Reflecting on America’s third presidential impeachment — remember impeachment, from the era before coronavirus? — Senator Mike Lee (R., Utah) anxiously wondered how the legacy might guide future members of Congress.
“It is disappointing to see the weaponization of impeachment power. This will have one of two consequences,” Lee predicted. “One precedent is that weaponized impeachments will be the new normal. That would be very bad. The other, I think and hope, is that history will judge this impeachment very harshly, and impeachments will be rare.”
Friday marks one year since the Democrat-controlled House of Representatives voted mostly along party lines to impeach President Trump, and the Republican-controlled Senate predictably acquitted him. While it was a million news cycles ago, that legacy lingers. Arguably, every impeachment is weaponized and partisan — but enough time has passed to assess the Trump impeachment as the weakest impeachment in American history. It should also serve as a cautionary tale for Republican leadership during the upcoming Biden administration.
Lee discussed these implications in an interview for my book, Abuse of Power: Inside the Three-Year Campaign to Impeach Donald Trump, mindful of the possibility that the once-rare constitutional tool could become less so.
One might be forgiven for assuming a presidential impeachment is a yuletide quasi-tradition in the House, as almost 21 years earlier to the day — not really that long ago in a historical arc — the Republican-controlled House also voted to impeach President Bill Clinton. Similarly, the December 19, 1998, Clinton impeachment was mostly along party lines. You have to go back another 130 years for the first impeachment, of Andrew Johnson — also generally along party lines. (That ordeal did not unfold at Christmas time.)
Richard Nixon’s resignation preempted what surely would have been a bipartisan impeachment and quite likely Senate removal in connection with the Watergate scandal. That impeachment process may be considered the gold standard, though it took some time for enough Republicans to be convinced Nixon was unfit for command.
The default position in Washington will always be circling the partisan wagons. However, the Trump impeachment stands out for lowering the bar for impeachment. That’s chiefly because this was the only presidential impeachment that didn’t bother to allege an actual crime.
Clinton supporters certainly found impeachment connected to covering up the Monica Lewinsky affair rather silly. But the House passed articles accusing the 42nd president of two actual felonies. With Bill Clinton, there was virtually no debate over whether the president committed perjury and obstruction of justice, only whether it should rise to the level of impeachment since it regarded a private matter.
Further, Clinton went on to pay a price beyond having the Scarlet I next to his name. He was found in civil contempt of a federal court, paid a $90,000 fine, and had to surrender his law license as part of a deal with the independent counsel’s office for his conduct in covering up the affair.
Perhaps Trump will face some legal problems after leaving office in January, as New York state prosecutors are sharpening their knives and the Biden Justice Department might yet pursue him over something. But potential legal problems are unlikely to have anything to do with Trump’s phone call to Ukrainian President Volodymyr Zelensky, the assessment of which relied on guessing Trump’s motives and Zelensky’s interpretation.
Was the call inappropriate? Was the suggestion of “quid” for “quo” — a nudge to look at Hunter Biden’s business dealings, with U.S. aid hanging in the balance — all quite unseemly? You bet it was. But a crime? Hardly.
The House accused Trump of abuse of power and obstruction of Congress — neither actual crimes and both applicable to almost any president. For example, most conservatives think President Barack Obama overreached on executive actions on immigration such as DACA and DAPA but didn’t impeach him for abuse of power. Obama declared executive privilege on documents Congress sought related to the Operation Fast and Furious gun-running sting but wasn’t impeached for obstruction of Congress — seemingly an effort to merge contempt of Congress with obstruction of justice, which actually are crimes.
The House Judiciary Committee passed an abuse-of-power article against both Nixon in 1974 and Clinton in 1998, but those charges were essentially supplementing other articles that were substantively criminal. Also, the full House rejected the abuse article in the Clinton case.
The Trump impeachment process most resembles that of Johnson, a horrible president. Abraham Lincoln’s worst decision was tapping Johnson, a Tennessee Democrat and union loyalist, for a unity ticket in 1864. Post-Civil War, Republicans held a two-thirds majority in Congress. They needed a pretext to impeach Johnson and passed the Tenure of Office Act over Johnson’s veto. The law required Senate approval for the president to fire Senate-confirmed appointees. Johnson knowingly walked into the impeachment trap when he fired War Secretary Edwin Stanton. Johnson survived in the Senate trial one vote short of the required two-thirds to remove.
Most historians scoff at this episode since the Supreme Court scrapped the Tenure of Office Act in the 1926 case of Myers v. United States. Still, the Johnson impeachment better stands up to historical scrutiny than our last undefined impeachment. It was, after all, tied to an actual duly enacted federal law that, even if later found unconstitutional, was in place at the time. The same can’t be said for the Trump impeachment.
The Trump impeachment was also the flimsiest impeachment in part because it demonstrated a complete cave by House Speaker Nancy Pelosi to her left flank. Leadership is not only about being the loyal opposition and fighting the good fight. It’s also about walking your party hardliners back from the precipice.
The Constitution makes impeachment in the House relatively simple and removal by the Senate very difficult. Still, the House seldom pulled the trigger despite requiring no more than a majority vote. Normalizing House impeachment — if that is the result of lowering the bar — will likely have the effect of desensitizing the public to a legitimately impeachable offense by a future president. On the flip side, if this petty impeachment leads to absolute avoidance of impeachment, that’s also not a desirable future.
After the acrimonious election and post-election, it’s not difficult to imagine certain GOP House members demanding Joe Biden’s impeachment early on. There certainly are grounds to investigate. Congressional oversight should be robust in any administration, of course. But impeachment — which at least offers the possibility, however slim, of deposing an elected leader without an election — should be the last resort.
Robert Ray, the independent counsel who took over Ken Starr’s investigation of Clinton and joined Trump’s legal team in the Senate trial, anticipates the Clinton and Trump impeachments (separated only by two other presidencies) might prompt both parties to call a truce.
A parallel, Ray said, was that Republicans hated and Democrats loved the independent counsel statute when it was used against the Reagan and Bush administrations in the 1980s. But the parties switched their preferences during the Clinton administration in the 1990s.
“It reminds me of the demise of the independent counsel statute after both parties were victimized by it,” Ray said in an interview for Abuse of Power. “We may have the same thing here. Both parties will think it through before moving forward on impeachment.”
We’ll find out soon enough.