Some random thoughts on impeachment here…
1) Impeachment is a Constitutionally defined process that is simultaneously legal and political. It is not like a regular criminal case and it is not like a regular piece of legislative business. The Constitution defines impeachable crimes as “treason, bribery and other high crimes and misdemeanors.”
2) To be impeached by the House of Representatives means to be indicted or formally accused of a crime. It requires a simple majority vote in the House. To be removed from office requires conviction in the Senate by 2/3 of the members. Naturally, it requires members of both parties to impeach and convict.
3) If a President is impeached and removed from office, he can THEN be tried in a regular criminal court as a private citizen. Congress determined in 1973 and reaffirmed in 2000 that the President cannot be tried in a criminal court until he is removed from office. Alas, a standard grand jury indictment has no legal bearing on a sitting President (though could presumably be used after removal from office).
4) Impeachment is extremely rare. Andrew Johnson and Bill Clinton were impeached. Neither were removed, though Johnson survived in the Senate by one vote. In 1974, the House Judiciary Committee passed impeachment articles and the entire House was ready to impeach Nixon when he resigned on August 8, 1974 (my first birthday, thank you very much…). He left Washington the next day.
5) To build a case for impeachment and conviction, you must show that a “high crime and misdemeanor” was committed. Obstruction of Justice can certainly count. But you need more than that to make a political case for impeachment and removal. The underlying crime must be proven, be connected to the President (including by cover-up) and be considered serious in its own right. This is why Clinton was not convicted. The perjury and obstruction was there, but the underlying crime (an extramarital affair with an intern) was not considered serious enough. In Nixon’s case, the “third rate burglary” was considered serious enough; the hard task was proving Nixon directly tried to cover it up. The “smoking gun” tape from June 23, 1972 proved the connection. It was released in early August 1974 and resulted in collapse of support for Nixon in the Senate. In Andrew Johnson’s case, he was essentially set up by Congress for violating the recently passed Tenure of Office Act. Johnson fired Secretary of War Edwin Stanton without obtaining Congressional approval. That action and the impeachment trial was a direct outgrowth of the struggle between the President and Congress over Reconstruction policy.
6) There are many possible avenues to impeachment for Donald Trump, but if we want to use the obstruction of justice case in the Flynn investigation then this is what must happen: There must be clear evidence Trump pressured Comey to drop the investigation. And there must have been a very real crime for which Flynn was being investigated. The first part is likely to bear fruit if the memos in the news lately turn out to be as they are reported. Add to the memos Trump’s comments after firing Comey and you can see evidence of “corrupt intent” to obstruct justice. So the Obstruction case will be present…IF an ordinary Grand Jury were indicting. However, to get to the political threshold, evidence must emerge that Flynn was under investigation for serious crimes.
7) What about those serious crimes? The investigation of Flynn is directly connected to the Russia investigation. Was Flynn acting as a foreign agent and not registered as such? For Turkey and for Russia? Is this purely a counterintelligence operation or a criminal investigation? Was Flynn connected to other potentially criminal contacts between Trump, his campaign and either Russian agents, Russian mobsters or Russian-affiliated hackers? This is the part that will need to be aired before actual impeachment and removal goes through the political process.
8) The FBI and the NY Attorney General office is investigating all of these issues. An Independent Commission would be helpful to make sure that investigations stay on course. But the most important near-term priority is that Comey produce his memos of conversations with Trump and that he testify publicly about his interactions with Trump. Doing so can create both a legal and political case for Obstruction of Justice. From that point it will be much harder for Congressional Republicans to avoid a more serious investigation into criminal and espionage/hacking activity that may have involved Trump and the Trump campaign. Serious criminal acts may include collusion on election hacking, racketeering or money laundering. If such criminal activity is demonstrated by the evidence – and is connected to Trump himself – then the political pieces will be in place for impeachment and removal.
Aaron Astor is Associate Professor of History at Maryville College in Maryville, TN
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