With the Democrats taking the House of Representatives in the midterm elections, many have begun to question whether that could lead to the impeachment of President Trump. It’s possible, but many large obstacles remain.
Step 1: Recognisable crimes
Article II, section 4 of the United States constitution sets the base legal standard. The president “shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanours.”
One impact of the midterm elections is that President Trump will no longer be immune from meaningful congressional oversight and investigation. The Democrats will control the investigatory committees of the House of Representatives, with the subpoena power that goes with it, and they have declared intentions to use it.
Robert Mueller’s investigation continues to plod forward. Potential referable charges include Russia collusion-related crimes, obstruction of justice, and financial crimes similar to those that ensnared Trump’s campaign manager, Paul Manafort, and Trump’s personal attorney, Michael Cohen.
Should sufficient evidence of criminal conduct be found, this phase could culminate in the House Judiciary Committee drafting and voting on potential articles of impeachment for consideration by the general House of Representatives. The impeachment process for Richard Nixon reached this point, with the House Judiciary Committee, in late July of 1974, passing three articles of impeachment for general House consideration. Nixon’s resignation less than two weeks later rendered the process moot.
Step 2: Impeachment by the House of Representatives
Article I, section 2 of the constitution provides that the House of Representatives “shall have the sole power of impeachment.” The House can impeach the president on a simple majority vote. Thus, the new Democrat majority in the House of Representatives could, in theory, have the raw power to impeach President Trump.
However, impeachment is not removal from office. It is merely referral to trial. Bill Clinton was impeached in 1999 on charges of perjury and obstruction of justice, but the Senate acquitted him of those charges. Impeachment, by the House, is akin to an indictment in a traditional criminal proceeding.
Step 3: Trial by the Senate
Article I, section 3 of the constitution makes clear that the “Senate shall have the sole power to try all impeachments.” It also states that the chief justice of the Supreme Court “shall preside” over the trial. Historically, however, the chief justice’s role has largely been ceremonial and advisory.
The case against the president is presented by whatever rules the Senate chooses for the occasion. In Clinton’s case, some members were appointed as “managers” who effectively acted as prosecutors. Clinton had his own attorneys who presented his defence.
The Senate is the “jury,” and it ultimately comes down to the jury’s vote. The constitution requires a two-thirds vote to convict. In Clinton’s case this standard was not met, as the Senate voted 55-45 in favour of acquittal on one charge and 50-50 on the second charge.
With the Republicans expanding their majority in the Senate from this week’s midterm elections, many Republican senators would have to support the conviction of a Republican president.
Never in American history has a president been removed from office via the impeachment process. In 1868 it nearly happened with President Andrew Johnson, who was impeached but dodged conviction in the Senate by only one vote.
Nixon would likely have been impeached and removed by conviction had he not resigned first.
The attempt to impeach and convict Bill Clinton is illustrative of the dangers in overreaching. The push by Republicans to impeach him was unpopular, with Republicans losing seats in both House and Senate in the next election.
Democrats in the House of Representatives are likely to keep that lesson in mind and seriously push for impeachment only if overwhelmingly supported by the American people. Such powerful support does not yet exist. Trump remains dauntingly popular with his core group of zealous fans. This base is unfortunately quick to believe any “alternative facts” or allegations of “fake news” presented to them by Trump.
For impeachment to succeed, new facts, including strong evidence of criminal scandal, must emerge and shift the opinion of many more Americans against Trump. That is now more possible with new investigatory powers of Democrats in the House. However, until such events actually do unfold, impeachment of President Trump remains unlikely.
Modern impeachment is more a political process than a legal one and the most important venue is the court of public opinion.
Keith Barber is a retired attorney, constitutional expert and former army officer living in Florida