Since the embarrassing impeachment and failed conviction of President Andrew Johnson in 1868, Americans more or less had avoided that ultimate constitutional method of removing a chief executive from power. The Johnson impeachment had been so steeped in personal hatred, political rivalry, and post-war agendas that the failure by one vote in the Senate to remove the impeached Johnson more or less discredited the process for a century.
The 1974 Watergate impeachment inquiry saga was framed in opposition to the way Johnson had been impeached, inasmuch as anyone still remembered the particulars of that long-ago fiasco. That is, a special prosecutor, first Archibald Cox and then Leon Jaworski, was appointed to investigate the break-in and the so-called Watergate cover-up.
Democratic moderates like Representative Peter Rodino (D-N.J.) and Senator Sam Ervin (D-N.C.) gave the impeachment inquiries a patina of bipartisanship, both giving time for the targeted president’s defenders to produce witnesses and conduct cross-examinations. Neither released the phone records of their political counterparts on their respective committees. By the time a now-unpopular Richard Nixon resigned in August 1974 to avoid impeachment by an impending overwhelming vote, he had lost public support and gained bipartisan congressional opposition.
Bill Clinton, unlike Nixon, but like Johnson, was both impeached and acquitted in the Senate. Like Nixon, he had easily won a prior reelection (1996). But, unlike Nixon, Clinton was still reigning over a booming economy and enjoyed relatively high popularity—at least on poll questions other than character and morality. Independent counsel Ken Starr, like Leon Jaworski, found Clinton likely to have committed felonious acts. Indeed, he was impeached on grounds of obstructing justice and perjury by the full House on a mostly partisan vote, which nonetheless saw a handful of both Democrats and Republicans respectively cross party lines.
Prior to the December 1998 impeachment, the Republicans had lost congressional seats the month before in the November election—seen at the time as an ominous warning from the country not to impeach Clinton for lying (largely about adultery) at a time of economic vibrancy. The Republican-controlled Senate did not even get 51 votes on either count of perjury or obstruction, given that sizable numbers of Republicans (respectively five and then 10) voted for acquittal on the two counts.
After these two modern impeachment efforts, certain impeachment lessons have emerged, given that still no president in the history of the United States has ever been impeached, convicted and removed from office.
Criminalization of Policy. The alleged crimes to launch impeachment must not be criminalization of normal presidential behavior. To impeach Trump for quid pro quo “bribery” and obstruction of justice, Trump must have done something far more egregious than what other presidents have done.
If Trump thought about permanently holding lethal aid to Ukraine in exchange for the Ukrainians pressuring their prosecutors to look into the 2016 election and Biden corruption, there must be some standard that such thoughts of leveraging aid for political gain are singularly impeachable.
That would mean, for example, Barack Obama did not alter U.S. foreign policy to America’s detriment by canceling plans of missile defenses with the Eastern Europeans, in exchange for Vladimir Putin not to flex his muscles during the Obama reelection campaign and thereby discredit Obama’s reset policy with Russia—all to his personal gain in the 2012 election. But that is exactly what happened: Putin put off invading former Russian states until after Obama was reelected, and Obama canceled missile defense.
Likewise, Vice President Joe Biden, acting as the president’s personal emissary for Ukraine, bragged on tape that he had threatened to cut off even non-lethal aid unless the Ukrainians fired prosecutor Viktor Shokin, who later testified in a court affidavit that he was at the time looking into wrongdoing by Bursima and Hunter Biden’s role while on its board. Shokin in Biden’s own words was fired, and only then was aid restored.
Rule I. Impeachment is not credible when it involves criminalizing a president for thinking about doing what other presidents have routinely done. A president should be specifically impeached on the basis of evidence that shows he committed “high crimes and misdemeanors” or “treason” or “bribery.”
Bipartisanship. Nixon was finally facing certain bipartisan impeachment because by summer 1974 Republicans were worried about the upcoming fall midterm elections, the tanking economy, and Nixon’s toxic tailcoats, and thus began to abandon him. In contrast, Clinton was impeached largely on a partisan vote, although five House Democrats joined Republicans.
Yet in both impeachment inquiries, there was no rush, no denial of equal access to cross-examinations and witnesses. The result being that the process was deliberate, slow, and broadly considered fair.
Rule II. Impeachment and conviction, to be credible, require bipartisanship and careful step-by-step deliberation. In 1998-1999, the Republicans found some bipartisan help in the House but hemorrhaged more Republican votes in the Senate while failing to pick up a single Democratic Senate vote. It is likely that not one Republican House member will vote for impeachment and not a single Republican senator for conviction, but at the same time likely that a handful of Democratic representatives will join Republicans in the House.
The Economy Matters. For all the talk of high crimes and misdemeanors, determining what those are is largely a political matter.
Clinton clearly both lied under oath, obstructed justice, and suborned perjury, but he did so at a time of his perceived good leadership on the economy and in a tawdry matter of adultery with a subordinate. Had the economy gone into recession in 1998, as it did in 1973, or were Americans lined up for scarce gas, the vote might have been far closer to convict.
Alternatively, the crashing economy and oil crisis helped to seal Nixon’s fate, along with the hard evidence of the White House tapes, which in addition to evidence that he seemed to know of the cover-up of the petty burglary, caught Nixon using vulgar and uncouth expletives.
Rule III. It is hard to remove a president even for perjury and obstruction of justice during boom times. The public believes it is counterproductive to try. The current Democrats, nonetheless, since acquiring control of the House, are oblivious to the growing economy and feel as the Republicans did in 1998, that the mere idea of impeaching a president will over time change the polls. It did not then and will not this time around. They will likely pay the same price of hemorrhaging seats as the Republicans did in both the congressional elections of 1998 and 2000.
Special counsels. Leon Jaworski and Ken Starr respectively wrote lengthy detailed (though much different) special prosecutor reports that demonstrated likely felonious activity on the part of Nixon and Clinton. Although criticized, their findings nonetheless mitigated the charges of partisanship of the impeachment efforts and help explain why the Democrats in 1973 and the Republicans in 1998-1999 felt they had evidentiary support for pressing ahead for a House vote.
Without the Starr report, Clinton might not have been impeached; Nixon might have survived had not Jaworski and his team compiled such a damning “Road Map” presentation before a grand jury.
Rule IV. Some sort of special prosecutor’s report is needed for impeachment. The Democrats do not have one. And worse, they have already sought to use special counsel Robert Mueller as a pathway to impeachment. Yet the charge of “collusion” was found to be nonexistent and the second writ of “obstruction” was found not actionable in the Mueller report. The only thing worse than not having a special counsel brief is having a prior exonerating special counsel’s brief.
Public Support for Impeachment? We forget the reason Nixon successfully fought impeachment throughout 1973 was that he still maintained public support. When he was sworn in January 1973, amid early reports and rumors of the Watergate break-in, Nixon’s positives were an astounding 67 percent. Even six months later under a constant negative media blitz, he maintained 45 percent approval.
What brought Nixon down into the low 30s and 20s, and thus made him impeachable, was a series of stock dips, the oil crisis, rising inflation, and slowing GDP—along with media bombshells about Watergate leaks. In contrast, Clintons’ dips were temporary, and each time a new “bombshell” went off, the public looked at strong growth, a solid stock market, and low employment and shrugged it off. Clinton gradually restored, and then gained, popularity.
Rule V. Majority public support is needed for impeachment. The Democrats currently lack it. And they are likely not to obtain it if the economy holds and they can find no sensational new witnesses or evidence.
Second-term presidents. Nixon and Clinton had just won landslide victories in the electoral college. Both were midway through their second terms when the scandals became daily media fare.
While there were all sorts of political considerations at stake in the upcoming midterm and general elections of 1974, 1976 and 1998, and again in 2000, these elections did not involve the targets of impeachment, given neither Nixon or Clinton could run again.
Rule VI. Impeachment should not become a substitute for a looming election. The opponents of Nixon and Clinton had two powerful arguments for impeachment. First, there was no other chance of removal, given neither president was up for reelection. And, second, none of the elected officials of the House or Senate, who would be shortly voting on the presidents’ fate, would themselves be running against the president in the next election. In Trump’s case, he will be facing the voters in less than a year who can make up their own minds. More importantly, a number of Democratic senators are running for president and thus will be voting whether to convict the likely Republican incumbent nominee for president—to their obvious self-interest.
Criminal First, Crimes Later? At first, Nixon haters in Congress tried to bring all sorts of charges of misconduct to the impeachment inquiries, from going after Nixon’s tax returns, his impoundment of federal funds, and supposed bias in antitrust suits. All failed to gain enough votes to be included in the general writs. In Clinton’s case, the events surrounding Monica Lewinsky were pruned from earlier charges of scandals involving Whitewater, Travelgate, etc.
Rule VII. Impeachment should focus on one area of alleged criminality. In the Democrats’ case, Ukraine is merely one element of a three-year effort to get Trump, dating back to his election. That some Democrats are now seeking to resurrect the Mueller report to find additional ammunition is a commentary of the serial poverty of their entire impeachment effort.
Nemesis on the Horizon
The result of this low-bar impeachment?
From now on, impeachment can be used against any first-term president with a record of success. It will be used solely as a political strategy by the opposition party that controls the House to weaken a president’s reelection chances—possibly in the interest of some of the very House, or Senate, members who as presidential candidates will sit in judgment of the accused president.
There need be no special prosecutor’s report of wrongdoing, no hard evidence, no first-hand witnesses of illegality. The entire rushed process will take days, not months in order to stain the president with being impeached. The impeaching party need not worry about the absence either of public or bipartisan congressional support. The impeaching party, as Hamilton feared, will always be in the majority in the House and can rig quick hearings to preclude reciprocal rights of calling witnesses and cross-examination.
That’s the Democratic legacy and Democrats will live to rue it.
A final note: According to the above new standards, Barack Obama easily could have been impeached any time after Republican control of the House in January 2011, both in his first and second terms—for obstructing the “Fast and Furious” investigation; for endangering the security of the United States by canceling vital missile defense in Eastern Europe in quid pro quo fashion for a commitment from Putin to keep calm during Obama’s own reelection bid; for sending Joe Biden to Ukraine to threaten to cancel non-military aid to Ukraine if it did not fire a prosecutor who was getting too close to Hunter Biden’s nefarious activities.
Congress could have impeached Obama for hiding the exact terms of the Iran Deal (which he refused to submit to the Senate for treaty ratification), specifically a quid pro quo, nocturnal cash ransom for hostages; for unconstitutionally suspending immigration law and giving amnesties by fiat without congressional approval to millions of illegal aliens; for weaponizing the IRS to use its powers during the 2011-2012 election cycle to deny viability to conservative nonprofit political organizations and to aid Obama’s own reelection effort; for surveilling Associated Press reporters on rumors they were recipients of leaked materials; for his administration’s unmasking of names of surveilled Americans that were then leaked to the press; and for allowing the top officials of the CIA, FBI, and the Justice Department to surveil an opposition party’s presidential candidate’s campaign, based on the unverified and purchased opposition research of his own party’s nominee.
None of these Obama scandals warranted impeachment by the old standards. All of them certainly could have under the new ones.