to come. While Rudolph Giuliani, Trump’s attorney, may or may not be correct that Mueller believes he lacks the legal authority to indict the President, the possibility of impeachment clearly exists—if Congress has the evidence, and the will, to proceed.

It is important to note that, even if Trump were impeached, it is unlikely he would be removed from office. Although the House of Representatives can vote to impeach, two thirds of the Senate must vote in favor of conviction in order to unseat the president, which would require a substantial number of Republican senators to turn against Trump.

Moreover, some Democratic politicians have indicated that they do not want impeachment to be a major issue in the 2018 midterms. Norman Ornstein, a resident scholar at the American Enterprise Institute, was quoted an August 2, 2018 article in The Atlantic explaining:

I can understand the caution that many Democratic leaders feel… It’s the fear that talk of impeachment will motivate tribal Republicans. The normal pattern in a wave election is that the president’s party is demoralized, disillusioned, and depressed, and doesn’t turn out, while the [out of power party] is upset and angry, and does. But remember, we’re now driven by negative partisanship—people motivated more by the desire to keep the evil forces on the other side from destroying our way of life than they are motivated by attachment to their own. So a widespread call for impeachment could ignite a strong reaction from Trump voters to show up and defeat the enemy, even if they’re not so happy with Trump’s bombast, corruption, sellout to Putin, and trade war.
 

In the event that Trump were impeached and the Senate voted to remove him from office, the result would be that Vice President Mike Pence would become president. Given that Pence is himself an ardent conservative, this may not be the result that opponents of Trump are seeking.

For Discussion:
 

1. How much of the material in this reading was new to you, and how much was already familiar? Do you have any questions about what you read?

2. According to the reading, why is it possible that Trump would be impeached?

3. If Trump were impeached, what would it take for him to be removed from office?

4. Do you think it is likely that Trump will be impeached? Why or why not? What kinds of political considerations are influencing the decisions of Congresspeople on whether or not to pursue impeachment?

5. The reading notes that if Trump were removed from office and Vice President Pence took over, this may not be the result that Trump’s opponents want. However, some argue that if Pence became president he would be tainted by scandal and limited in his ability to move forward his agenda. What do you think? Do you find either of these positions convincing?

— Research assistance provided by John Bergen