Since the day Donald Trump was elected president in 2016, people have talked about impeaching him. Rep. Al Green (D-Texas) filed a resolution for impeachment less than six months into Trump’s presidency (it failed by the end of the year, though 58 Democrats voted for it); and other prominent Democrats, like Rep. Maxine Waters (D-Calif.), have discussed getting “ready for impeachment” since well before the party’s midterm victory.
Talk of impeachment escalated dramatically in the past couple weeks though, after sentencing memos from prosecutors regarding former Trump lawyer and fixer Michael Cohen were filed. For the first time, prosecutors placed the president at the top of a criminal conspiracy, in this case campaign finance violations committed when he allegedly ordered Cohen to pay hush money to former mistresses in order to protect his campaign.
The influential incoming House Judiciary Committee Chairman Jerry Nadler called the payments an “impeachable offense” this week, even as the likely new house speaker, Nancy Pelosi (D-Calif.), and other party leaders have urged caution until special counsel Robert Mueller’s investigation is complete. Some observers now believe it’s inevitable that Trump will be impeached, while Trump himself is now reportedly worried about the possibility.
But what of Trump’s conduct is actual cause for impeachment? And when should Congress pursue it?
Unfortunately, there’s so much confusion about the answers to these questions ― with conflicting answers given equal airtime ― that different discussions seem to be based on completely different sets of assumptions. Trump supporters often demand to know what actual “crime” Trump has committed, which, despite the focus on the Cohen payments, is actually not quite germane.
“Donald Trump’s presidency has brought the nation back to constitutional territory: talk of impeachment, this time based on a wide range of alleged misconduct, including possible financial conflicts of interest, his presidential campaign’s possible collusion with the Russian government to influence the election, obstruction of justice, threatening freedom of the press, encouraging the harassment or prosecution of political enemies, and degrading the presidency,” writes University of North Carolina distinguished professor Michael J. Gerhardt in his timely book, Impeachment: What Everyone Needs to Know. “As has often been the case in the past, conversations about impeachment largely reflect misunderstandings of how the Constitution works in this area.”
The “most important thing” that everyone needs to know about impeachment, Gerhardt says, “is that there is a lot to learn.”
It’s Not A Criminal Prosecution
First off, the president doesn’t need to have violated a federal law ― or any other law ― for the House to file impeachment charges and for the Senate to convict him.
This has been further confused by ongoing media discussion about whether a sitting president can be indicted while in office, something about which there is considerable debate among legal scholars, because the Constitution doesn’t address it. The Justice Department has issued several memorandums on the subject over a period of decades, including the last one almost 20 years ago, which concluded that a sitting president cannot be indicted because it would “unconstitutionally undermine the capacity of the executive branch.”
Incoming House intelligence committee Chairman Adam Schiff recently said he believes it is constitutional to indict a sitting president and that the Justice Department should “re-examine” its guidance. (Ultimately, it might take the Supreme Court to decide.)
But again, criminal charges are a separate matter from impeachment. Presidents can be impeached for actions that are in fact a violation of the law, though it doesn’t mean they always should be impeached in those instances. And they can also be impeached because they’re believed to have abused their power, even if a criminal charge doesn’t apply. It’s up to Congress to decide what rises to an impeachable offense, defined by a term in the Constitution, “high crimes and misdemeanors,” that has always been up for grabs.
It’s Up To Congress
So, President Bill Clinton was impeached by the GOP-controlled House on two charges: perjury (lying to the FBI) and obstruction of justice. Both are also violations of U.S. law, but because the charges surrounded his lying about a private sexual matter, the Senate failed to meet the two-thirds threshold required to convict him on the charges and remove him from office. As Gerhardt notes, a substantial number of senators later explained their not-guilty vote by saying that the actions didn’t rise to an impeachable offense — punishment for which can only be removal from office, nothing less — and many pointed to the partisan agenda of House Republicans.
Conversely, impeachment charges can be brought for actions that aren’t illegal. President Richard Nixon resigned before he could be impeached, after the House Judiciary Committee had drawn up articles of impeachment. One of those articles charged that Nixon ordered the FBI and the IRS to torment his political enemies. A president directing the heads of agencies to take various actions is not illegal, but ― like Trump calling for investigations of his political enemies ― it was certainly an abuse of power, which the House Judiciary Committee at the time believed to be an impeachable offense.
Thus, when Trump and his supporters claim “collusion” is not a “crime” under U.S. law, it’s largely irrelevant, whether it’s true or not. A presidential campaign conspiring with a foreign power that interferes on its behalf in an election rises to the level of impeachment if the Congress says it does.
A Laundry List Of Charges
Even if Trump isn’t shown to have conspired with Russia on election interference, his repeated lies to the American people about his connections to the Kremlin while he worked with Russia on a personal business project, the Trump Tower Moscow, well into the campaign, could rightly be viewed as an impeachable offense. And even before the Cohen filings made the timeline of that deal clear, Trump’s calls for better relations with the Russian government, including lifting sanctions and changing American policy in Ukraine, could be viewed as an impeachable case of putting his own selfish interests before the United States’.
Then there are the violations of the emoluments clause and Trump taking gifts (in the form of patronage by diplomats at his hotels and other properties) from foreign governments; benefiting his businesses with policies he put in place (such as the massive tax law); possibly allowing foreign governments to pay for preferential treatment in policy decisions; possible human rights abuses by the Department of Homeland Security at the border; attacking the free press; directing his agencies to investigate his political enemies; and a slew of other things.
To reiterate, Trump could face civil or even criminal penalties on some of these actions (and on several, lawsuits are ongoing), now or later. But that would be separate from the question of impeachment.
This also helps to clarify why it’s better, as some pundits and politicians have counseled, to wait until many of these issues are made clearer, via Mueller’s report as well as via public lawsuits and investigations by the incoming Democratic-controlled House. Those may well shift public opinion further toward impeachment and add even more options to the list of possible charges.
It’s Ultimately Politics
This last point gets to the fact that there will always be a political dimension to impeachment, which was baked into the process by the founders. Gerhardt notes that there were calls to impeach George W. Bush over the reckless Iraq War, but Democrats thought better of it. Conversely, some Republicans might have been zealous about the idea of impeaching Barack Obama for what they saw as abuses of power, but the American people were nowhere near in agreement on that.
So Democrats are right to think strategically about their approach, even if Trump has already given them more than enough cause. Not only should there be further investigation by House Democrats in the next year, so they have the most compelling case possible, it’s also best to move toward impeachment close — but not too close — to the 2020 elections.
The conventional wisdom that the Senate will never vote to impeach is a bit overrated. Depending on how numerous and serious the charges are — and how much various senators are worried about their 2020 and even 2022 re-election campaigns — anything can happen.
Already, Republicans Cory Gardner of Colorado, Susan Collins of Maine and Thom Tillis of North Carolina are prime targets for Democrats in 2020 based on the 2018 midterms. No one thought Texas’ John Cornyn would have a competitive race until Beto O’Rourke came close to toppling Ted Cruz. The midterms also showed us that Senate elections in Georgia and even Kansas could be close and that Democrats now can win in Arizona. Republicans can take little for granted. As Robert Kuttner noted in a HuffPost column last week:
The case for impeaching Trump is so overwhelming that it will put the 10 Senate Republicans with vulnerable seats in 2020 or 2022 in an awkward position. And others, even relative loyalists, may decide the time has come to trade in Trump for Vice President Mike Pence. Relations between the Republican Senate and Trump are nothing if not opportunist, cynical and transactional.
Outgoing Democratic Sen. Claire McCaskill had the same idea when she told The New Yorker that Mitch McConnell “will stand with [Trump] as long as it is in the interest of the majority of the Senate.”
Impeachment looks like it will be an action for House Democrats to pursue, no matter what the outcome in the Senate, because it’s the morally right thing to do and justice will demand it. Trump might also just resign, like Nixon, rather than face the music. And the debate and discussion in the House will be enlightening, so that the American people can make informed decisions in the 2020 elections.
Michelangelo Signorile is a HuffPost editor-at-large. Follow him on Twitter at @MSignorile.