It took Richard Nixon six years to lose the confidence of the American people. It has taken Donald Trump only two weeks.
President Nixon went to the dock in the House of Representative for lying about his involvement in the break-in of the Democratic National headquarters. There were tapes recorded in the Oval Office that proved it. The idea a president would stoop to petty burglary to protect his presidency was enough to bring Republican leaders in Congress, notably Arizona Sen. Barry Goldwater, to his doorstep to tell him it was time to step down.
Goldwater had supported Nixon throughout his escalation of the Vietnam War. He shared his conservative views and supported a stronger role for America in global affairs. But he could not countenance his America being led by a mercurial, megalomaniacal liar. Would that Republicans had the same gumption today.
The Emoluments Clause
The wheels of impeachment grind exceedingly slow. The process is more political than legal. The grounds are always vague, and the jury is composed of 100 Senators, 67 of whom must vote for conviction.
As a result, the chances of impeachment leading to conviction are slim. But the process has begun on solid footing. A lawsuit filed by Citizens for Responsibility and Ethics in Washington (CREW) contends Trump has been in violation of the Emoluments Clause of the Constitution since the first day of his presidency; and the so-called blind trust he established to distance himself from his business interests lists him as the 100% beneficiary of decisions made by his son and chief financial officer.
In President Trump’s mind, The United States is just another business in his vast empire that will benefit from his business acumen. But the Emoluments Clause (Article 1, section 9) states clearly that no person holding any office of profit or trust “shall, without the consent of Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”
In olden days, emoluments were gifts intended to curry favor with the chief executive. Today, they can run the gamut from room rentals by foreign dignitaries in Trump Hotels to Trump-branded real estate deals in any of a dozen foreign capitals.
The clause has never been tested in court. The first obstacle CREW must overcome is standing. Is this a matter for the courts or must they defer to Congress because it is a political issue? But the lawsuit comes with the backing of Richard Painter, President George W. Bush’s top ethics lawyer, and Laurence Tribe, a Constitutional law professor at Harvard who has argued 35 cases before the Supreme Court, so one can presume the plaintiffs have thought through that issue.
If the lawsuit moves forward, discovery motions are sure to follow, the most obvious being a request to see Trump’s tax returns.
And then, Melania, bar the door!
High Crimes and Misdemeanors
The more traditional path to impeachment runs through Article II, section 4 of the Constitution where the grounds are “treason, bribery or other high crimes and misdemeanors.”
Trump was almost giddy when he discovered the president is exempt from conflict of interest statutes, but that does not extend to its logical outcome, bribery – if a quid pro quo can be established – or, for that matter, treason if one of President Trump’s foreign policy initiatives is deemed a betrayal of American interests.
But the most fertile ground is “high crimes and misdemeanors,” a catch-all used three times in the past to impeach Andrew Johnson in 1868 for not being Abraham Lincoln, Richard Nixon in 1974 for masterminding a petty burglary, and Bill Clinton in 1998 for getting a blowjob in the Oval Office.
During the Constitutional Convention, the Founding Fathers weighed other things serious enough to overturn the vote of the people. Corruption, maladministration, malpractice, and neglect of duty were considered and rejected as too limiting. They finally settled on “high crimes and misdemeanors” – an expression that dates back in English law to 1386 under which officials of the crown could be impeached for, among other crimes, misappropriating government funds, appointing unfit subordinates, not spending money allocated by Parliament, and losing a ship by neglecting to moor it.
As his administration goes on, Donald Trump will no doubt generate enough material for multiple counts under high crimes and misdemeanors. But it is important to remember impeachment is not a criminal procedure. It is a political process subject to all the whims of public opinion and vagaries of politicians.
Impeachment proceedings cannot move forward until there is widespread agreement that Trump is a loose cannon in the President’s office. Widespread means Democrats and Republicans must agree he is acting in an imperial manner outside the norms the American people will accept.
While the federal courts weigh the constitutionality of Trump’s ban on Muslim immigration, nearly half of the country (and 85% of Republicans) approve of it. His nomination of a conservative to the Supreme Court appealed to all segments of his party, and there’s little chance Republicans will want to do anything to upset him while their agenda is moving through Congress. Only when they are satisfied they have gotten their just desserts for their November victory will they be ready to consider what Ted Cruz told them a year ago: Donald Trump is an utterly amoral, narcissistic, pathological liar.
Meanwhile, Trump’s off the cuff tweets and reckless trashing of American alliances bring us perilously close to a global conflict. Fortunately, Republicans and Democrats have a way of coming together in times of war. If he stumbles into an ill-conceived foreign venture, or worse, causes the economy to plummet, the public will quickly turn against him.
A baseline for measuring Trump’s popularity today is his approval rating in the polls released on the day he took office. These ranged from 48% (Gallup) to 41% (Real Clear Politics) to 37% (Quinnepac). All are historically low measured against the 65-75% approval accorded Presidents Clinton, Bush and Obama when they took office.
How much further must they fall before impeachment gets on the political radar? At the current rate – his Gallup numbers fell another 5% in the first two weeks – his approval rating could be flirting with the low 30s by April. But that’s about the lower limit. A recent Morning Call poll by Politico showed 28% of respondents believe Trump’s claim that three million illegal immigrants voted against him. Neither hell nor high water is going to change those minds.
The polls, however, don’t have the same sway as in past years. “They are all rigged,” Trump railed at his rallies, and the fact is we’re all pretty much polled out by the last election. His surrogate Kellyanne Conway, moreover, has successfully undermined public confidence in the numbers.
There are good reasons to be skeptical. Public opinion polls are easy to conduct, tainted by the phrasing of questions, subject to fungible algorithms, and the media reporting, especially on cable news, rarely unpacks the variation in responses from the South, Midwest and the coasts. (That explains why Trump won an Electoral College victory while Hillary Clinton was piling up a 3 million plurality in the popular vote.)
More to the point, Trump has no regard for them (unless they favor him). He will go to his grave believing his public support is as vast as the crowds at his inauguration.
The Women’s March
The Women’s March on Washington galvanized three million people against the new president. The televised images of huge crowds in dozens of cities proved there is a viable resistance afoot. But where do they go next?
As a child of the 60’s, I understand the impact that anti-war protests had on American policy in Vietnam. But it was not until disillusioned vets started returning to their small towns, and students spent many uncomfortable Thanksgiving dinners in conversations with their parents that a national consensus formed around the idea the Vietnam War was “a mistake.”
Donald Trump is another mistake. While it is easy enough to sit around with your compatriots complaining about Trump and protests stoke news coverage, they also can turn violent, and a lot of Republicans will have to come around to reconsidering their vote for the man before impeachment can move forward.
No Fast Fix
It will not happen in the current session of Congress. To bring articles of impeachment, 24 Republicans would have to join all 194 Democrats in the House to vote for Trump’s removal. But that would still comprise only the barest majority, not worth the political risk for leaders of either party.
House Speaker Paul Ryan has too much to gain by keeping his Republican majority intact, and Minority Leader Nancy Pelosi is so consumed in preventing the dismantling of President Obama’s legacy she cannot afford the distraction.
Even if President Trump does something outrageous enough to spark a pang of conscience in Ryan, he cannot bring his party along with him. The chairman of the House Judiciary Committee where articles of impeachment must be drawn up, for instance, is Rep. Bob Goolatte, a dyed-in-the-wool conservative from Virginia who not only helped author Trump’s Muslim immigrant ban but introduced legislation to abolish the House Ethics Office this year.
Nonetheless, it is important to start the drumbeat now. In phone calls to congressional offices, and especially in town hall meetings in individual congressional districts, Republicans and Democrats must be confronted by the question: will you vote for impeachment if circumstances warrant it?
President Trump thrives on being the center of attention. Does anyone believe he won’t be in the upcoming 2018 midterm elections?
His presence will loom over both House and Senate races. Just as Iraq overshadowed domestic issues in the 2006 midterm races, so too will Trump be the crucible in these. It may not make much difference in the Senate where the map heavily favors the Republicans. Of the 33 seats up for grabs, Democrats (or independents who caucus with the Democrats) will be defending 25. Ten of those are in states Trump won, five by double digits (Indiana, Missouri, Montana, North Dakota and West Virginia).
But the House elections are a different story. Trump’s victory upended some long held assumptions about Congressional races. Conventional wisdom holds that gerrymandering over the last two decades has assured a low turnover of seats in the House. In 2016, for instance, 380 of the 393 incumbents seeking re-election (96.7%) won.
Democrats walked away with a net gain of six seats, although they probably would have won more if Hillary Clinton had not run such a lackluster campaign. This year, Democrats need 24 more. Impossible? In 2006, when Rahm Emanuel ran the Democratic Congressional Campaign Committee, they regained control of the House with a 31-seat swing.
Emanuel himself doesn’t think they can do it. “It ain’t gonna happen,” he told a Stanford Business School forum earlier this week. “Take a chlll pill, man. You gotta be in this for the long haul.” One reason to be skeptical is that Democratic turnout traditionally dips in non-presidential election years. But there are other indicators the 2018 midterms might be more fluid.
According to a study by the University of Virginia’s Center for Politics, 69 congressional districts are close enough to be considered electoral battlegrounds next year. That’s twice as many as last year. Thirty-two are now represented by Democrats, and 37 by Republicans. Four years ago, then President Obama won all but one of those Democratic districts and three of the Republican ones. And next year, the opponent is going to be Donald Trump.
An All Consuming Process
Impeachment is the one issue that can tip control of the House to the Democrats, but it cannot be a partisan issue. In all likelihood, Trump’s unnerving conduct will lead to primary challenges against Republicans who have enabled him, and a fragile Republican caucus in the House will fracture. Deciding what impeachment charges to bring, hearings, testimony, and a Senate trial, may well consume Congress for the next two years.
You might think a rational president would see the handwriting on the wall and step down, as Richard Nixon did. But Donald Trump is not a rational president. He will double down on his ability to fight off criticism with insults, false facts and braggadocio, exacerbating his low standing with Republicans. Mitch McConnell himself may lead the delegation to the White House asking for his resignation.
So grab a drumstick and start beating. Let’s not wait for the body bags to start coming back from some foreign war he tweets us into. Donald Trump is not only his own worst enemy, he is America’s as well. But make it a measured beat. Reach across the aisle to talk to friends and family. And start the conversation knowing the best outcome may not be all that you hope for.
Welcome to the Oval Office, President Pence.