The Case for Impeaching Donald Trump, and Maybe Brett Kavanaugh Too

The time has come to impeach the President of the United States.

No one in modern political history plays the victim card quite like Donald J. Trump.

In a literary sense, Trump fancies himself the hero of his own story, although a hero (especially, a tragic one like Shakespeare’s Hamlet) is eventually brought down by his own flaws. Trump envisions himself as a man without flaw, so Hamlet does not fit.

Maybe King Lear then? Like Lear, Trump is a narcissist. Trump has a similar unhealthy obsession with his own daughter. Like Lear, Trump’s mind is gradually declining, and he will soon reach a point where he is nothing more than a bundle of infantile tantrums and incoherent ramblings. That might be the fit we are looking for, but let’s leave Lear alone. We need to be careful about reinforcing that recurring Trump fantasy of being a monarch, or a God.

Perhaps Trump the victim sees himself instead as Willy Loman, Arthur Miller’s aging salesman, so put upon and put down but desperately refusing to surrender to life’s blows, even as he slowly loses his mind? The reality is, in that play, Trump would be Howard, the entitled son who inherited the business from his father, and who uses (and, uses up) employees until they no longer generate enough return before casting them out to die in poverty.

The literary requirement is the tragic hero of the story must face tragedy. The audience must also be capable of empathizing with the hero as he faces his downfall, as he suffers, and of sympathizing with him as he experiences it.

Impeachment is not about suffering, nor about punishment.

In 1974, as the Watergate investigation engulfed the Nixon White House and eventually the nation, the House Judiciary Committee sought to reassure Americans that the purpose of impeachment was neither political nor punitive.

“The purpose of impeachment is not personal punishment; its function is primarily to maintain constitutional government.” 

Think of it this way: The House of Representatives is acting as a police force, striving to protect the citizenry by stopping a criminal from breaking the law, in this case, violating the Constitution. It then falls to the Senate to try the perpetrator and, if found guilty of the crimes of which he was accused, to impose sentence.

Potential grounds for impeachment include:

  • undermining the integrity of the office
  • disregard of constitutional duties and oath of office
  • arrogation/abuse of power
  • abuse of the governmental process
  • adverse impact on the system of government
  • obstruction of justice
  • defiance of subpoenas
  • violation of campaign finance law
  • allegations of self-enrichment

Can’t everyone reading this, if you have followed the news the past three years, quickly make a list of the ways Trump has brazenly committed all these offenses? Hell, we could make a party game out of it. Throw all the potential charges into a hat and the person drawing a “charge” must recite as many of Trump’s possible violations of that rule as they can before the egg timer runs out.

The aim of a potential impeachment is not to punish Trump, no matter how loudly he howls his victimization, and he will; it is to protect our way of life and rule of law.

Law is all about precedent. Sure, the Supreme Court seems diabolically tilted to the right these days, even if the headcount is only 5-4 in most cases. There have been times since the Supreme Court ruled on Roe v. Wade that as many as seven of the nine Justices were appointed by anti-abortion Republicans. Yet Roe is still the law of the land? Regardless of which side of the political aisle cast the votes for their confirmation, Supreme Court Justices seek to avoid appearing to be political pawns, even when the media whips viewers into a frenzy on the changes a potential Justice might unleash if confirmed. Would the current Justices dare overturn Roe v. Wade (a precedent which has stood for nearly 50 years) knowing full well that the next president might get to replace Justices Ruth Bader Ginsburg and Clarence Thomas, replacements which could shift the Court back left if made by a Democratic president?

The Supreme Court was designed by the founding fathers to be the final say, at least on the Constitutional interpretation of the law being argued. The citizenry retains the right to either amend the law (to a new law which passes Constitutional muster) or to amend the Constitution (so the original law passes muster). If Roe v. Wade were overturned and then reinstated in as little as two years, it would be clear the Court was a political arm of the Legislative or Executive branches and not an independent body. Regardless of the ideology of the members, and maybe this is just being naive, the Justices respect the Court enough to not let it fall in disgrace.

Precedent also applies to impeachment, although in a slightly different way..

There have only been two presidents impeached: Andrew Johnson and Bill Clinton. What do they have in common? They were Democratic presidents impeached by Republican Houses. Well, technically, Johnson was a Democrat who ran with a Republican (Abraham Lincoln) as part of a unified ticket in 1864. And it is vital to remember that in the Civil War era, Republicans (often, in the north) were the party of civil rights, with Abraham Lincoln willing to sacrifice his life to free the slaves, while the Democrats (often in the south) were the party of racism. It is like a Bizarro Superman comic of our current political climate.

Andrew Johnson assumed the presidency after the assassination of Abraham Lincoln. Republicans, controlling a 2/3 majority in the House and Senate, quickly passed the Tenure of Office Act. Johnson vetoed it, but the Republican majorities overruled his veto. The new law prohibited the President of the United States from firing members of the cabinet without the approval of the Senate. It established sort of a confirmation process in reverse. The Republicans ostensibly did not want Johnson (a Democrat they did not trust) cleaning house and removing all Lincoln’s cabinet members. That was merely a false pretense, though. Facing a huge Republican super-majority in the Senate, Johnson would have been unable to get anyone but a Republican-picked replacement through the confirmation process, likely some he found more loathsome than the current holder of the post. We heard often about a “perjury trap” when President Trump and other Republicans were refusing to testify in the Mueller investigation. Unlike the expectation to simply tell the truth providing so many scary moments for Team Trump, The Tenure of Office Act was designed to be a trap, an “impeachment trap”. Johnson took the bait.

President Johnson fired Edwin Stanton, the Secretary of War. Stanton was a fierce (and public) critic of Johnson’s and allegedly a collaborator with Congressional Republicans seeking to either force Johnson from office or to ensure his defeat in 1868. Stanton is alleged to have spied on Johnson and relayed information to Republicans in Congress, and even to have made efforts to sabotage Johnson’s efforts to govern.

Johnson was impeached by the House of Representatives in February 1868. Republicans held a 45-9 edge in the Senate as 10 states (southern states with Democratic Senators) had not been formally readmitted to the Union yet after having seceded. All nine Senate Democrats voted not to remove Johnson from office, ten Republicans joined them, leaving the final tally at 35-19 in favor of removal. That was a single vote shy of a 2/3 majority so Johnson survived.

Johnson was not, however, selected to be the Democratic nominee for the 1868 election at the Democratic National Convention that July. The slogan for the convention was, “This is a White Man’s Country, Let White Men Rule.” At least back then a voter did not have to wonder whether a political candidate was a racist or not.

Instead of allowing Johnson an opportunity for a second term, Democrats nominated former New York Governor Horatio Seymour, who lost the general election to Ohio Republican and Civil War General Ulysses S. Grant.

But here is where “precedent” comes into the impeachment discussion.

It has been written that, after this obviously partisan political attempt to remove the President of the United States from office, the two major political parties agreed that this particular Constitutional tool would only be used in actual cases of “high crimes and misdemeanors” and not as a means of pursuing obviously partisan attacks…what some today would call “Witch Hunts.” They made a “gentleman’s agreement” despite so few of them resembling gentleman.

The Democrats kept their word.

Technically, the Republicans kept theirs too, but let’s look at the details.

From the time Ulysses S. Grant took office in 1869 through Herbert Hoover’s term which ended in 1932, there were only three Democratic presidents. Each had a Democratic House, making Republican impeachment impossible. From 1931 to 1995, Democrats held the House for all but four years (1947-49 under Harry Truman and 1953-55 under Dwight Eisenhower). So, in the 126 years following that “gentleman’s agreement not to launch impeachment for purely political purposes,” there was a single Congress (1947-49) with a Democratic president and Republican House. By contrast, there were 19 Congressional terms where a Republican president faced a Democratic House majority. Clearly, it means much more that the Democrats held to their word given that 95% of the potential impeachment opportunities were theirs.

In 1995, Newt Gingrich and the Republicans took over the House majority, giving Republicans control of the lower chamber for the first time in 40 years and only the second time since the Civil War with a Democrat in the White House, Bill Clinton. Republicans began efforts seeking to impeach him almost immediately. Technically, they waited a term to formally being the impeachment process in the House while special prosecutor Ken Starr did his work, but the investigation which led to Clinton’s eventual impeachment began almost immediately. That demonstrates the Republicans had not spent a century and a quarter exercising the same discipline as Democrats had, and avoiding hyper-partisanship. They simply had not enjoyed a chance to behave badly, something they rectified the first chance they got.

Let’s debunk the reasons why Trump should not be impeached then, starting with that one?

Presidents Should Not Be Impeached for Purely Partisan Reasons

This impeachment of Donald trump would NOT be a purely partisan endeavor seeking to oust an unpopular president of the opposing party, a promise the Democrats have stuck to even if Republicans have not. Trump deserves impeachment. He has earned impeachment. One could say he must be impeached to protect our republic. But you know what, even if none of that were true and this were just a partisan hit-job, it is about time the Democratic Party stopped playing by the rules (and suffering for it) while the Republicans play fast and loose and reap the spoils.

Remember how the deal to not use impeachment as a political weapon was a “gentleman’s agreement” instead of something codified in statute? Know what else was a “gentleman’s agreement?” The filibuster. Yet when it was in their best interest to do do, Republicans forgot that “gentleman’s agreement” and Senate Majority Leader Mitch McConnell pushed through the confirmation of Justice Brett Kavanaugh (to be the swing Justice on a 5-4 Supreme Court) with only 50 votes.

Ask yourself this: Were Hilary Clinton President of the United States right now, would Leader McConnell be confirming her judges and Justices? Would the Republican House have moved to impeach her almost immediately over her emails? Democrats pulling their punches today does not ensure Republicans will not take cheap shots in the future. This is a war for the soul of America’s future, and in war, it is best to strike first.

The Senate Will Never Remove Trump Anyway, So Why Bother?

I know, Speaker Nancy Pelosi (and others) seem to think impeachment is pointless as the votes are not there in the Senate to remove Trump even if the Democratic majority in the House succeeds at impeaching him. That is not how this works, folks. Remember, in 1868, Republicans held a 45-9 edge in the Senate and still could not muster the 2/3 majority to remove Andrew Johnson. Republicans held 55 seats in 1998 and 1999, a dozen less than they needed to remove Bill Clinton. They impeached anyway. In 1974, Democrats held 56 Senate seats and House Democrats were proceeding with the impeachment of Richard Nixon anyway. As the Nixon impeachment process rolled along, and as it became clear that Nixon had committed multiple crimes and impeachable offenses, enough Senate Republicans indicated they would have to side with Democrats to remove Nixon if it came to a vote. Nixon resigned.

The House Needs Time to Gather All The Evidence First

Speaker Pelosi (D-CA) and House Judiciary Committee Chairman Jerrold Nadler (D-NY) have both made that case for delaying the impeachment process while more information is gathered so the case is iron-clad when it comes time to impeach. Pelosi said in July, “We will proceed when we have what we need to proceed — not one day sooner.” At the same time, Nadler remarked, “To do so, the House must have access to all of the relevant facts and consider whether to exercise its full Article I powers including a constitutional power of the utmost gravity — recommendation of the articles of impeachment.” Congresswoman Susan Wild (D-PA), a veteran litigator before winning a House seat in 2018, said, “You don’t want to try a case where the facts are not all lined up and you’re not ready with the evidence you’re going to introduce.” Again, that is not how this works, folks.

The impeachment process can be a valuable tool to uncover evidence of a crime. Take the Nixon investigation as an example. The House knew a crime had been committed (the break-in at the Democratic offices in the Watergate Hotel) and that perhaps Nixon was involved in the subsequent Watergate cover-up, even if he could not be conclusively linked to the break-in. The House Judiciary Committee (the same Committee Nadler now chairs) subpoenaed White House tape recordings. Nixon refused, as Trump has with most House subpoenas for documents from his White House so far. Nixon instead released typed transcripts of the tapes that were clearly edited, some to the point the conversations made little sense. A subpoena from the special prosecutor, demanding the original tape recordings, was ordered by a judge to be complied with. One tape contained Nixon authorizing the CIA to intervene and shut down the FBI’s investigation into the Watergate break-in and possible cover-up. It was this evidence which turned even Republicans against Nixon and ensured his presidency was finished one way or another. The House Judiciary Committee did not begin the hearings with all the evidence. The evidence accumulated as the hearings progressed.

Trump and His Team Will Not Respond to Subpoenas or Will Just Provide Worthless Answers

It is important to look at recent special counsel investigations (Trump). And past ones (Bill Clinton). They are linked in an interesting way.

Take a look at the Mueller investigation, specifically the responses from President Trump. How many different ways can someone “not recall” or “not remember” or “have no recollection?” At least Trump had a brief list of questions. During his questioning on the Iran-Contra scandal (and cover-up) trial of national security adviser John Poindexter, former President Ronald Reagan said, “I don’t recall” or “I don’t remember” a total of 88 times. Since no one can get into someone else’s head (at least not yet) and know for sure what they remember and what they don’t, these type of responses have become standard issue for avoiding potential “perjury traps” Trump and his fellow Republicans fear so much.

Complicating matters are the Department of Justice guidelines on perjury. Let’s take the tweet below as an example.

OK, so former Trump campaign chairman Corey Lewandowski made two statements (under oath) that directly contradict each other. As Legum notes, either he lied then, or he is lying now. Lying under oath is different than perjury.

The Department of Justice statutes require that false statements must be offered “knowingly” and “willingly” for a perjury charge to be warranted. The person giving testimony would need to “know” their testimony was false. If they were confused, or if they made a mistake, or if their memory was faulty and they recollected incorrectly, they did not commit perjury. The state must also prove the person giving testimony deliberately volunteered false testimony. In other words, if they “believed” their testimony to be truthful, even if it turns out they were lying, the standard is not met.

Since President Trump has told more than 12,000 lies since taking office, it can be reasonably accepted that many of those potentially on a witness list for a Trump impeachment hearing will have no idea if what they are testifying to is truth or not. Remarkably (and, sadly), the cloud of confusion caused by Trump’s 12,000 lies might provide cover for his associates from perjury charges as they may be rendered incapable of distinguishing truths from lies.

So how does that not seem like an argument against impeachment? Simple. Donald Trump thinks he is smarter than anyone. Mueller. Nadler. Pelosi. There is not a room Trump enters where he does not think he is the smartest guy in the room. Bill Clinton thought the same thing. Except likely, Clinton probably was in many cases. Georgetown, Oxford, Yale Law. Trump is not. Yet Clinton still got tripped-up by his efforts to outsmart the other side. See, Bill Clinton knew his affair with Monica Lewinski was going to come up when he was under oath. He and his lawyers sought to find just the right terminology where he might offer a defense to the adultery accusation without lying under oath. As Lewinski had performed oral sex on Clinton, Clinton and his attorneys felt it was safe for Clinton to make his now-infamous statement, “I did not have sexual relations with that woman, Ms. Lewinski.”

Maybe he should have said “intercourse” instead of relations, because even though more than 80% of young adults surveyed also do not think “oral sex” is “sex,” the choice of words ensnared Clinton. A judge (appointed by George H.W. Bush) disagreed with Clinton’s definition of “sexual relations” and found Clinton in contempt of court for lying about the nature of the relationship. And most importantly, because the testimony had been discussed beforehand by Clinton and his attorneys in the context of a deliberate intent to deceive, The House of Representatives had not only “knowingly” covered in an impeachment charge for perjury, but “willfully” as well.

Are we to believe that a man like Trump who has told more than 12,000 lies just in public statements in the last three years, has not told a single lie in any sworn statement during that period? And since Trump is a habitual liar AND he and all the Republicans around him are so deathly afraid of being ensnared in a “perjury trap,” would it not seem likely that if there was a lie to be told under oath, it was discussed and vetted by Trump attorneys beforehand?

When she held President Clinton in contempt, Judge Susan Webber Wright wrote,

“Sanctions must be imposed, not only to redress the president’s misconduct, but to deter others who might themselves consider emulating the president of the United States by engaging in misconduct that undermines the integrity of the judicial system.” 

Clinton’s Approval Ratings Rose After Impeachment. Don’t Democrats Risk the Same By Impeaching Trump, and Is That Wise in An Election Year?

Yes, Clinton’s approval ratings went up. Yes, to many he was a sympathetic figure (a tragic hero brought down by his own flaws, perhaps?) despite his sexual proclivities and his perjury. The key thing to remember is that Bill Clinton was impeached after the midterm elections in his second term. He did not have to face a re-election bid. And despite a booming economy and as close to a balanced budget as we are ever likely to see again, Clinton’s Vice President Al Gore (D-TN) failed to hold the White House in 2000 while Republicans managed to maintain control of the House and Senate (although by slightly smaller majorities).

Let me see if I have this straight: voters punished Republicans for their overreach in impeaching Clinton by giving them complete control (White House, House, and Senate) for only the second time since the Depression? Sure, Democrats would not want that to happen to them.

And remember, when Republicans impeached Andrew Johnson (in the last year of his term), Johnson failed to secure the Democratic nomination and the Democrats lost the election, giving Republicans complete control (White House, House, and Senate) then too.

Richard Nixon resigned after the midterm election in his second term, so like Clinton 25 years later, Nixon would not have stood for re-election even if he were not removed from office. His successor, Gerald Ford (R-MI) lost his re-election bid to Jimmy Carter (D-GA) in 1976.

So no, there is no precedent for what Trump is facing. No president has ever faced impeachment and then had to face the voters. And what do those approval polls from the Clinton era really show?

Bill Clinton’s approval rating hit 64% midway through his first term. He was consistently in the low 60’s in late 1998, just before his impeachment began. Clinton’s approval rating twice his 73%, in December 1998 (just after the House moved to impeach him) and February 1999 (just before the Senate voted to acquit him). Two polls were taken the week of the 2000 election, as his second term was ending, which had his approval ratings at 63% and 64% respectively, just like they were 6 years prior.

Donald Trump’s approval rating right now is 43%. Exactly how much do people think his numbers will rise if he is impeached? Also, as noted at the beginning, Trump has been playing the persecuted victim all his life and took that to a new level when he announced a run for the White House. How much more sympathy is out there among voters if 2020 turns into another year of Trump tweeting daily about witch hunts and partisan persecution?

Democratic strategist Don Calloway said prior to the 2018 midterms that, “I don’t think we should impeach in general. I think that impeachment emboldens the ‘deplorables,’ and folks will come out, in a way, against Democrats.” Joy Reid had the perfect rebuttal.

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Look, every last Trump supporter is going to come out and support Trump in November of 2020. And impeachment or anything else the Democrats do is not going to turn new people into Trump voters. If anything, the behavior of Trump and his cadre of criminals during an impeachment process would turn more people into anti-Trump voters. Trump’s approval ratings (currently in the low 40’s) represent his ceiling, and Democrats need to stop fearing Trump (and his dwindling base) and get busy doing the job they were elected to do (and took an oath to do):

Uphold the Constitution of the Unites States of America.

What About Brett Kavanaugh? Can He be Impeached Too?

There has been much discussion in recent days about impeaching Supreme Court Justice Brett Kavanaugh for lying during his confirmation hearing. Here’s the thing: no matter how many credible accusations pour in, and no matter how many people believe those credible accusations, the bar to prove perjury is set at an almost unreachable height. As disgraceful as it may be, Kavanaugh’s bad drunken behavior provides him a shield against a perjury charge. He can claim that he did not “willfully” lie under oath about the events during his confirmation hearings, rather the evidence now confirms he was simply too drunk to remember having committed such terrible acts. The statute of limitations has passed on all the alleged sexual assaults. That he was too drunk to remember absolves him of perjury. Yes, it is sickening. Being drunk would not preclude a rape charge (if the crime was within the statute of limitations) but being too drunk to remember raping would preclude a perjury charge.

Only one Supreme Court Justice has ever been impeached, Samuel Chase, who bore the awful nickname “bacon face” due to his ruddy pinkish complexion. Despite a 25-9 Senate majority for the Democratic Republicans pursuing the impeachment in 1805, none of the charges reached the 2/3 majority needed to remove Chase from the bench. The case also set precedent. As all the charges related to conduct on the bench, and as he was acquitted, former Chief Justice William Rehnquist opined nearly two centuries later that the case stet a precedent which still stands, “a judge’s judicial acts may not serve as a basis for impeachment.” No Supreme Court Justice has been impeached since Chase, and only 8 federal judges of any type have been impeached, all for criminal conduct outside the scope of their judicial duties.

The bottom line is, Kavanaugh cannot be impeached for the things he did prior to his confirmation to the Court, up to and including lying at his confirmation hearing, without a “smoking gun” proving he “knowingly” and “willfully” lied. He was a Republican insider during the Clinton impeachment who pushed prosecutors to be as graphic as possible in the questioning of Clinton over the Monica Lewinski affair hoping to either rattle Clinton or force him into a lie. Kavanaugh certainly would have made sure he was not going to get caught in a mousetrap he designed.

And he cannot be removed for conduct that falls within the scope of his duties on the Court based on former Chief Justice Rehnquist’s view of precedent. Unless he commits some crime in his role as private citizen that impairs his ability to serve on the bench, he is likely safe from impeachment.

Finally, someone on Twitter suggested to me as I was compiling information for this article that the cases of Kavanaugh and Clinton were remarkably similar, and that since Democrats had voted to allow Clinton to remain in office despite clear evidence of his perjury, they effectively forfeited their opportunity to remove Kavanaugh even if such a charge could be proved.

Sorry, no.

Bill Clinton may have committed adultery, but any sexual interaction was consensual, even if wildly inappropriate given the age and power differentials and that they were boss and subordinate in a workplace.

Brett Kavanaugh is accused of raping women and sexually violating them in other ways against their will (or while they were unable to consent).

Bill Clinton lied to keep his job another 23 months.

Brett Kavanaugh lied to get a job he can easily keep for the next 23 years, maybe more.

Similarities? Sure. I found one.

Republicans violated the House rules in 1998 and 1999 by impeaching Clinton in one Congress and trying him in the next. And Mitch McConnell violated a century-long “gentleman’s agreement” in the Senate by confirming Brett Kavanaugh with only 50 votes.

Look, regardless of what path towards or away from impeachment the House takes with President Donald Trump, the solution to the Brett Kavanaugh issue is simple: vote Democratic in November 2020. Put a Democrat in the White House. Put a Democrat leading the Senate. Replace Justice Ginsburg (when she is ready) with someone so liberal he/she will make the ‘Notorious RBG’ look like a conservative in retrospect. Then maintain that control long enough to replace Clarence Thomas with another ultra-liberal. Remember, it only takes 50 votes now to confirm a Justice thanks to Mitch McConnell. Kavanaugh can remain, his name and reputation forever stained, and he can write the minority opinion on every case for the next three decades.

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