Since the day America elected President Trump, some un-informed, over-wrought, anti-Trump elements have been gnashing teeth, whining, and calling for a Trump Impeachment. Impeachment doesn’t happen just because a segment of society doesn’t like a President, or because a group is unhappy with an election outcome. Trump’s unusual conduct and practices don’t mean Congress can impeach him. Impeachment is a very serious legal, Constitutional process to remove a sitting President. There is a political element to Impeachment, but in the end, it is a drastic remedy for which there must be NO question that the President has engaged in criminality. Short of that, Impeachment would result in riots or worse.
How does America impeach a President? Articles of Impeachment are essentially the indictment and charge, and those arise from the House of Representatives … the people’s house. The President then gets a full trial in the Senate, where the Senate needs 67 votes to remove a President for high crimes.
It is an extraordinary act to bring Articles of Impeachment against a President. It is even harder to convict and remove a President. The founders made this process hard so that impeachment was not a matter of course for a disappointed country.
Bill Clinton lied under oath and lied to the American people. His perjury ultimately led to his home state disbarring him as a lawyer. The House impeached him, but the Senate would not convict and remove him. Why? Impeachment overturns an election, and while Articles of Impeachment rightfully notice conduct worthy of removal, the proper penalty is not always removal.
America is talking about impeachment as if it is normal, possible, and likely, or even inevitable.
Impeachment is none of those things. Much of the buzz around Impeaching Mr. Trump comes from partisan yahoos who hate him. Elected partisans from safe districts feed that buzz to fire up their constituents, raise money, and further wound the President. That might be good politics for them, but it doesn’t really bring us closer to impeachment.
Likewise, the internet is hyperventilating about Trump’s alleged Obstruction of Justice through firing Comey and then purportedly telling the Russians he fired the “Nutjob” to take heat of the Russia Investigation. That’s bad. That’s stupid. But it doesn’t mean it is criminal, as I will discuss below.
We are thousands of miles away from the House Impeaching Trump, and we are millions of miles away from the Senate convicting and removing him. Just keep repeating that truth and it will keep you grounded.
I am writing an article on impeachment; however, so we are certainly in territory we have not been since Mr. Clinton. That territory, right now, is swirling talk about alleged Presidential wrong-doing. If we are going to talk about it, we should examine how it might happen at the intersection of law and politics.
Here are scenarios for Congress Impeaching President Trump.
In my opinion, while the US has a Republican Congress and a growing economy, the House won’t bring articles of impeachment unless the FBI, Special Counsel, or one of the Congressional Committees brings hard evidence of criminal conduct by the President or criminal conduct carried out with his knowledge and consent. It is possible that the House could bring impeachment articles too if an investigative body proves criminal conduct and the President’s knowledge of it and active efforts to conceal it. In my opinion, this is the most likely scenario for House Impeachment.
Here is the rub. We need to find criminal conduct. Without that criminal conduct, of severity and consequence … a high crime … you won’t even get impeachment articles, let alone a trial and conviction in the Senate. It’s not going to happen.
As of May 3, 2017, there was no evidence of collusion between Trump and his campaign with Russians to interfere in the election. Two US Senators, one a hard-core liberal, confirmed that at an open meeting. In fact, they confirmed that Trump’s assertion that he was not under FBI investigation was true. That’s remarkable, really, as we continue to discuss his “impeachment.”
As liberal law professor Alan Dershowitz explained, Congress won’t impeach Trump for firing Comey. Trump has a Constitutional right to fire him for no reason or any reason. If Mr. Trump thinks Comey is a Nutjob, he can fire him. He can fire him if he thinks Comey is the best and smartest Director ever, but he really doesn’t like him or want to work with him. And, here’s the kicker, he can fire Comey even if he wrongly believes it will take some of the heat or pressure off the Russian Investigation. Read that line again … because it is this line where I lose the partisans.
The President can fire an FBI director, and even direct him to stop investigating a certain subject matter if the President wants. The FBI Director works for the DOJ, which is headed by and answers to the President. Here is the point of confusion for many Americans. If the President fires Comey to hide his criminal activity or the criminal activity of another, that act of firing may give rise to a charge of obstruction of justice, which certainly would be grounds of for bring articles of impeachment.
However, if the President has committed no crime, and is not aware of any of his lieutenants committing a crime, but he is tired of an investigation he thinks is bogus, a waste of resources, and baseless, he can fire Mr. Comey … and yes, he can direct the DOJ to shut down that investigation. Read that over and over and over again.
Doing so may look bad, and it may be bad politics. It may be the appearance of impropriety. It may give people little confidence in the President too. However, firing an FBI director or even directing an investigation to be closed is NOT, by itself, an impeachable offense … if the investigation has no evidence of a crime or efforts by the president to knowingly conceal a crime. That is where we have lost the media, some lawyers, and nearly all partisans.
Would I advise any President to do that? No. Would I think it smart for this President to fire Comey and then purportedly call him a nutjob to anyone, particularly the Russians the next day? No. Would I want the president, as my client, to say he canned the FBI director to take the heat of the Russian investigation? Of course, I would not. Do I understand why that looks bad and why it looks like obstruction of justice? You bet I do.
It’s not obstruction of justice, however, if there is no underlying crime or if the President has no knowledge of the crime. In short, you have to prove the President’s actions in firing Comey were to hide criminality and were done so with Trump’s knowledge and intent to hide that from investigators. Good luck.
When talking about impeachment, however, we must look at the process as both political and legal. Because it is political and legal, the President’s own party is not going to bring charges … that is articles of impeachment … unless there is clear criminality and a path to conviction. You can call that prosecutorial discretion, if you like. However, that is the right standard. Right now, we have neither criminality nor a means to convict.
If the Congress were to flip in 2018, however, we would have a democratic Congress, and they might bring such charges without a clear path to conviction. First, the Democrats might think doing so would hurt the President and his political and policy objectives. The President is very unpopular; though not as unpopular as some on the left believe. Still, if the House flips, the lesson for Democrats will be that Mr. Trump was so unpopular, he cost his party the House. And, if the House flips, those Democrats will want to increase pressure on the President, and take the action their constituents want, which is Articles of Impeachment. You can bring Articles if the evidence is weak … but you still have to convict in a trial.
Bringing articles of Impeachment alone doesn’t remove a President. The case will have to be both legally strong and politically palatable to get a conviction. Trying to find 67 Senate votes for a conviction will not be easy if the facts are not strong and clear. In January of 2019, it is still more likely than not that the Senate will be Republican. Even if the House flips, the Senate map is so unfavorable to the Democrats, that in the best scenario, they get the senate with a very narrow majority. That means that to convict the President they would still need to find 13-16 Republican Senators willing to convict.
Make no mistake; Mr. Trump has plenty of GOP Senators who would vote against him in an impeachment trial if there is clear, unmistakable evidence of criminality. In fact, I would hope every US Senator would do that “if” the evidence of a high crime was clear. However, if the House builds a case on the appearance of impropriety, and not air-tight evidence, getting 67 votes to remove a President won’t be easy. In the end, the jury is not the 67 Senators, it is the American public. They will never permit or accept removal of a President without clear, strong, irrefutable evidence. How many facts based in a political dispute are “irrefutable” these days?
One scenario might go like this. The House flips democratic and brings articles of Impeachment. Those articles fall on a nearly party-line vote. However, some anti-Trump or moderate GOP House members who think it in their political interest also vote for the articles. Now, the trial heads to the Senate. The case is close. Word leaks after the trial that 8-10 GOP members might vote for Impeachment. Welcome to a resignation scenario. Indeed, in my opinion, many think the resignation scenario is the most likely.
I don’t think Trump likely ever resigns. If the case is going to bring 90+ Senators to Impeach, maybe he resigns. However, without a count well-above the required number, I see Trump fighting to the end, and to hell with the Republic. That’s been Trump’s strategy since his announcement. Frankly, without a clear case, he should fight to the end because removal of a President is an extraordinary remedy, and Americans ought not set up a system where Impeachment becomes a recall.
Ironically, the best scenario for impeachment is this. The FBI, Special Prosecutor, and the Senate Committee all uncover hard, nearly irrefutable evidence of criminality and knowledge by the President. The GOP House brings the Articles, and the Senate convicts, overwhelming, all in GOP control.
When I say that is the “best” scenario … I mean that is the best scenario to avoid riots and war. It’s a terrible scenario for our country to impeach and remove any President. No one should want it, even a President’s most dedicated political opposition.
Impeachment indicts us, for we elected a criminal. Impeachment weakens our country, even if it strengthens a party. Impeachment overturns an election. This is why impeachment is never preferred, not easily brought, and why the Founders designed it to be hard to convict a President.
We are so far away from impeachment right now, and the American people need to understand that and be thankful for it. Mr. Trump’s conduct is erratic. He says and does things impetuously, foolishly, and to his and our detriment. We knew that when we elected him. That’s on us. None of that is a reason for or would support Congress impeaching him.
This President is not likely to be impeached and removed by Congress. Deal with it.
However, if the President has engaged in criminal activity that we can prove, Congress should impeach him. I will call for it too … when I see actual evidence of a high crime or the President’s knowing effort to conceal a high crime. Right now, I see Trump. I see the same Trump I didn’t support. I see the flawed Trump, the buffoonish Trump, and the loud mouth Trump. I see a 70 year-old billionaire executive who says and does what he wants, and doesn’t give a damn about me, you, or anyone else. I see a guy who is President … my President … but no Presidential.
I have seen lots of bad political moves, horrible leaks, hasty decisions, and impetuous acts. I hear and read many allegations. What I have not seen yet is any evidence that the President has committed a crime, knows about crimes committed on his behalf, or has acted to stop an investigation that would have otherwise uncovered those crimes. Ironically, Trump’s firing of Comey may be far less sinister than his political enemies believe. He may have fired Comey because Comey made a spectacle out of the FBI command … and Comey is pursuing a leak ridden investigation designed to hurt the President when the President has done no wrong. That possibility is just as likely as any other.
The Trump Impeachment Scenarios are weak right now. Absent hard evidence of high crimes, we remove Presidents though an election, not by impeachment.
Author: Richard Kelsey
Richard Kelsey is the Editor-in-Chief of Committed Conservative.
He is a trial Attorney and author of the new book on higher education, “Of Serfs and Lords: Why College Tuition is Creating a Debtor Class”
Rich is a former Assistant Law School Dean and Law Professor. At Mason Law Kelsey conceived of, planned, and brought to fruition Mason’s Center for the Protection of Intellectual Property, known as CPIP, drawing on his expertise as a former CEO of a technology company specializing in combating cyber-fraud.
Before returning to private practice, Rich taught legal writing and analysis and an advanced litigation seminar. In 2014 he was elected by the graduating class as the faculty speaker at their graduation.
He is a regular commentator on legal and political issues in print, radio and on TV. Rich has appeared on hundreds of stations as a legal expert or political commentator. He provided the legal analysis for all stages of the Bob McDonnell trial and appeal for numerous outlets including NPR and WMAL.
Rich also writes on occasion for the American Spectator and CNSNews.com.
In his free time, Rich is part of the baseball mafia of Northern Virginia, serving on numerous boards and as a little league and travel baseball coach.
His Twitter handle is @richkelsey.