To impeach or not to impeach. That is the question.
Although nothing in the current political environment quite deserves a Shakespearean reference, both Hamlet and the Democrats are thematically contemplating the pros and cons of suicide.
Allow me to explain.
A good friend of mine recently forwarded a rather strongly worded opinion piece in the New York Times arguing that Congress has a duty to begin impeachment proceedings. Concurrently, many other respected media outlets, many of the 2020 candidates for the Democratic nomination for President, and even some Republicans have made similar calls. Indeed, there is no question in my mind that Trump deserves to be impeached. While many of Trump’s actions don’t quite rise to the required level (since “Being an Asshole” is, unfortunately, not an impeachable offense), there are definitely valid legal cases for obstruction of justice, violation of the Constitution’s Emoluments Clause, tax fraud, etc.
So Trump should be impeached, right? No. Wrong answer.
The problem is that the impeachment of a President isn’t a legal issue. It’s political. It’s purely political. A vote for impeachment in the House triggers a trial in the Senate where a 2/3 majority is required for conviction and removal from office. Senators are bound by no laws and can cast their votes as they individually deem fit with no ramifications whatsoever. There is no judge that can direct them nor override even an obviously incorrect verdict. There is no appeal. Thus, each Senator can and will vote solely to preserve their Senate seat. Anyone who believes otherwise simply hasn’t been paying attention.
Trump himself has called impeachment a “dirty, filthy, disgusting word.” While one could assume that Trump thus considers the Constitution to be pornography, I think he’d be much more interested in the document if he did. Therefore, I’m going to assume that Trump simply believes he’s fully above any laws. He’s made that abundantly clear.
The only scenario where the Senate would vote to remove Trump from office is if the case for impeachment was so airtight that public opinion massively supported the action. That means that a vast majority of Republicans would need to turn away from Trump and, unless a video surfaces of Trump giving Putin a handjob while he ejaculates on the U.S. Constitution, that’s highly unlikely. Frankly, it’s even unlikely with the video.
Nancy Pelosi has flatly refused all calls to initiate impeachment proceedings in the House. While I’d hesitate to second-guess her political instincts even if I disagreed with her, she’s absolutely right in this case.
Let’s consider the timeline.
As an initial reference, we can use the impeachment of Bill Clinton. After an investigation that lasted over four years (yep, well over twice as long as Mueller’s), the Starr report was delivered to Congress in September of 1998. The House began impeachment proceedings in October and voted to impeach Clinton in December. The Senate trial began in January and Clinton was acquitted in February 1999.
In a Trump impeachment inquiry, we should expect the House proceedings to need considerably more time than was required in 1998. While all of Starr’s work products and sources were available to the House in 1998, Trump and Barr are stonewalling the House. In an impeachment inquiry, subpoenas would be issued, challenged, and run through multiple courts. While I’d like to believe that all subpoenas related to impeachment proceedings would be upheld on final appeal even by a conservative Supreme Court, it’s not a slam dunk given the current makeup of the Court. There’s also nothing to suggest that Trump would necessarily abide by any Supreme Court decisions with which he disagreed. Wouldn’t that be fun?
There are also numerous issues that would need to be investigated that were well beyond the scope of the Mueller investigation and the House would be starting from scratch on those. In any case, the impeachment proceedings would require a considerable amount of time.
For the sake of argument, let’s assume that the 2019 House only needs to triple the amount of time required by the 1998 House and that the 2020 Senate spends the same minimal month that the 1999 Senate did. That makes it roughly eight months of House impeachment proceedings followed by a month-long Senate trial.
Now let’s look at the 2020 election cycle. The Democratic debates will occur from June 2019 to January 2020. The 2020 Democratic caucuses and primaries will run from February through June. The Democratic convention is in July; the Republican convention is in August. The Presidential debates will occur in September and October with the election on November 3, 2020.
If the House started impeachment proceedings soon, here’s how this would play out:
The House impeachment proceedings would run concurrent with all of the Democratic debates. The House vote would likely take place right at the start of primary season. While the Senate trial could also occur during the primaries, the timing of the trial would be entirely in the hands of the GOP. It is thus guaranteed that the Senate would schedule the trial to maximize the damage to the Democratic nomination process. In theory, the GOP could easily decide to start the trial on opening day of the Democratic convention.
During all of this time, every ounce of media oxygen would be directed toward the impeachment proceedings in the House and the trial in the Senate. The Democratic debates and convention would be secondary stories at best. Everything would be about Trump. The 2020 Democratic candidates would be little more than extras on Trump’s set.
Trump would thrive in the first act spotlight provided by House Democrats and would close in a dramatic second act written by Senate Republicans.
Since there is zero chance that 20 Republican Senators would vote against Trump, Trump would be acquitted. Republican Senators in contested elections (and there aren’t many of them) would claim that their vote to acquit was simply letting their constituents decide Trump’s fate in the upcoming election. While that would be an obvious cop-out, it would be a pretty good one.
Trump would go into both the Republican convention and the Presidential debates acquitted of all crimes. That convention would be a massive celebration courtesy of the Democrats. No topic other than the failed impeachment would matter in any debate.
Trump would enter election day as a winner; Democrats would enter as losers. Let’s all remember that the last President acquitted of impeachment charges handily won re-election.
Impeachment is a horrible idea.
The best path forward is for House Democrats to keep trying to exercise their oversight role without formally calling them impeachment proceedings. In theory, they should be able to pursue every single issue they want to without triggering Article 1, Section 3 of the Constitution.
Sure, the courts might not uphold every House subpoena outside the context of an impeachment inquiry. However, even the court battles could be used to political advantage. The point isn’t to try to prevent Trump from serving out the last few months of his term; the point is to prevent him from winning another term. Democrats can do that by keeping Trump’s obstruction and disregard for the rule of law center-stage during the election season so that voters will be even more incentivized to abandon him.
Trying to remove Trump via impeachment would be political suicide for Democrats. Beating Trump at the ballot box would be an affirmation of American democracy.
I’ll take Option B.