January 2, 2019
G. Terry Madonna & Michael L.Young
That’s the number of separate federal and state ongoing investigations targeting President Trump. This number omits the dozens of civil lawsuits the president or his businesses are also confronting.
Under this unprecedented scrutiny Trump is easily the most investigated president in American history. Nor is it ending. As Democrats take over the House, they will initiate multiple new investigations into all aspects of Trump’s personal and professional life, as well as his business empire. That will include his public policies, his business associates, his personal and professional staff, his campaign team, and even his charitable activities.
To add to his woes the incoming New York Attorney General has pledged to open up an investigation into virtually all aspects of Trump’s life, including his vast real estate holdings.
Not surprisingly, the president has confided to close friends his deep concern about the possibilities of impeachment. He should be concerned. Majority House Democrats now can impeach him since the power to impeach resides solely in the House–while actual removal from office requires two thirds concurrence in the Senate after a trial.
The U.S. Constitution spells out the grounds for impeachment: “Treason, Bribery, or other high Crimes and Misdemeanors.” In reality, however, impeachment is a political rather than a legal process, Hence the grounds for impeachment are whatever a majority of the House decides. Since the founding of the Republic, only two presidents have been impeached – while a third, Richard Nixon, would have been impeached and almost certainly convicted had he not resigned his office.
In the first case of actual impeachment, President Andrew Johnson was impeached in 1868 on a straight party line vote – ostensibly for his firing of Secretary of War Edmund Stanton, a firing that violated the Tenure of Office Act. But the real cause of Johnson’s impeachment was political. A Democrat, he was following a more lenient policy towards the defeated states of the South after the Civil War. Republicans running Congress feared he would disrupt their tougher reconstruction policies.
Nevertheless, Johnson survived removal in the Senate by a single vote.
The impeachment of President Bill Clinton in 1998 was also rooted in policy differences, exacerbated greatly by Republican dislike for Clinton and contempt for his behavior in office. Ultimately, Clinton’s denial of an affair with a White House intern led Clinton into a maze of legal depositions and Grand Jury testimony in which he perjured himself. This in turn led to accusations of obstruction of justice, perjury and abuse of power. Eventually the House approved two articles of impeachment, alleging perjury and obstruction of justice. Clinton, however, was comfortably acquitted in the Senate.
Any fair reading of history must conclude that impeachment has been a flawed tool for removing a president. Historically, from Andrew Johnson through Bill Clinton, it has not worked as the Founding Fathers hoped it would. (Although in Nixon’s case it can be argued that its threat brought about a necessary end.)
Worse perhaps, we don’t really have a better constitutional method to deal with the constitutional crisis brought on by a failed presidency. Most analysts have concluded the 25th amendment will work only in the narrowly tailored circumstances of an obviously disabled president – circumstances that don’t exist in this situation. Nor do other constitutional remedies exist. We are not a parliamentary system so can’t remove a president with a “vote of no confidence” as for example the UK can (and historically has frequently done). And much to our credit and stability as a nation, we have no history of coups or other non-constitutional methods to remove a president.
Consequently, the options to remove a president from office are few. Some sort of negotiated arrangement similar to that accompanying Richard Nixon’s resignation is possible – presumably with similar legal inducements that allowed Nixon to enter private life immune to possible criminal charges. But a Nixonian style settlement seems unlikely today since ongoing separate state investigations might still ensnare President Trump in a legal morass. Even more problematic, the enormous scope of legal issues confronting Trump extend to his family, making a negotiated legal exit a logistical nightmare.
The remaining option is to allow Trump’s term to run out, abandoning efforts to remove him early from office. No one fully knows the implication of Trump finishing his term. But America in two and a half centuries has survived much worse than another two years of a Trump presidency.
Moreover, he was constitutionally elected –and up to 40 percent of voters still support him. Unlike Andrew Johnson in the 19th century or Richard Nixon in the 20th, efforts to remove Trump early would leave the country even more divided and polarized than it is now. The costs to be incurred from two more years of a Trump presidency may be trivial compared to the costs of removing him.
“What can’t be cured must be endured” is a hoary old maxim that nevertheless fits our situation. The problems of the Trump presidency probably can’t be cured – but they can be endured. We can’t afford the alternative.
Politically Uncorrected™ is published twice monthly, and previous columns can be viewed at http://www.fandm.edu/politics. The opinions expressed in this article are solely those of the authors and do not necessarily reflect the opinions of any institution or organization with which they are affiliated. This article may be used in whole or part only with appropriate attribution. Copyright © 2019 Terry Madonna and Michael Young