Impeachment Impossible

There have been three Presidential Impeachment investigations in my lifetime, two during my adulthood. Only one was successful in removing a President when Nixon resigned rather than face almost certain Impeachment by the House of Representatives and removal by the Senate. 

Attempting to remove a president through the impeachment process is necessarily difficult. Our constitution put power in the hands of the people through regular elections. However, the founding fathers, concerned about the prospect of tyranny, made it possible for Congress to remove a president if he or she “betrayed some public trust” before voters had a chance to remove him or her in an election. 

The recent Impeachment by the House and acquittal by the Senate of President Donald J. Trump demonstrated the challenges Congress faces in trying to hold a president accountable and check his power. It also exposed the flaws in our system of government.

A founding principal of the United States is the rule of law. In other words, citizens and elected officials are supposed to follow the law even when they do not agree with it and there are consequences if they don’t. During the Impeachment process of President Trump, we discovered the rule of law is not absolute. 

The President refused to allow testimony or turn over any documents that were subpoenaed by the House of Representatives. The Supreme Court found unanimously in Nixon v US that a President must provide documents and witnesses subpoenaed by Congress. The Supreme Court also found in Clinton v Jones a President is not immune from civil litigation and must testify. Both rulings confirmed what the Constitution infers, that a President must comply with duly issued subpoenas for documents and testimony. Despite these clear rulings, the President ignored them, leaving the House Democrats with three choices: litigate the matter through the courts, refuse to allow votes on legislation to force the White House to negotiate or impeach.

If the House had litigated the matter, which they should not have had to do since previous Supreme Court rulings confirmed Congress’s right to investigate the President, the slow pace of the courts would have meant their decision was unlikely to have come before the 2020 election and the public would not be able to make a fully informed decision on who to cast their vote for President (ironically, this happened anyway). Without such a ruling, a majority of Senators were able to easily vote against the Articles of Impeachment since they didn’t have to choose between respecting a ruling by the court and their loyalty to the President.

The House could have stopped legislating until Trump complied with subpoenas since Congress holds the power of the purse and could starve the government of funding. Obviously, this would affect government services and jobs Americans care more about than bickering politicians. 

Impeachment was the best option for House Democrats. They miscalculated that they could sway public opinion. They failed to appreciate that Americans have lost faith in a Congress that has a thin record of accomplishments. A judgment from the Supreme Court could have improved the legitimacy of their case. However, requiring involvement by the courts makes Impeachment much more difficult and time consuming than the Constitution intended.

Trump’s Impeachment also made clear that the standard for removal from office is greater than the felony standard of beyond a reasonable doubt. The standard is beyond ANY doubt meaning the evidence against a president must include direct, incontrovertible documents and witnesses that specifically detail the exact words and actions from the President proving Impeachable conduct.

House Managers had a very strong circumstantial case against President Trump that would likely have achieved a conviction if it was a typical criminal trial. On the July 25, 2019 call with Ukraine President Zelensky, Trump specifically asks for investigations into his likely opponent in the 2020 election, former Vice President Joe Biden. House investigators also found evidence that $391 million dollars in military aid approved by Congress was withheld from Ukraine for several months and that a White House meeting Zelensky requested with Trump never happened. Witnesses who did testify believed the investigations the President wanted were linked to the withholding of the aid and White House meeting. They also stated it was inappropriate to do so. However, the House Managers were unable to present any documents clearly stating the reasoning for the aid and meeting being withheld or any testimony from any administration official who were directed specifically by the President. Nixon fought his impeachment investigation until the Supreme Court found unanimously that he had to turn over tapes he had made in the White House where he was heard directing the obstruction he was accused of doing. 

The effect of this Impeachment has been to make it nearly impossible to remove a president. A president does not need to comply with any subpoena from the House until the Supreme Court rules which will probably not happen until his or her term ends. Not being required to comply with subpoenas means the President makes it impossible for Senators to find him guilty beyond any doubt since the documents and witnesses that could provide that evidence can be blocked by the President until the courts rule. 

A president now has an “unrestrained exercise of power” he or she could use to usurp the will of the people. This would be tyranny.

It is disheartening to me that more Americans failed to understand this. Regardless of the merits of the case, the President is bound by the Constitution (and precedence of the Supreme Court) to submit to Congressional oversight. Trump did not. He was Impeached but not removed establishing the new precedent that a president does not need to submit to oversight. His or her power is now only limited to periodic elections which he or she can manipulate without fear of consequence. 

The founding principle of the rule of law is in danger. Without it, our democracy will crumble like every other because we supported leaders who cared more about their power than the Constitution which is what truly makes America Great.