In One Week, Trump Makes the Case for Impeachment
Every single day, Donald Trump offers up a fragrant, colorful, teeming bouquet of reasons to believe he is unfit to hold the office of president. And every single day, the nation shrugs and waits for something to be done about it. (Really, congressional Democrats take a long summer break and largely shrug, and hope that the election will take care of this specific problem for them.)
But it’s still worth cataloging the specific things Trump is doing that, in another time or place or plane of being, could be deemed as demanding an immediate and focused impeachment inquiry, as Jennifer Rubin also points out in the Washington Post. Because this week alone, the president has asked government workers to break the law to fulfill his requests, and noted that he will pardon them if they get in trouble; suggested hosting the next G-7 summit at his property (so that he can profit); and diverted funds from FEMA relief to his border fever dream. He’s also denying lifesaving medical care to immigrant children he will deport and changing citizenship rules for the children of military families born abroad. On the 25th Amendment front (meaning the “is he mentally unfit for office” front), the president has lied about his wife’s relationship with North Korea’s Kim Jong-un, garbled an answer about climate change in ways that would terrify anyone in search of a topic sentence, attacked Fox News for disloyalty, blamed Puerto Rico in advance of a hurricane for being in the path of a hurricane, and generally conducted himself in ways that bespeak grievously low functioning. This all comes on the heels of a week in which he approvingly quoted someone describing him as the second coming (a performance that would have sent most of us to the nearest psych ward), called his own economic adviser the enemy of the state, “ordered” American companies to stop investing in China, and got in a fight with Denmark over a real estate deal gone south in Greenland.
The responses to the increased chaos are to be predicted. Jim Mattis went to work on his brand, gravely stating that he tried to protect us as long as he could, but things are officially out of hand and stay tuned for future acts of bravery™ (or as Scott Pilutik drolly interprets Mattis, “At some indeterminate point in the future, when the political risk has thankfully passed (if it indeed does), I will roar with the courage of a lion at a series of book signings”). Stephanie Grisham explained that he’s just kidding. Senate Republicans are hiding or quitting. And congressional Democrats are still just waiting for a sign that things have gotten Really Bad.
Here’s a sign that things are Really Bad. If one were to consider, again, the articles of impeachment against the three sitting presidents who have historically faced impeachment proceedings, not only has Trump clearly achieved all of them—he actually now achieves most of them in under a week. Every week. As Frank Bowman has argued in his new book, High Crimes and Misdemeanors, because Americans have no contemporary understanding of the grounds for impeachment, they fail to comprehend that we go there, and back, on stilts virtually every day. So, let’s refresh our memories. What did previous presidents do that warranted congressional action?
In July 1974, the House Judiciary Committee approved three articles of impeachment against Nixon. The House never voted on them because Nixon resigned before they could, but the substance of the articles of impeachment were as follows:
Article I: Obstruction of justice: in Nixon’s case, included efforts to delay, cover up, or conceal evidence relating to the Watergate break-ins by making false and misleading statements, withholding information, encouraging witnesses to give false or misleading statements, attempting to interfere with the FBI and other investigators, leaking information about the investigation to help the accused, and insinuating that people who refused to testify against him or who gave false testimony would gain favors.
Article II: Abuses of presidential power: misusing the FBI, Secret Service, and other government employees by allowing their information to be used for purposes other than national security or the enforcement of laws; using campaign contributions and the CIA in an attempt to sway the process; misusing executive power by interfering with agencies within the executive branch.
Article III: Defiance of subpoenas: involved Nixon’s willful disregard of subpoenas of, and failure to produce, papers and information for the House Judiciary Committee.
So, check, check, check.
Clinton was impeached on Dec. 19, 1998, by the House of Representatives on grounds of perjury to a grand jury and obstruction of justice. He was acquitted by the Senate in 1999. Of the articles of impeachment drafted against Clinton that might be relevant today, only the first and third articles gained congressional approval, and only the third offers us guidance. (The first was for lying in his testimony to investigators. Trump has never testified.)
Article III: Obstruction of justice: determined that Clinton had prevented, obstructed, and impeded the administration of justice, and that he had engaged personally, and through his subordinates and agents, in schemes designed to delay, impede, cover up, and conceal the existence of evidence and testimony related to a federal proceeding.
Perhaps the most fun guide could be the 11 (!) articles of impeachment filed against Andrew Johnson in 1868, who, like Bill Clinton, was acquitted in the Senate. These 11 articles still offer some historic guidance even today. Here is the most relevant one.
Article X: “did attempt to bring into disgrace, ridicule, hatred, contempt and reproach, the Congress of the United States, and the several branches thereof, to impair and destroy the regard and respect of all the good people of the United States for the Congress and the legislative power thereof, which all officers of the government ought inviolably to preserve and maintain, and to excite the odium and resentment of all good people of the United States against Congress and the laws by it duly and constitutionally enacted; and in pursuance of his said design and intent, openly and publicly and before divers assemblages of citizens of the United States, convened in divers parts thereof, to meet and receive said Andrew Johnson as the Chief Magistrate of the United States, did, on the eighteenth day of August, in the year of our Lord one thousand eight hundred and sixty-six, and on divers other days and times, as well before as afterwards, make and declare, with a loud voice, certain intemperate, inflammatory and scandalous harangues, and therein utter loud threats and bitter menaces, as well against Congress as the laws of the United States duly enacted thereby.” This is then followed by lengthy accounts of what could be polemical Trump rally speeches (and also those not used at his rallies).
This is all a long and drawn-out way of reminding us all that the presidential impeachment process is not necessarily triggered by acts of high treason or pervasive criminal activity. A president does not have to do something unutterably criminal to invoke impeachment. But as Charles L. Black wrote in his Watergate-era classic Impeachment: A Handbook, hypothetical examples of impeachable conduct may include the noncriminal, such as income tax fraud (“in that it uses office for corrupt gain; and in any case, it undermines government”) and obstruction of justice (“when it occurs in connection with governmental matters, and when its perpetrator is the person principally charged that the laws be faithfully executed”). Or as Bowman has explained, “It doesn’t have to be actually criminal, but it has to be something that really strikes at his legitimacy or really strikes at undermining the constitutional order.”
And yet, House Democrats are still waiting to figure out what to do—for some reasons that may be plausible, political strategies, and for other reasons that have more to do with learned helplessness and Patty Hearst syndrome.* The rest of us are pretty sure that if this ride goes any faster, we are going to implode before the 2020 election. So now is a good time to remind ourselves that we aren’t helpless, and that Donald Trump’s Cabinet is not going to invoke the 25th Amendment, and that there are “no adults in the room,” and that the one trick that isn’t fanciful and still works is the impeachment power, whether or not the Senate opts to convict.
Because the fact of the matter is that Donald Trump has committed multiple impeachable acts this week alone. There are the emoluments clause violations in attempting to grift the G-7 into paying his resort fees, the promises to pardon lawbreakers who help him build his wall, the threats to sitting members of Congress, and the persistent refusal to honor lawful subpoenas. These are abuses of power, obstruction of justice, and defiance of subpoenas. And, again, it’s only Thursday.
Larry Tribe of Harvard Law School puts it this way in an email to me:
The case for impeaching and removing Trump to protect our republic from the irreversible injury likely to be inflicted by his ongoing “high Crimes and Misdemeanors” is now so compelling that only the delusional—or those utterly ignorant of our Constitution’s sole mechanism for defending the country from a lawless tyrant—could fail to agree. The only real question is whether attempting to remove Trump by impeachment is so certain to fail, and to backfire by increasing the odds of his remaining in office for a second term, that the effort would be self-defeating. But that excuse for not doing what’s obviously right as a constitutional matter is no longer tenable even if it might once have been: An impeached Trump who escapes conviction in the Senate after the evidence is laid out in public House hearings will be weaker in 2020 than a Trump who can brag that not even a Democratically controlled House could bring itself to impeach him. And GOP Senators who give him a pass will be easier to defeat than ones who’re spared any need to be counted.
Donald Trump every day does one or two or seven things far more dangerous and destabilizing than anything we once considered an impeachable offense. He has invited hostile powers to usurp elections. He has undermined congressional will and threatened witnesses against him. He attacks and undermines the courts and the free press and violates basic principles of separation of powers, all of which violate his own oath of office. He attempts daily to enrich himself with foreign money, and he has overseen the systematic abuse and degradation of immigrants and asylum-seekers. He is also, by any historical measure, committing multiple impeachable offenses, endangering national security, and harming vulnerable communities. There is a constitutional remedy for that. We should avail ourselves of it.
Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.
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