At this moment, it is quite probable that the Democratic majority in the House of Representatives will vote to approve articles of impeachment of the president; there is compelling evidence already on display to lead them to do so and evidently much more to come. But it is equally probable that the Republican-controlled Senate, to which the US Constitution gives the responsibility of trying the President under those articles, will not produce anything near the 66 votes it would take to convict him. The impeachment process has a legal appearance to it: the House (which represents the people) serves as a grand jury and either indicts the president or doesn’t; the Senate (which represents the States) serves as a court and either convicts him or doesn’t. It sort of sounds legal, but it is anything but that. In reality it is a fiercely political struggle for power. In today’s partisan political climate, even if the House and the Senate were of the same party, they would only impeach a president of the other party.
What the founders of the United States, those who wrote the constitution in 1789, feared most was the susceptibility of democratically elected political leaders to want a monopoly of power, to want to become another King George III, with whom they had broken at great risk to form “a more perfect Union” (to quote the preamble to the constitution). Had the Americans lost the war to King George’s forces, many of those leaders would have been hung for treason. They wrote a constitution in which the underlying theme is to prevent political leaders from having a monopoly on power by fashioning constraints on the executive, and also on the legislative branch, called checks and balances. Foreseeing that, even with these constraints, human nature was such that some leader would likely try to accrue power by simply not adhering to the law, its writers believed that the constitution would need to have a mechanism to get rid of such a leader—an impeachment mechanism. But in their writings at the time they were fashioning this part of the constitution, the founders realized that despite its legal dressing, any such undertaking to impeach a president would come from a constitutional crisis over separation of powers and would be, from the start, a partisan and a purely political process.
Maybe by good luck, the US has not had a president until now who fancied himself as a king and was unwilling live more or less under the constraints imposed by the constitution. And for the most part, I suppose, the 44 who preceded Trump haven’t felt the need to go up against the House of Representatives in an effort to overturn the intentions of the founders of the country. War, depression, fiscal policy, and much else have contributed to a slow but steady accretion of power to presidents for the last 100 years or so. Many of the constraints, congressional oversight among them, have become rusty from disuse. But Trump has upped the ante, and in the last few months, the US has been in a quasi-constitutional crisis without most Americans realizing it. He has announced a policy which, implicitly, reverses the intention of the founders that the House of Representatives, representing the people, is the primary branch of government by refusing to recognize the right of the House has to oversee actions of the executive branch. This has taken the form of refusing to provide documents and officials that the House has requested, and sometimes subpoenaed, as it intended to investigate the many hanging threads of the Mueller report on Russian interference in the 2016 election. The Trump administration has claimed “executive privilege,” and this is slowly working its way, piecemeal, to the courts, and only beginning to escalate into a recognized constitutional crisis. But before the courts could formulate opinions—and now packed with Trump appointees their opinions were likely not to be definitive—the issue has now been overtaken by the revelation of Trump’s recent actions that on their face look like extortion and unlawful solicitation for “a favour” from the new President of Ukraine. Overnight the quasi-crisis has been elevated to a full blown constitutional and political one.
In the 230 years of US history, only two presidents have actually had House-approved articles of impeachment sent to the Senate for trial. Neither was convicted by the Senate. In 1868, Andrew Johnson, who was Abraham Lincoln’s vice president, thus was a member of the Republican party, actually had articles of impeachment against him approved by a Republican controlled House, but the partisan divide in the late 1860s was less problematic than the divide over how the treat Southern States after a bloody civil war. One hundred twenty years later, Bill Clinton was impeached by a Republican-controlled House and acquitted by a Democratic-controlled Senate (although some Democrats voted against him). Richard Nixon, the president many of us probably think was impeached actually resigned before the House voted on the articles of impeachment against him. It would have passed the House, but what made Nixon resign very hastily was that senior Republican Senators had told him that he would be found guilty in the Senate. They did not have the votes to stop it, and Nixon did not want to be the only American president to be found guilty of what the Constitution gives as the reason for impeachment—“high crimes and misdemeanours.” Almost 20 Republican Senators would have to defect for the Senate to find Trump guilty, which seems very unlikely in these days of partisan passions, and will surely take much more evidence and of even more serious crimes for anything close to that number of Republicans to defect.
So the upshot is that the probability is close to 100 percent that impeachment will not get rid of Trump. The only way is to defeat him in next year’s election. So why go to his trouble? And is it not possible that a failed impeachment will strengthen Trump in the election? The latter question makes a lot of political observers uneasy. It sometimes has seemed that Trump was trying to bait the Democrats in the House to launch an impeachment inquiry. Those who are uneasy cite the Clinton impeachment, which not only failed but increased Clinton’s popularity. But democrats on the left, and others who take their oath of office seriously, argue that Trump has committed so many crimes, that to not impeach would be viewed as dereliction of their duty. The party leaders weren’t convinced, however, wanting the focus of party efforts to focus on the election by building as good a legislative as possible in this dysfunctional government and putting together a strong and appealing platform for the election, one that would draw in both the militant left and the independents who had voted for Trump in 2016.
The whistleblower’s letter, leaked to the Congressional Democrats only about a week ago has, however, turned the Party on a dime toward impeachment. It promises hard and available evidence on a serious felony by the president. Within a few hours, the House Democrats supporting impeachment grew to almost the entire Democratic majority of the House, and party leaders were swept along by the tidal wave. They promise a narrowly focused and swiftly moving inquiry that they hope to finish before the end of the year.
For the more suspicious opponents of Trump, those who have their eye fixed firmly on the main goal of defeating Trump in 2020, that last part is the most welcome part of the news. To have an impeachment dragging on well into an election year could very well be a recipe for disaster for the party that started the impeachment.
The writer is an American diplomat, and is Senior Policy Scholar at the Woodrow Wilson International Center for Scholars in Washington, D.C.