Not a day passes without fresh speculation about the possible impeachment of Donald Trump. In December, when former US security advisor Michael Flynn agreed to cooperate with investigators, UK bookies put the odds at 50/50 that it would happen within 12 months. Since then, events have only accelerated, including the FBI raid on April 9 of the offices of Michael Cohen, Trump’s personal lawyer.
In fact, the process has already started: on November 15, 2017, six Democrats in the House of Representatives sent Impeachment Articles to the House Judiciary Committee. The articles included obstruction of justice for firing James Comey, the FBI chief who was investigating Russian meddling with the 2016 election. A connection between Trump and this meddling could constitute treason, an impeachable offence specifically mentioned in the US Constitution (Article II, section 4). Next came accusations of accepting domestic and foreign emoluments beyond his designated salary as president. These too are forbidden by the Constitution (Article II, section 1, clause 7; Article I, section 9, clause 8). The six Democrats further said that Trump had undermined the judiciary and undermined freedom of the press, pillars of the Constitution that the president swears to uphold.
The Republican party has called these charges groundless and politically motivated. The House of Representatives and its Judiciary Committee are controlled by Republicans, so the Impeachment Articles generated little beyond Twitter posts. Should the political balance change, more consequential impeachment proceedings will start. The history of impeachment, however, shows that Trump is likely to stay in office.
American impeachment law has its origins in the English Civil War, but not everyone at the 1787 Constitutional Convention thought it should be applied to US presidents. Some felt that the legislative branch’s trying the executive was a breach of the separation of powers. Benjamin Franklin pointed out that if a president could not be removed for his misdeeds while in office, he would have every motivation to remain in office and would do so by any means – including tyranny – and could only be removed by death. The clauses for impeachment of the highest magistrate passed. Provisions of this kind only passed in France in 2014.
In the US Constitution, impeachment and conviction are not the same things. To impeach is to bring charges against a high-office holder. “The House of Representatives… shall have the sole Power of Impeachment,” the Constitution states (Article I, section 2). That means that the charges or articles must be brought in the House and can pass with a simple majority. The trial, however, will take place in the Senate. “When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present” (Article I, section 3). It is thus possible to remove a sitting president from office, but this procedure does not make it easy or likely given the political hold he has on his party. A two-thirds majority in the Senate means that 67 out of the 100 senators must vote in favour of conviction.
To remove presidents, Articles of Impeachment have only been passed through the House of Representatives Judiciary Committee three times in US history and only been passed by the House of Representatives to the Senate for trial twice. For judges and other high officials, impeachment proceedings have been started in the House 62 times and Articles of Impeachment have been approved by the House 19 times, sometimes resulting in conviction and removal of Federal judges, one as recently as 2008, for perjury and bribery.
Andrew Johnson, 1867: survived
In the case of presidents, however, every time political questions of power have been palpably important. A congress dominated by one party has never impeached or convicted a sitting president of its own party – and at the moment both House and Senate are controlled by Republicans. When Richard Nixon, a Republican, resigned, both houses were controlled by Democrats. When Andrew Johnson, a Democrat, came within a vote of conviction, both houses were controlled by Republicans.
Johnson, from a southern slave state, was vice president when Abraham Lincoln, a Republican, was assassinated. Johnson was the first president to face Articles of Impeachment. The accusations against him now seem obscure and even inconsequential compared to what Trump has been accused of. To keep the Radical Republican Edwin Stanton in control of Reconstruction in the South after the Civil War, Congress passed the “Tenure of Office Act,” which required the president to seek the Senate’s advice and consent before removing cabinet and other high government officials. Believing the Tenure of Office Act to be an unconstitutional breach of the separation between executive and legislative powers, Johnson fired Stanton while Congress was out of session on August 5, 1867.
This brought about a face-off with the Republican-dominated Senate. In those post–Civil War days when many of the recently rebellious southern states had no representation in Congress, there were only 54 senators and of those, only 9 were Democrats. After the Senate trial, 35 Republicans voted to convict Johnson. The nine Democrats were joined by 10 Republicans, making 19 votes for acquittal. It would have taken 36 guilty votes to reach the two-thirds majority necessary for conviction. With an overwhelming majority in the Senate, the Republicans were unable to remove Johnson. But again, the charges against him were not of the strong Constitutional nature of those against Trump.
Richard Nixon, 1974: resigned
Richard Nixon’s Impeachment Articles – obstruction of justice, abuse of power and contempt of congress – had all passed, 27 to 11, 28 to 10 and 21 to 17, with Republicans joining Democrats each time in the voting on July 27, 1974. Nixon’s hold even on his own minority Republican party had been weakened by the Watergate scandal and hearings that had played on television throughout 1973. Several related and much-publicised trials and investigations weakened him further since the June 1972 Watergate break-in. The day the impeachment articles passed committee, the House Minority Leader, Republican John Rhodes, estimated that there would be 300 votes for impeachment in the House, far more than the simple majority of 218 needed to send the case to the Senate for trial. The Senate Minority Leader, Republican Hugh Scott, estimated 60 votes in the Senate for conviction, only a little short of the 67 needed. Could Nixon have survived a Senate trial? Probably not.
On July 24 the Supreme Court had ruled that all the White House tapes, not just a selection, had to be released as part of the Watergate investigation. On August 5, 1974, the White House released the “smoking gun” tape of June 23, 1972, recorded shortly after the famous break-in. The tape demonstrated that Nixon had known then of the White House connection to the burglary and had approved of the cover-up. When senior Republican senators Hugh Scott and Barry Goldwater met with Nixon on August 7, just over a week since Scott’s 60-40 vote estimate, they told Nixon he had only 15 votes for acquittal left in the Senate. He needed 34. A majority of 56 Democrats in the Senate could not have convicted Nixon without bipartisan support, but with the serious charges and the years of much-publicised investigation, bipartisan support had lined up against Nixon. He could be convicted as well as impeached.
The case against Bill Clinton didn’t come close to the seriousness of Nixon’s in either the importance of the accusations or the voting. The Senate was divided 45 Democrats to 55 Republicans. No Democrat voted against Clinton, so neither the perjury charge nor the obstruction of justice charge ever came close to the 67 votes needed for conviction. In fact, 10 Republicans joined the Democrats to acquit Clinton of the perjury charge, 55 to 45, and 5 Republicans joined the Democrats to acquit on the obstruction of justice charge. The House of Representative votes that set up the impeachment trial in the Senate look like a purely partisan decision to take advantage of a 221 to 211 Republican advantage in the House, hardly based on the merits of any case that could have been tried.
Donald Trump, 2018?
At the moment Republican Donald Trump enjoys an advantage in the House of Representative: 238 to 193. There are four vacant seats. This is about equivalent to the 241 to 192 advantage Democrats had over Republicans when they sent Impeachment Articles to committee against Richard Nixon. Without a Democratic majority in the House it is inconceivable that such articles will be voted against a Republican president. To apply Donald Trump’s words from another context to this case, he could probably shoot someone on Fifth Avenue and remain in office.
Can this change with the midterm elections in November 2018? There are signs that things are already changing. In special elections, several Democrats have won congressional seats, sometimes in Republican stronghold districts, due to voter unhappiness with Trump and the Republican party. Most recently, Democrat Conor Lamb beat a Republican rival in a Pennsylvania district that Trump carried by 20 percentage points in 2016. Historically, an average of 32 congressional districts flip at midterm elections away from the party of the president. With 193 seats, Democrats only need 25 more to reach 218, one more than half the 435 seats in the House. This year, disgust with Trump and the scandals surrounding his presidency may add to that, and Pennsylvania alone may provide a fourth of those seats because of gerrymandering corrections.
Down to the count
With a majority of one, the Democrats in the House of Representatives can send Impeachment Articles to the United States Senate for trial, and they probably will. Would there be a conviction? The president’s party generally loses 2 Senate seats in a midterm election, and that would not be enough. The Republicans hold a majority of 51 of the 100 Senate seats. There are 47 Democrats and 2 independents. It takes 67 votes, or two thirds of the 100 senators to convict in an impeachment proceeding, and this has never been done. Only in the case of Richard Nixon did that look possible and only after years of public hearings and trials over Watergate. Even then, it was probably the “smoking gun” tape sapping support in Nixon’s own party that caused him to count the votes again a few days after the tape’s release. There were 56 Democrats, 1 independent, 1 conservative and 42 Republicans in the Senate in 1974. Nixon had lost the support of all but 15 senators by August 7. He resigned.
Should the 2018 midterm elections give the Democratic party control of the House of Representatives, Donald Trump is likely to face Impeachment Articles passed on to the Senate. But as embarrassing, awkward and paralysing to the US government as a Senate trial might be, it is highly improbable that those articles will get much further. There is rigid partisan control now, and no hint of the bipartisan support that finally brought down Nixon. And of course, Trump is not sensitive to Constitutional arguments in the same way as Nixon, a lifelong political man. Trump notices all insult and injury, as did Nixon, but insults and injury seem to increase Trump’s belligerent determination, where eventually they undermined Nixon.
Thus, barring a truly dramatic change in events, we are likely to see Trump serve out his first term, which doesn’t end until January 20, 2021.