The Case Against Impeachment
As the Trump Presidency continues down its wild path, many of the President’s detractors have suggested that impeachment is on the table. These people have included several Democrats in Congress who have gone as far as writing up and vocally supporting articles of impeachment against the President. Impeachment is the first step to removing the President from office and is analogous to indictment in a criminal proceeding. Impeachment requires 50% of the votes in the House of Representatives. If the House vote is successful a trial is then conducted in the Senate where a two-thirds majority is needed to convict the official and remove him or her from office.
The US Constitution states that impeachment and conviction of “treason, bribery, or other high crimes and misdemeanors” are required to remove the President from office. Although impeachment proceedings have started against a variety of Presidents, only Andrew Johnson and Bill Clinton have been successfully impeached by the House and both of whom were later acquitted by the Senate. There are many charges against the President regarding impeachment, but there is currently little evidence to support any of them.
The first and possibly the most common charge against the President is that of treason. This charge stems from the Russian interference in the 2016 election and a belief that Trump personally colluded with the Russian government (or was blackmailed by said government) to win the election. Although it is now clear that Russia interfered with the election with the hope of Trump winning and there is proof that members of Trump’s inner circle were in contact with Russia, there is no evidence that Trump himself was involved. As such, using a charge of treason to impeach Trump is not plausible. The second charge against the President is that of bribery. Although there are rumours or insinuations of Russian bribery, quid-pro-quo with China, and dishonest influence peddling through Trump properties, there is not any substantive proof that bribery has taken place.
The last charges against Trump all fall into the catch-all category of “high crimes and misdemeanors”. Some of these charges, such as obstruction of justice, have some substance, while others are unworkable within the ground of impeachment. The charge that Trump has participated in obstruction of justice stems from two main events. The first event is when Trump asked then FBI Director James Comey to give then National Security Advisor Michael Flynn a pass as he was being scrutinised under the FBI’s Russian interference and collusion investigation. The second event comes from President Trump’s firing of Comey, which Trump stated occurred because he thought it would remove pressure he was feeling from the FBI’s Russia investigation.
Although both obstruction of justice charges against the President have substance, they are actually quite weak. With regards to the Flynn request, it is unclear if this act would pass the high bar needed to charge a President with obstruction of justice as intent would be difficult to prove, nothing came of the remark, and this action doesn’t fall neatly into textbook cases of obstruction. With regards to the Comey firing, the President has great power in choosing who takes part in his administration and can remove those individuals at will.
Other impeachment arguments against the President that are alleged to fall into this category do not amount to impeachable offences. Trump’s Muslim Ban, although detestable and likely unconstitutional, could not be characterized as a high crime. His pardon of controversial Sheriff Joe Arpaio, although an attack of the judiciary, is a normal exercisable power put forward in the Constitution. His “same sides” speech, although morally reprehensible, does not hold water as lacking moral leadership and is not an adequate ground for impeachment.
With all of this in mind, the current rhetoric can only be characterized as wishful thinking rather than a legitimate plan to remove Trump from office; until serious offences occur or come to light, the President’s detractors will simply have to wait.
Henry Federer (2L) is Opinions Editor for Juris Diction.