The meaning and limits of an impeachment procedure

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Tickets for the impeachment trial of President Bill Clinton

To make a long story short: does Donald Trump deserve to be removed from the office of president of the United States? Yes, probably. Can he be removed through impeachment proceedings? Yes, technically. Will he be impeached by the House and convicted by the Senate? No, most probably. The reason very bad presidents have remained in office for their full terms is simple: impeachment is a very weak constitutional weapon. In the entire history of the United States the House has approved the required “articles of impeachment” just three times, and only twice has a president  actually been tried by the Senate: Andrew Johnson in 1868 and Bill Clinton in 1999. Both were acquitted. In 1974, Richard Nixon chose to resign in order to avoid the humiliation of a trial, but it is by no means certain that if the proceeding had gone forward he would have been removed by the Senate, where a two-third majority is necessary for conviction.

Let’s start our analysis with the founders' intent: at the Constitutional convention in 1787, some delegates spoke against the very concept of impeachment because they wanted to preserve the independence of the Executive from Congress. They thought the judgment of voters every four years to be a sufficient safety valve against any abuse of power.

James Madison was cold vis-à-vis the institute, but nevertheless he tried to convince Gouverneur Morris and other skeptics of the need for impeachment. This provision, he argued, was “indispensable” in order to defend “the Community ag[ain]st the incapacity, negligence or perfidy of the chief Magistrate. The limitation of the period of his service, was not a sufficient security. He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers.” Any of these events, “might be fatal to the Republic.”

Madison's argument, in other words, was that the vast powers of the presidency might tempt the holder of this office into committing crimes against the United States, like treason, or bribery from a foreign power.

On September 8th, 1787, there was a lengthy debate on the issue of impeachment, and that discussion remains the best compass to understand the issue. Virginian delegate George Mason asked: “Shall any man be above justice?” He warned that the president “can commit the most extensive injustice” while “Treason as defined in the Constitution will not reach many great and dangerous offences. (…) Attempts to subvert the Constitution may not be Treason as above defined.” Mason proposed to add 'maladministration' to the other impeachable offenses and “Mr. Gerry seconded him.” The delegates adopted impeachment as a necessary check against tyranny.

However, James Madison himself opposed the use of the word “maladministration” because, he countered, “So vague a term will be equivalent to a tenure [of the President] during pleasure of the Senate.” At this point, Mason withdrew “maladministration,” and put “high crimes and misdemeanors against the State” in the text. The motion carried. Later, the final version, approved by the Committee of Style and Arrangement, dropped the words “against the United States,” because the very expression "high crimes and misdemeanors" in British common law had the meaning of political offenses against the state. The Constitution, then, incorporated this text, never changed since its ratification: “The President (…) shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors” (Article II, section 4).

Let’s now go back to the Trump saga. If proven, would the collusion with Russia during the 2016 election campaign be tantamount to treason? Many say so, but unfortunately treason is clearly defined by the Constitution as aiding the enemy "in time of war" (Article III, section 3) and this definition is so restrictive that even the infamous Aaron Burr was not convicted by Chief justice Marshall in his trial in 1807.

However, one could argue that there would be “obstruction of justice” if special prosecutor Robert Mueller were able to prove that Trump’s family and allies contacts with Russian agents before and after November 8th, 2016 were part of a conspiracy to win the election. In this framework, firing FBI director James Comey would qualify as “obstruction of justice,” indeed an impeachable offense: it was used in the articles of impeachment against both Nixon and Clinton for actions far less outrageous than those of Trump.

What about “bribery?” On this count, Trump looks like a textbook case: as president he profits  from the hundreds of businesses linked to his brand, starting with the Washington hotel that he leases from the federal government. Even more telling is the fact that in February 2017 the Chinese government granted him trademark rights for the use of the Trump brand in the construction industry: quite a lucrative coup for him, as he had spent years, and hundreds of thousands of dollars, seeking this very trademark without success. The Trump organization has business interests in dozens of countries, from Scotland to the Philippines.

However, the political nature of impeachment proceedings represents an extraordinary high hurdle in order to punish misbehavior inside the White House. Historically, the House of Representatives has been “a tardy grand jury,” and the Senate “an uncertain court,” in Woodrow Wilson's judgment. They are all the more so in an era of Republican majorities in both houses of Congress. The Republican party is locked into a shotgun marriage with Trump: his fall would be its fall. This is why it appears that there are no actions, no speeches, no tweets crazy enough to break the bond. Impeachment proceedings must start in the House and require a two-thirds majority in the Senate, which basically means an almost unanimous agreement of both parties. In an era of extreme political polarization there is no chance of this happening.