I am not one of those Democrats who has clamored for Mr. Trump’s impeachment from the start. But lately — especially after reading through the Mueller report and listening to Michael Cohen’s day in the witness chair — I am beginning to start down that road.
Let’s start with the basics: The Constitution says 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. The power to initiate impeachment proceedings — equivalent to indictment — is given to the House, Article I, Section 2, and the power to try cases is given to the Senate, Article I, Section 3. A guilty verdict requires the vote of two thirds of the Senators who are present.
The Constitution does not directly answer the crucial question: What are “high Crimes and Misdemeanors?” but it provides some clues.
The reference to other possible charges — treason and bribery — and the result of a conviction — removal from office — supports the view that only very serious charges are contemplated. Nevertheless, the definition is left to Congress to decide when it initiates impeachment, and thus it is basically a political question rather than a strictly legal question.
I therefore believe that the best guide to defining these terms is what previous Congresses have decided are “misdemeanors” in this context. So let’s look at what charges previous Congresses have presented.
The first presidential impeachment situation in the modern era was the infamous Nixon affair.
Some men associated with the Committee for the Re-election of the President unlawfully broke into the Washington headquarters of the Democratic National Committee to secure evidence that might have been helpful to President Nixon’s re-election.
Nixon initially denied any knowledge of what his Press Secretary dismissed as a “third-rate burglary” but then he and others went to some length to conceal his involvement and that of his aides and of the Committee. This included buying the silence of the burglars and others, urging aides to lie to the grand jury about the connection, and distributing false information about the affair.
After extensive public proceedings, the House Judiciary Committee (controlled by Democrats) adopted three articles of impeachment and forwarded them to the full House. The likelihood that impeachment and conviction would take place led several key Senators to persuade President Nixon to resign his office.
In 1998 President Clinton was the subject of two articles of impeachment leveled by a Republican majority in the House. One was perjury — lying to the grand jury in the investigation of his affairs with Monica Lewinsky and Paula Jones. The other was for obstruction of justice by encouraging Lewinsky to lie to the grand jury and in other ways attempting to impede the investigation. The charges were defeated in the Democrat-led Senate: 67 votes were needed to convict: The perjury charge got 45, the obstruction charge got 50. All Democrats voted to acquit.
Some commentators interpret these results as an indication that the two charges were not considered “impeachment offenses, ” i.e., of sufficient gravity to result in removal from office; others dismiss the votes as pure partisan politics. But notable is the fact that the charges had little or no bearing on Clinton’s performance of the job of president.
In the present Trump matter, one could start with his paying off the porn star known as Stormy Daniels. It is said that on the eve of the election she would have revealed an affair she had had previously had with him, which, after the Access Hollywood tape, might have cost him the election.
Thus, the charge would relate directly to Mr. Trump’s election, and it is difficult to think of a charge more closely related to his fitness to be President.
A number other examples of obstruction of justice are laid out at p. ii and pp.15-148 in vol. II of the Mueller Report.
Justice Department rules say that a sitting president cannot be indicted, which leaves impeachment as the sole process that can be employed.
One might doubt that, no matter what the evidence might show, the Republican Senate would convict President Trump if he were impeached by the Democratic House.
All I am saying is that there is a case of impeachment to be made, and we shall have to wait and see if Cohen’s testimony and the obstruction findings in the Mueller report would stand up in the Senate and if further evidence should emerge that could persuade the Republican Senate to convict rather than permit a flawed president to continue in office.
John Vanderstar is a Navy veteran, a graduate of Harvard Law School, and a retired Washington lawyer. He lives in Waynesville.