Some Americans (and Canadians, as interested observers) are talking longingly about impeaching the president of the United States, but very few, even among the Americans, understand the process and the criteria. To listen to liberal progressive media coming from the United States, even right wing commentators like David Frum, one hears the steady rise in sonorous background thunder as the storm looms closer for The Donald.
The most recent “Real Time with Bill Maher” was perhaps the most frightening when one listens to the rising fear and anxiety of the panellists about the degradation of the world’s most famous democracy.
We, in Canada, are perplexed, and concerned. One of our own, David Frum, has raised the alarm with his book, Trumpocracy (reviewed elsewhere on the blog). And Robin Williams famously quipped a prescient simile, “Canada is like the cozy little apartment sitting above a meth lab,” well before Trump was Trump. Years ago, Tom Lehrer wrote his satirical and not so funny song, “We Shall All Go Together When We Go,” in reference to nuclear annihilation. “Every Hottentot and every Eskimo” (a no longer politically correct appellation for Canadian aboriginal). So Canadians are justifiably threatened by Trump, not just by his tariffs.
But will the destruction of modern democracy be with a bang or a whimper? The latter, I suspect, if heads full of straw prevail.
With this in mind, truly in the forefront of many minds, thoughts turn to impeachment. Twice in my lifetime, watching from above (the north), this spectre has been raised, with Nixon who resigned before it occurred, and Clinton who escaped by politics, perhaps due to a lack of modern appreciation of dominance hierarchy in employment situations (Monica was his intern, for God’s sake, something even Bill seems still not to appreciate).
But what is impeachment, and what is it not?
Recently, October 2017, Sam Harris interviewed Cass R. Sunstein , the Robert Walmsley University Professor at Harvard Law School, author of Impeachment: A Citizen’s Guide. [Worked in White House for Obama. Group on Surveillance and National Security, Defence Innovation Board.]
Professor Sunstein has researched the impeachment process and gives a very pithy review of the law and purpose, an explanation all Americans, and a lot of observers, should absorb. Several points are worth summarizing.
Abuse of Power
Impeachment is used for egregious abuse of power, presidential power, not just because the president may be a jerk. Character will not suffice. Being a boorish pig, a misogynist and racist, will not suffice. The key to impeachment is the abuse of the power of the presidency. You may not like him, tough. You can’t impeach him because you don’t like him…he’d be gone by now, were it so.
Real Crimes May Not Be Impeachable
As in the first criteria, jay walking, shoplifting, tax evasion, may not be enough to warrant the initiation of impeachment processes, because anybody can do this stuff. Indictment for these crimes can wait. Impeachment does not apply. But shooting James Comey, a suggestion made by Trump’s lawyer as something for which Trump could not be indicted, would almost certainly result in impeachment, followed in seconds by indictment…so it’s a bit silly.
Nope. Not impeachable. You should have known this when you elected him. ‘W’ was no bright light (though he is looking good now, isn’t he?) but never impeachable. You can’t impeach Trump just because he doesn’t know the difference between a Canadian and a Brit. Or why Russia is no longer welcome in the G7 (well, G6 + 1).
Display of Lunacy
While not impeachable, this is subject to the 25th Amendment, quite possibly under too much partisan control to do much good until it is virtually death or hospitalization in an asylum. But even pseudo-death is not impeachable. When Woodrow Wilson had his stroke and his wife took over, few knew. When Reagan became increasingly demented, few cared. When John Cleaves Symmes Jr. (a distant relative of the author) posited that all planets, including Earth, were hollow, and proposed an expedition to the North Pole to find the ‘North Pole Shaft’, he was supported in this activity by President John Quincy Adams, demonstrating that politicians then were just as nutty as they are today. Nobody impeached Adams.
And yet other noncriminal actions are impeachable.
Just not doing your job is impeachable. Shuffling off to play golf too much, watching TV all day, failing to undertake important activities, such as daily security briefings and skipping out on G6+1 meetings. Well, not sure about the last two…
What Crimes are Impeachable
The core criteria are based on the idea of wielding power like a king, or a dictator. Anything which looks like a monarch, for example…no going back to King George III, even if his excuse might be porphyria. Abuse of the pardon process, clearly a presidential prerogative, rises to an impeachable level of sin. Disturbing investigative processes or manipulating personnel to effect a dishonest but favorable outcome in evaluation, by hiring and firing key people, would be another. Involving other countries (enemies essentially) in the disruption of democracy, to enable your own election is yet another.
All are grist for the mill because they involve the misuse and misdirection of incredible power…like a king.
Process of Impeachment
The issue is first taken to the House of Representatives, where a 50% + 1 vote after suitable wrangling and discussion, can send the president to impeachment. Then the Senate decides by 2/3 majority vote, whereupon, if guilty, the president is removed from office. Following removal from office, the Senate may decide further to prevent further holding federal office, and whether emoluments may accrue, such as pension.
What of Trump?
Abuse of pardon, clearly a power which only the president enjoys, has not been highlighted as a problem to be resolved by impeachment of Trump to date, but it is getting close. It should be. Yes, Trump could pardon himself, he has the power. He claimed it only yesterday. And yes, he may not have considered it, but the House could then vote to impeach him, and almost certainly would. Immediately.
Pardoning Arpaio seemed to me to be pushing the limit, given the nature, and recency, of Arpaio’s crimes, and the appearance of ‘quid pro quo’, since Arpaio was one of the first to endorse Donald Trump during his campaign. Certainly this sent a signal to others helping Trump…the purpose of serving justice appears to be secondary to the purpose of serving Trump.
Now, the spectre of pardons handed out to any and everybody in recognition of loyalty to the president could run the risk of being viewed as abuse of power. How better to encourage criminal loyalty than by pardoning perps against possible subsequent incarceration? Is Trump doing this? How can we know?
Paul Manafort is looking at life in prison. He better be hoping Trump will pardon him, or rely on Mueller to do something gentler than incarceration. Is the spate of pardons suddenly enjoyed by the president a message? But if Trump does this, would the country view this as kingly abuse?
Obstruction of justice can lead to impeachment, particularly when conducted using the power of the presidency. Here we see the efforts of Trump to prevent investigation into his alleged collusion with Russia possibly to obtain illegally stolen information on Hillary. Might this be granted by Putin in return for reductions of Obama-imposed sanctions, or other favours? Is this all an effort to prevent the airing of a ‘Golden Showers’ tape, as Linda Javez on Bill Maher’s Real Time claimed the other night, for example? Investigations into the meetings with Russians are being opposed by Trump (he calls it a witch hunt) by his allegedly demanding (though not receiving) loyalty from his employees (such as Comey), or openly claiming he would never have hired someone who, like Sessions, would not ‘protect him’ or ‘have his back’; perhaps even the diversions such as accusing others of similar crimes (wire-tapping and spying by Obama, collusion by Clinton), could be viewed as attempts at obstruction by diverting FBI or Department of Justice efforts; but this would be hard to prove.
Trump’s obvious reluctance to implement sanctions against Russia, the desire to curry favour from Russia (inviting them back into the G6+1), the disregard for the serious cyber-attack by Russia against the US democratic process (which may well have helped Trump into office, and may well help him again), the efforts to hide the truth by allegedly lying about subsequent actions taken (such as dictating that letter for Don Jr.), or by degrading his own institutions of intelligence gathering…these all have by some been alleged to represent attempts to obstruct the investigation into collusion with Russia in return for diplomatic favors. As Trump says, we’ll see.
Another potential abuse of presidential power might be the use of the presidency to advance his own greed through his power as president to negotiate favourable business relationships for his or his family’s businesses. Consider the putative Argentinian deal reported by David Frum in ‘Trumpocracy’:
“On November 14, 2016, Trump spoke for fifteen minutes to the president of Argentina, Mauricio Macri. According to reports in the Argentine media, Trump mentioned that a Trump-licensed building in Buenos Aires was stalled in the permitting process. The next day, Trump’s local partners triumphantly announced that the building was moving forward. It would later emerge that not only had Trump’s daughter Ivanka joined the call, but that Trump’s son Eric had arranged it, at the request of Trump’s lead partner in the Buenos Aires deal.”
Is this abuse of presidential power? Who knows? Perhaps the Senate will know!
Impeachment is Political
The House of Representatives can vote to impeach. The Senate can then find him guilty by a vote of 2/3. The courts, including the Supreme Court, do not have much input, apart from the leadership of the Chief Justice during the Senate presidential impeachment hearings.
The president can be indicted for any crimes once impeached and removed from office. It is open to discussion whether the sitting president can be indicted, but once his term is over, he certainly can be, provided the statute of limitations allows.
Americans seem increasingly worried about the state and viability of their democracy, and observers, such as Canadians, are almost equally worried. Some think the state of affairs has gone so far now that recovery in the eyes of the world may only be achieved by removal of Trump from office. But it seems he cannot be removed for his misogynistic behaviour (barring supportable accusations of sexual assault), his objectification of women (invasion of privacy at his beauty pageants, labels of aesthetic classification (“She’s not a ten”), and greaby behaviour with his daughter), let alone his locker room talk.
He cannot be impeached for his lies, except as they advance other sins such as obstruction of justice. He cannot be impeached for his malignant narcissism, his stupidity, or his brash braggadocio. He cannot even be impeached for his foreign policy of favouring despots (Putin, Kim, Duterte, Erdogan) and snubbing allies (Trudeau, Macron, May, Merkel), unless it were to translate into some ‘quid pro quo’ for his business, his family or his election.
But when he IS impeached…when it does occur…it is a couple of voting sessions! Not a court with rules of evidence, per se. Not a jury pondering all the evidence. It’s a consensus by the House, a campaign rally by the Senate. Once he is impeached for the right thing, he could be out on his butt in a heartbeat. He might be crying foul, he would almost certainly be blaming Obama, he might be asking why Hillary didn’t suffer this disgrace (and someone would dutifully remind him that she didn’t win the presidential election)…but he would be out.
And maybe democracy will be saved.