Removal is Not the Only Reason to Impeach

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Donald Trump

At the moment, the only remotely compelling argument against impeaching Donald Trump is the observation, likely correct, that the Republicans in the Senate will not vote to remove him. Richard Nixon chose to resign after prominent Republican Barry Goldwater visited him and told him that he would likely lose a trial in the Senate. Bill Clinton sailed through his impeachment trial because he knew the public saw it as the partisan hit job that it was, so the Democrats in the Senate could safely vote against removal.

It is not beyond the realm of possibility that, even if the House votes out an article of impeachment, Republican Majority Leader Mitch McConnell (KY) will refuse to hold a trial. The Constitution grants the Senate the “sole power to try all impeachments,” which suggests that no authority outside of the Senate has any power to compel a trial if the Senate chooses not to hold one.

But that is a very poor reason not to impeach the President. Once the House begins an impeachment investigation, it will have the attention of the nation. By definition, an impeachment inquiry is an investigation of criminal activity. The standard in the Constitution, “treason, bribery, or other high crimes and misdemeanors,” is maddeningly both specific and vague. It is vague about exactly which crimes qualify, but it is specific that the conduct giving rise to impeachment must be criminal.

This is necessary. One important difference between the republic the Founders hoped to create and the monarchy they had just repudiated is that removing monarchs, no matter how corrupt, usually requires force of arms, as the Founders well knew from the history of England in the 17th century, when the English civil war broke out after the beheading of a king and the Glorious Revolution only failed to result in the beheading of a second king because he escaped.

So the Constitution needs to have some mechanism for removing corrupt officials. We call that process “impeachment,” or, more properly, “removal through impeachment,” since technically, the impeachment is just the first step in the process. But if impeachment is too easy — if it is possible to impeach over policy differences — then every political disagreement has the potential to bring government to a halt as political opponents harass each other with impeachment.

So the standard is clearly criminal. That means that the House, in impeaching Trump, has an iron clad reason, legally nearly untouchable, to investigate all of Trump’s crimes, by demanding documents and hearing testimony from any of the many, many people who know about those crimes. The crime does not have to have occurred during the presidency, so state level crimes he committed before becoming president are fair game.

Right now, Trump is preventing even former employees from testifying before Congress. But there are plenty of people out there who have important knowledge of his crimes whom he has no control over at all. Given Trump’s lack of loyalty to anyone, it seems unlikely that too many people will be willing to risk a contempt citation, jail, and fines, to resist testifying against him.

The House impeachment inquiry might well produce evidence that would change the minds of Republican Senators. The decisive evidence against Nixon only emerged very shortly before he resigned. The House began its impeachment inquiry on May 9, 1974. The Supreme Court ordered Nixon to surrender the tapes on July 24. The House Judiciary Committee spent July 27 through 30 debating articles of impeachment, ending in a vote approving one article. On August 9, 1974, Nixon resigned, just over two weeks after the momentous Supreme Court decision.

The rhythms of history are unpredictable. As in legal matters generally, periods of waiting can lead to periods of rapid, fervent activity, which occur unexpectedly. We have no way of knowing what the House impeachment inquiry will turn up.

But it is grossly irresponsible not to find out. Begin impeachment hearings now.

Written by

Uppity gay, Buddhist, author, historian.

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