Donald Trump should be impeached. At least this is the sentiment of the most partisan Democrats and across the social media chatter even though he has barely been in office two months. But has President Trump done anything that is or likely would constitute an impeachable offense? The answer is that it depends, but simply put, if he has committed offenses at least as serious as what Bill Clinton was impeached for then the answer is yes, but it is still too soon to tell.
What does it mean to impeach a president of the United States such as Donald Trump? There is a lot of popular confusion over the term. Article II, section four outlines the process for impeaching and removing a president from office. It declares that the president, vice-president, and other civil officers of the United States can be removed from office by “impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” Removal of the president is a two-stage process. First a major of the House of Representatives must agree on one or more articles of impeachment. If that happens, the House then appoints a committee to lead the prosecution of the articles. The Senate then must hear the articles of impeachment in a trial-like proceeding over which the Chief Justice of the Supreme Court presides. It takes a two-thirds vote of the Senate to convict and if that happens, the president is removed from office. Think of House impeachment as similar to indicting one for a crime of which then the Senate is a trial to determine guilt.
What would Trump have to do to constitute an impeachable offense? Article II, section four lists three possibilities. Treason is the first, and the Constitution defines that to be engaging war against the United States or giving our enemies Aid and Comfort. Treason is a high bar to meet, really historically requiring something where it involves military action or issues that directly address national security. So far there is no indication that this is what Trump has done and thus this is an unlikely impeachable offense.
The second possibility is bribery. Bribery would be accepting payments in return for the performance or conveyance of government services or favors. Given Trump’s extensive business holdings and refusal to divest himself of them, there is a possibility that the conflicts of interest that he personally has could rise to a constitutional level problem that would merit an impeachable offense. For example, allegations of Russian business connections and how they might be impacting Trump’s foreign policy decisions might be a form of bribery.
Finally, there is the phrase high crimes and misdemeanors? What does that mean? In adopting this phrase the constitutional framers employed language that had existed in England since 1386 when the Parliament used the term to refer to a variety of actions including the misappropriation of funds or dereliction in the performance of official duties. Mal-administration comes to mind as a close meaning, although when that word was proposed at the Constitutional Convention by George Mason, James Madison objected to it and substituted high crimes and misdemeanors in its place.
An alternative meaning for the phrase was offered in 1970 when the House of Representatives tried to impeach Supreme Court Justice William Douglas. The Congressman Gerald Ford said an impeachable offense was “whatever a majority of the House of Representatives considers it to be at a given moment in history.” In truth, Ford is correct–impeachment is a matter of political judgment where Congress ultimately decides the fitness of a person to serve in office, such as president.
There have been three serious efforts to impeach presidents of the United States. In 1868 the House voted on 11 articles of Impeachment against President Andrew Johnson. The core of the charges were allegations that Johnson illegally removed Secretary of War Ed Stanton in violation of the Office of Tenure Act. Lurking behind this impeachment were political fights over how Johnson–a southerner–was going to support the Reconstruction agenda of the Republicans in Congress. Johnson survived removal from office when his conviction in the Senate fell one vote short of the two-thirds requirement.
Richard Nixon was the second president where there was a serous effort to impeach. In 1974 the House Judiciary Committee recommended three articles of impeachment against the president-- obstruction of justice, abuse of power, and contempt of Congress–arising out of Nixon’s refusal to cooperate with them and the special prosecutor in terms of the investigation surrounding the Watergate break-in. Nixon opted to resign instead of facing an impeachment vote. All these charges represented serious claims about a president breaking the law and refusing to cooperate with a criminal investigation. They also spoke to clear abuses of presidential power.
Finally in 1998 the House voted two articles of impeachment against Bill Clinton–perjury and obstruction of justice–arising out of investigations into his sexual relationship with white House intern Monica Lewinsky and the sexual harassment law suit filed by Paula Jones against him. The Senate acquitted him, mostly along a straight party-line vote. For some, the charges were partisan and political and less having to do with Clinton’s real performance as president but for others there was real evidence of lying under oath that merited removal.
In the two cases where the House actually voted on Articles of Impeachment partisanship or political differences seem to be at the heart of the charges. With Johnson arguably there were also questions about mal-administration, but it is hard to argue that with Clinton. Perhaps the most serious charges of impeachment were against Nixon, and not surprisingly they garnered bipartisan support.
So how does all this apply to Trump? So far his presidency has been marked by either non-or mal-administration. It has largely been ineffective in getting much done, and it is mired in a host of controversies that include allegations of Russian involvement in his campaign and perhaps administration. An FBI investigation may clarify these allegations. There are other concerns too about his competence and fitness to be president. All of these are possible grounds that constitute high crimes and misdemeanors, yet it will take a lot to convince a Republican House and Senate of that. However, if history is a guide, the allegations against Trump are at least as bad as those against Clinton, and if the FBI investigation yields more proof, or if Trump remains the ineffective president his is starting off to be, impeachment is a possible remedy.