Impeach Trump? Not So Fast.

Donald Trump
Donald Trump.
Brendan Smialowski/AFP/Getty Images

Twenty years ago, a sharply divided House of Representatives voted to impeach President Clinton, against the wishes of a majority of the American people. Now that President Trump has been publicly implicated in serious criminal conduct, the question of whether the president will be impeached and removed from office is once again front and center. Trump has already begun to fan the flames of outrage at the prospect, declaring that “people would revolt” in the face of impeachment proceedings. The president’s open threat of mob violence is outrageous, but it is also a stark reminder that, if pursued unwisely and without sufficient bipartisan support, efforts to impeach a president can further divide the nation.

This risk places a heavy burden on Congress in deciding whether, and when, to invoke its constitutional authority to impeach. A nascent debate has commenced among Trump opponents, reflecting starkly different views on the subject: whether to move swiftly to impeach in light of the scandals currently surrounding the president, or to take a longer-term approach, building a broad coalition of lawmakers from both parties who feel the president must be removed. The two sides of this debate are reflected in the views of two prominent individuals.

The first is incoming House Judiciary Committee Chair Jerrold Nadler, who first came to national prominence as a vocal opponent of President Bill Clinton’s impeachment. If President Trump is to face potential impeachment, the first hearings will be held by Nadler and his committee. The second is George Conway, the husband of Trump adviser Kellyanne Conway, and a lawyer who played a critical behind-the-scenes role in the unsuccessful effort to take down Clinton in the 1990s.

Conway, who not so long ago was planning to become a senior member of the Trump Justice Department, is articulating the most aggressive standard for removal of the president, just as he did 20 years ago. Nadler, by contrast, has adopted a far more restrained standard.

As Conway recently explained in an interview with Michael Isikoff and Daniel Klaidman, during the Clinton proceedings, he viewed the test for impeachment in stark and unambiguous terms: If the president committed perjury by lying under oath about a material fact, he should be impeached and removed from office, regardless of the context of the subject matter. Conway has also emphasized his belief in the importance of “consistency,” which he believes mandates that the same standard of conduct he wished to see applied to Clinton should likewise apply to Trump.

It should therefore come as no surprise that, in the wake of former FBI Director James Comey’s statement that citizens “should use every breath we have to make sure that the lies stop on January 20, 2021,” Conway replied by tweeting, “I am increasingly optimistic that we can do better than this,” plainly suggesting the president may soon be ripe for removal from office.

Like Conway, Nadler’s views on the subject of impeachment were forged in the Clinton impeachment battle. Nadler was a junior member of Congress in 1998 and was among Clinton’s most ardent supporters. Indeed, he drew widespread attention for stating before the then–GOP controlled Judiciary Committee that the effort to impeach the president for lying about his sexual activities had all the hallmarks of a “partisan coup d’état.”

Unlike Conway, Nadler believes that the circumstances of a president’s misconduct do matter, and Clinton’s supposed offense, Nadler argued, simply did not merit the extraordinary relief of removal from office. “An impeachable offense is an abuse of Presidential power designed to or with the effect of undermining the structure or function of government, or undermining constitutional liberties,” and even if Clinton lied under oath, his conduct did not meet that bar, Nadler argued.

Nadler is a harsh critic of Trump, whom he described as the “greatest threat to constitutional liberty and the functioning of our government in living memory.” Yet when he has been recently asked whether Trump should face impeachment in the event he engaged in criminal conduct, Nadler has demonstrated remarkable consistency with his position on the matter 20 years ago.

Nadler has warned against what he has described as a “partisan impeachment,” explaining that lawmakers “have to be reluctant to do an impeachment.” Accordingly, Nadler has laid out a three-part test that he will insist upon meeting before his committee considers potential articles of impeachment against Trump.

First, Congress must determine if the president committed an offense that could merit impeachment. But even if that initial bar is met, Nadler argues that Congress must then consider whether the “gravity” of the offense is sufficiently grave to justify “putting the country through the trauma of an impeachment proceeding.” Finally, Nadler argues that even if the president has committed an offense that is sufficiently grievous to merit impeachment, Congress should proceed only if a “good fraction” of the membership of the president’s own party agrees.

It is on this final point that the cleavage between Nadler’s and Conway’s views is most stark. While Conway believes that a president should be removed from office simply if he engages in misconduct that meets the standard of potential impeachability, Nadler argues impeachment is inappropriate unless there is something approaching a consensus in the nation that the president should be removed from office. The histories of both the Clinton impeachment and the end of the Nixon presidency may well support Nadler’s caution.

Two decades ago, the GOP-controlled House barreled through Clinton’s impeachment with full notice that most citizens agreed with Nadler that their proceedings amounted to a partisan show trial, which ended in a party-line vote, based on Conway’s view that perjury categorically merits the end of a presidency. By the time the articles of impeachment came before the Senate, it was clear that the removal effort was doomed to failure. Following the House impeachment vote, Clinton’s popularity soared to as high as 73 percent. During the impeachment process, the House GOP conference had suffered election losses and descended into a leadership chaos that resulted in the resignation of both House Speaker Newt Gingrich and his designated successor.

In contrast, by the time the House Judiciary Committee began to move forward with impeachment proceedings against Nixon, the evidence that the president had obstructed justice and engaged in other grave acts of misconduct was becoming overwhelming. Nixon later resigned in the face of virtual certainty that he would have been both impeached and removed from the presidency had he attempted to remain in office. This was because the “smoking gun” tape had captured Nixon directly participating in the Watergate cover-up, and as a consequence, Nixon’s support from Republicans began to collapse.

Given this background, one can reasonably ask if Conway failed to learn the lessons of history, including that of his compatriots’ past ignominious failure in their efforts to take down Clinton: Removing a president cannot be accomplished solely with the support of his most ardent opponents, however justified their opposition may be.

Nadler, in contrast, argues that the House should proceed with impeachment only if “a good fraction” of the other party agrees. Furthermore, in January 2019, the partisan makeup of the Senate, which will be comprised of more Republican senators (and more of them ardent Trump supporters), rendering the challenge of obtaining the two-thirds majority required for removal particularly difficult.

Yet it may be salutary that the road to impeachment is so steep. As Nadler has observed, the tragedy of the Trump presidency could well be compounded if Trump is forced out of office without a clear national consensus. Just as he did 20 years ago, Nadler recently warned that an impeachment that goes forward without bipartisan support could, once again, appear as a coup to the president’s supporters: “You don’t want half the country to say to the other half for the next 30 years, ‘We won the election. You stole it from us.’ ”

It may well prove to be necessary and appropriate for the president to be forced to leave office before his term is up, but if that is to occur, it should be based on a national consensus that the time has come. That consensus, at the end of the day, will only be reached if—as during the waning days of the Nixon presidency—the nation is confronted with unambiguous evidence of serious and pervasive presidential criminality. For that reason, the most important determinant of whether the Trump presidency survives may not be whether early impeachment proceedings commence, but rather whether the Mueller investigation is allowed to proceed to its conclusion wholly unimpeded.

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