Thursday, June 08, 2017

What it takes to impeach a President & why we're not remotely close to impeaching President Trump. [UPDATED 08/21/18*: It's getting close.] [UPDATED 02/27/19**: We're there.]

UPDATED: 02/27/2019**
What it takes to Impeach a President
 Graphic Updated after Michael Cohen Hearing 2/27/2019* 
To Impeach or Not to Impeach...
Conventional wisdom informs us that impeachment proceedings against a sitting President will not happen while the legislative branch is in control of the same party as the President. History bears this out, as impeachment actions against Andrew Johnson, Richard Nixon and Bill Clinton were all initiated when the House of Representatives was controlled by the opposition party. But with President Trump, history and conventional wisdom may be steering us in the wrong direction, as many establishment Republicans would far prefer Mike Pence as President. Regardless, it is certainly true that divided government would make impeachment easier and the 2018 midterm election looms large.

The unfolding James Comey testimony, and in particular his opening statement published a day earlier, has precipitated predictably contradictory analysis of whether the threshold for impeachment has been crossed or not.

That is the Question
For those of us of a certain age, the question of what it takes to impeach a sitting President, or force a President to resign under threat of impeachment, is not a hypothetical historical exercise. We've seen it twice in our lifetime. We saw President Clinton impeached but not convicted. We saw President Nixon resign under threat of impeachment. In both cases, congressional leadership from the party of the President calling out the President were critical factors.  In both cases, there was an evidentiary Rubicon that had to be crossed before impeachment became a realistic possibility.

Clinton's Case:
On September 3, 1998 - Democratic Senator Joe Lieberman took to the floor of the Senate to call out the President:
"Let us as a nation honestly confront the damage that the president's actions over the last seven months have caused... let us be guided by the conscience of the Constitution, which calls on us to place the common good above any partisan or personal interest, as we now in our time work together to resolve this serious challenge to our democracy."
And on October 8, 1998 Democratic Representative Paul McHale of Pennsylvania said:
"We cannot excuse that kind of misconduct because we happen to belong to the same party as the president or agree with him on issues or feel tragically that the removal of the president from office would be enormously painful for the United States of America."
Nixon's Case:
On August 7, 1974 - Republican Senator Barry Goldwater, House Republican Leader John Jacob Rhodes and Senate Republican Leader Hugh Scott met Nixon in the Oval Office and told him there was not enough Republican support to avoid impeachment and conviction. Nixon resigned the next day.

The Critical Path and Key Factors To Impeachment
In both the Nixon and Clinton case, leadership of the President's party was key to unlocking the impeachment. But what forced their hand? Two things:
  1. A co-conspirator testifying under oath to the President committing a crime. 
  2. The emergence of undeniable physical evidence corroborating that testimony. 
In 1974 it was co-conspirator John Dean, White House Counsel to President Nixon, testifying under oath that the President was party to a cover-up and obstruction of justice. That was not enough in and of itself. It was Dean's word against Nixon. The physical evidence of Nixon, speaking on taped recordings, revealed by Alexander Butterfield, corroborated John Dean's testimony and undid the Nixon Presidency.

In 1998 it was co-conspirator Monica Lewinski, White House intern, testifying under oath that the President committed perjury about their sexual relations. That was not enough in and of itself. It was Lewinsky's word against Clinton. The physical DNA evidence on her blue dress, revealed by Linda Tripp, corroborated Monica Lewinsky's testimony and resulted in President Clinton's impeachment and trial in the Senate.

So with history as our guide, this is what we need to see before taking seriously any potential impeachment proceeding against President Trump:
  1. A co-conspirator testifying under oath to the President committing a crime. 
  2. The emergence of undeniable physical evidence corroborating that testimony. 
As of today, including James Comey's public testimony, we have not seen any such evidence. This evidence may exist, it may not. Testimony implicating the President in a crime may emerge in the various investigations, or it may not. But until we see co-conspirator testimony, corroborated by undeniable physical evidence, any expectations of an impending impeachment of President are - to put it mildly - wildly, insanely premature.

*UPDATE: 21-August-2018

A Co-conspirator Testifies
It's been over a year since we wrote this piece. A lot has been revealed since then. Pre-dawn raids. Tapes. Guilty pleas. Indictments. Jail sentences. Porn stars. Russians. Witch Hunts (not). Witness tampering. Playboy models. Payoffs. Omorosa. More Tapes. Truth that is or isn't truth. And lawyers - lots and lots of lawyers. But what we have not seen is the first criteria for impeachment outlined in this post. We have not seen a co-conspirator testifying under oath to a presidential crime. That is, until today:
Michael Cohen’s Lawyer Says Trump Directed Him to ‘Commit a Crime’
"In acknowledging the charges against him, Cohen said he was directed to violate campaign law at the direction of a candidate for federal office. At the same candidate’s direction, he said he paid $130,000 to somebody to keep them quiet, which was later repaid by the candidate. He didn’t identify the candidate or the person who was paid, but those facts match Cohen’s payment to Clifford and Trump’s repayment."
Trump's former lawyer Michael Cohen pleads guilty, admits to making illegal payments at direction of candidate to influence election
Cohen's comments during his plea hearing mark a significant legal setback for the president, legal experts have said. Mimi Rocah, a former assistant U.S. Attorney in the Southern District of New York, said the disclosures from Cohen were "huge." "He has now said under oath that these campaign finance violation payments we made under the direction of what everyone understands to be Donald Trump," Rocah said during a Tuesday interview on MSNBC.
Michael Cohen testified under oath that he conspired with President Trump conspired to commit felony campaign finance violations. There may even be corroborating evidence on tape.

Is this a smoking gun?

In 2018 it is co-conspirator Michael Cohen, Personal Attorney to President Trump, testifying under oath that the President was party to conspiracy and violating campaign financing laws. That will not be enough in and of itself. It is Cohen's word against Trump. But the physical evidence of Trump speaking on a conversation recorded by Cohen, and the implication that there are more recordings and more evidence, point to the eventual undoing of  the Trump Presidency.

Does a President conspiring to violate campaign finance laws rise to the level of a President being impeached for perjury when lying about a blow job? Methinks - yes. Enough to impeach in a Democratic House, but like Clinton, not enough to convict.

The countdown for the impeachment or resignation of President Donald Trump starts today.

**UPDATE: 27-February-2019

Divided Government, Real Oversight, and Corroborating Evidence
We originally wrote this post a few months into Donald Trumps Presidency to caution overly enthusiastic Democrats that the criteria for impeachment simply did not yet exist. Things have changed. As of the conclusion of House Oversight Committee hearing with Michael Cohen, the threshold for impeachment (as determined by the Nixon and Clinton examples) has been met.  We have a divided government with the opposing party to the President in majority control of the House of Representatives - like we had with Nixon and Clinton. The public has seen a co-conspirator testifying under oath to participating with the president in a crime and there is corroborating physical evidence - like we had with Nixon and Clinton. Lawrence O'Donnell explains:

Done Deal.
The Bill Clinton Impeachment Bar has been cleared. There is now at least as much justification for impeaching President Trump for violating federal campaign contribution law as there was for President Clinton committing perjury about a blow job in the oval office. That doesn't mean it will happen immediately.

Impeachment is a political process. Political calculation factors into whether it makes sense to initiate impeachment hearing. In retrospect, Newt Gingrich and the Republicans miscalculated badly in 1998. Nancy Pelosi and the Democrats are not likely to make that same mistake. It is much smarter for the the Democrats to wait for additional shoes to drop from Mueller and United States Southern District Court of New York Investigations. Those investigations may create sufficient public outrage to force the Speaker's hand. Impeachment is a done deal, but we don't know when.

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