The Constitution and Coming Impeachment of Donald Trump

Please note: This is a preview of a talk I will give on Tuesday, May 16, 2017 for Stand Up Minnesota.  Click here for more information.


If in fact President Trump removed FBI director James Comey to impede his ability to investigate
 possible Russian interference in US elections, then Donald Trump should be impeached.  He should be impeached because this is obstruction of justice, a crime meriting presidential removal from office according to the Constitution.  But even beyond the Comey dismissal, there are many reasons that could justify impeaching Trump.  The issue is not if he should be impeached but when, and the when depends on the point when Congressional Republicans think Trump is such an anchor for their party that he impedes their political agenda, party, and electoral prospects in 2018.

From day one of his presidency, Democrats have contended for Trump’s impeachment, yet it was no clear whether he did anything meriting impeachment.  Mostly the calls were political sour grapes.  But with the Comey firing we are in a new realm–commission of a felony–something at least as serious as the grounds for the impeachment of Bill Clinton who lied about his sexual behavior.  So what grounds are there to impeach Trump?  The Constitution provides a starting but partial answer.

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.  It is possible that his campaign’s or staff’s collusion with the Russian government is treason but we do not know that yet.  That is why there was the FBI investigation and therefore efforts to impede it might be efforts to obstruct justice.

 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.  Mal-administration is not simple policy disagreement or even sloppy administration, it needs to rise to perhaps a constitutional level, perhaps even including something approaching gross negligence and dereliction of duty.

 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.

The House could reasonably conclude that the Comey firing was obstruction of justice as a grounds for impeachment.  They could also conclude that if Trump tries to hinder a congressional investigation of his Russian connects, that it too is an impeachable offense in that in interferes with the constitutional powers of Congress.  But there are other grounds for impeachment.

Article I, Section 9, Clause 8 of the United States Constitution states that “no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”  The emolument clause was added to the Constitution out of fears of foreign interference with the US government.  If Trump is receiving directly or through his business holdings money or other benefits from another government, such as a state-owned enterprise, that could be an emolument violation, constituting either bribery or another constitutional violation that could be seen as a high crime or misdemeanor.  Whether all this is factually accurate we do not know and the FBI investigation in part was aimed at answering these questions, thereby making his firing an effort to obstruct justice.

Finally, so far the Trump 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 have rendered his administration unfit to govern.  He is putting US governance in danger, suggesting that it would not be wrong for Congress to decide that his very impotence and incompetence merits impeachment.

Of course whether impeachment will happen is up to the Republicans.  Unlike with Nixon in an era where bipartisanship still existed, so far Republicans are largely behind Trump.  It will not be until he is so politically embarrassing and damaging to the party that he needs to go.  Trump has already done worse than what Clinton did to merit impeachment, and what he has done is potentially rising to the level of what Nixon did. The issue then seems to be not whether he should be impeached, but when.