“An impeachable offense is whatever a majority of the House of Representatives considers to be at a given moment in history.” – House Republican Leader Jerry Ford when Republicans were trying to impeach liberal Supreme Court justices in the late 1960s and early 1970s.
In September, House Speaker Nancy Pelosi announced that the House of Representatives was officially opening an impeachment “inquiry” of President Trump, marking only the fourth time in American history that this process has gone forward for a president. The first three times were Andrew Johnson during the Civil War Era, Richard Nixon during the Watergate scandal of the 1970s and Bill Clinton for lying over his affair with Monica Lewinsky in the late 1990s. A simple majority of the House is required to officially “impeach” any federal officeholder, the presidential equivalent of a criminal indictment. The hearings will receive evidence whether Trump’s alleged misdeeds require his removal from office and with Chief Justice John Roberts presiding, the Senate will decide Trump’s fate. What follows is an estimation of Trump’s chances to remain in office and any possible political fallout from the process. The Democratic House almost guarantees Trump’s impeachment, but the Republican Senate will likely save him. As for the politics, like almost everything today, it is likely to be viewed through a strongly partisan lens: the first wave of polls show the public to be sharply divided on this subject.
The Founding Fathers were well aware of humankind’s capacity for dishonesty, so they gave Congress the authority to investigate and, if necessary, remove any officer of the executive branch or any federal judge. (Congress also has the authority to expel any member deemed to have violated criminal laws via a two-thirds vote; the last two times that happened were when Philadelphia Democratic Rep. Ozzie Myers was expelled on a unanimous vote in 1980 during the “Ab-Scam” scandal and Ohio Democrat James Traficant was expelled in 2002 with only one negative vote after being convicted of bribery charges).
Article I of the Constitution reads: “The House of Representatives shall have the sole power of Impeachment … The Senate shall have the sole power to try all Impeachments … And no person shall be convicted without the concurrence of two thirds of the members present. Article II adds: “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.”
Cases of treason and bribery are usually clear, but neither the Supreme Court nor Congress has ever defined “high crimes and misdemeanors.” During the late 1960s and early 1970s, some conservatives tried to impeach liberal justices of the Supreme Court. Gerald Ford, then the House Republican leader, delivered the above definition of an “impeachable offense,” which later caused him to wince when Democrats were impeaching Republican President Richard Nixon in 1973-74. Yet, he had a point: the Republican House eagerly impeached Bill Clinton in 1998 for lying about an affair he had with White House intern Monica Lewinsky. Standards for impeachment have always been vague.
Impeachment seems certain
The House would have to pass articles of impeachment with at least 218 votes. That’s easy to predict: Democrats have 234 members. Most detest Trump and will support sending him to the Senate for trial. Besides recognizing the possible fallibility of officeholders, the Founding Fathers also recognized our potential for excessive partisanship; that’s why a two-thirds vote is required for conviction. Since we have a Democratic majority in the House and a Republican majority in the Senate strongly controlled by Majority Leader Mitch McConnell, any impeachment process that ends with Trump’s removal would have to be bipartisan. Republicans have 53 senators. So, at least 20 Republicans would have to break ranks and vote to remove the president. Since Trump still has 80% to 90% approval ratings among the Republican rank-and-file, it would be extremely difficult for many Republicans senators to vote for conviction. Unless they represented a heavily Democratic state (and few do), they would be begging to be taken out by the Trump Republicans in the next primary.
Former Arizona Sen. Jeff Flake and former Reagan speechwriter Peggy Noonan are on record saying that with a secret ballot, 30 Republican senators would vote to remove Trump. But Senate rules require a public trial and public vote. Furthermore, McConnell has already openly stated that, “Impeachment stops with me,” meaning he will exert maximum pressure to save Trump.
The Quinnipiac University Poll, which has had a pretty accurate record in this century, found that 66% of voters thought Trump’s asking a foreign leader to investigate a rival was “not acceptable,” but only 44% in that same poll felt it warranted his removal. (While 51% said the process was legitimate, 43% called it “a partisan witch hunt.”) Unless further investigation delivers a “smoking gun” that the president broke the law, he can likely survive. (Democrats and many anti-Trumpers believe that the testimony of former U.S. Ambassador to Ukraine William Taylor that the president deliberately withheld aid to Ukraine in exchange for their help in targeting Joe Biden is that “smoking gun.”) A Republican insider told the Drudge Report that there is a 20% chance that Trump will be forced out and 4-to-1 odds in his favor sound about right.
However, we live in volatile times, so it is possible that Trump’s support among Senate Republicans could fade. Right now, the three Republican senators weakest in their support for the president are Susan Collins of Maine, Lisa Murkowski of Alaska and Mitt Romney of Utah. The two key groups of Republican senators to watch are those who are retiring, like Lamar Alexander of Tennessee or Pat Roberts of Kansas (and are theoretically free to “vote their consciences”) and the younger Republicans – Marco Rubio of Florida, Ted Cruz of Texas and Josh Hawley of Missouri, who have presidential ambitions. If the presidential aspirants decide that the Republican base is OK with voting to remove Trump, he is almost certainly finished. But we don’t appear to be at that stage yet.
Johnson, Nixon and Clinton
The impeachment process is also a political drama. And here is where the effects will likely be greatest. The three previous cases of presidential impeachment all had “huge” political impact. These were bitter, some say tragic, experiences in our history.
In 1864, Tennessee Democratic Sen. Andrew Johnson, the only Southern Democratic senator who had stayed loyal to the Union during the Civil War, was put on a “national unity” ticket with Republican President Abraham Lincoln. In 1865, Johnson assumed the presidency upon Lincoln’s assassination. He quickly got into disputes with the “Radical” faction of Republicans who wanted strict rules to regulate the defeated Southern States. Johnson strongly opposed what he called “punitive” measures against the South. When Johnson fired Secretary of War Edwin Stanton, a Republican favorite, the Radicals quickly impeached him in what was really a furious argument about how the South should be “reconstructed.”
Johnson’s Senate trial was a cliffhanger: he survived being removed by just one vote. Kansas Republican Sen. Edmund Ross came out of the Radical faction, but dramatically voted no at the last minute, saying that “I looked down into my open grave …” (Ross quickly lost his Senate seat). He later wrote:
“In a large sense, the independence of the executive office as a coordinate branch was on trial … If the President must step down … upon insufficient proofs and from partisan considerations, the office would be degraded.”
Another Republican senator who voted to acquit Johnson, William Fessenden of Maine, opined early that “the whole thing is a mere madness.” Johnson declined to run for re-election, and Gen. Ulysses S. Grant, the great Civil War hero, was easily elected in 1868.
As California Republican analyst Tony Quinn observed, the Johnson impeachment left such a sour taste that it was over a century before Congress considered it again.
In June of 1972, five men were arrested breaking into the Democratic National Committee in the Watergate Complex. Nixon’s press secretary dismissed it as a “third-rate burglary,” but evidence quickly appeared that the men were on the president’s political payroll.
A Senate committee, chaired by the crusty but charming Sam Ervin of North Carolina, gathered key evidence of White House involvement and the House began official impeachment hearings. After tapes emerged recording that Nixon had approved a cover-up of the break-in, a delegation of Republican “elder statesman” met with the president to tell him that he would likely lose a Senate vote. Nixon announced his resignation a few days later. The political impact was immediate: the Democrats scored huge gains in 1974 and the “outsider” Jimmy Carter was elected president in 1976.
In January 1998, news broke that Clinton had an affair with a White House intern. Led by House Speaker Newt Gingrich, Republicans impeached Clinton on a party-line vote for lying about his affair (“perjury”) and trying to cover it up (“obstructing justice”). Many doubted that a consenting affair between adults was a “high crime.” On “Saturday Night Live,” Colin Quinn wisecracked, “This is the biggest over-reaction since Joe Pesci shot Spider in Goodfellas!” Enough senators agreed: only 45 voted for conviction on perjury, while the vote on obstruction of justice was an even 50-50, both well short of the 67 required.
Republicans both lost and gained politically from this episode: when House Republicans lost seats in the 1998 midterms, Gingrich was forced to stand down as speaker. However, the scandal paved the way for Texas Gov. George W. Bush to run for president on the platform of “restoring honor and dignity to the White House.” (The second Bush defeated Al Gore by the narrowest of margins in 2000 and exit polls showed that the Lewinsky scandal was a factor in Gore losing Southern/border states like Tennessee and Kentucky).
Obviously, if Trump is forced out, the 2020 race would be something completely new. Who knows how Mike Pence would do? The guess at this writing is that it will have little partisan impact on the 2020 campaign if the Senate acquits the president: Democrats will go on disliking him and Republicans will continue to support him. Right now, impeachment appears to be just more partisan trench warfare.
But the danger for Republicans is that a combined 100,000 independent voters in Pennsylvania, Michigan and Wisconsin may decide that there has been too much turmoil and vote for a change, reversing Trump’s narrow margin in the Electoral College. Stay tuned … and watch Rubio.
Patrick Reddy is a Democratic political consultant in California. He is the co-author of “California After Arnold” and the author of the forthcoming “21st Century America,” a study of national politics.