The Internet, Twitter, and every major media outlet is on fire with the idea that President Trump faces impeachment, now that the Mueller Report is rumored to be in final preparation. A sober look at known facts suggests a bit more circumspection.
The frenzy, building from flurry to blizzard, began when Mueller last week recommended prison time for Michael Cohen, President Trump’s former lawyer, for violation of campaign finance laws. The violations relate to alleged payments of “hush money” to two women by Cohen on behalf of then-candidate Trump during the 2016 presidential campaign, presumably to avoid embarrassment for what the women allege were marital affairs. Attempts to cover this up are being discussed as “obstruction of justice.”
As lawyers say, let us assume all facts as alleged. That is, let us assume arguendo that alleged affairs occurred, payments were made by Cohen, candidate knew something about them, and campaign violations occurred. These facts are not proven, but are a long way from impeachment.
Why? Well, let’s start with basics. On one hand, in 1974, the U.S House Judiciary Committee did vote an “obstruction” article out in 1974, along with “abuse of power” and “contempt of Congress.” Others failed, but US House members can craft whatever they wish in the form of articles of impeachment; this does not assure their passage – or even suggest it. Legal precedent and politics often tip the other way – and probably do here.
Legally, the idea of “hush” money to avoid embarrassment over marital infidelity may constitute a legal campaign violation, which is deserving of punishment. Typically, punishment is a fine, and many campaigns have paid fines for campaign finance violations, including the Obama Campaign – although for different violations.
More pressing is the question whether this alleged campaign violation – or anything connected to it, such as perjury to support obstruction, could be assigned to the president, and whether that asserted obstruction would legitimately warrant “impeachment for and conviction of treason, bribery, or other high crimes and Misdemeanors,” under the US Constitution.
Barring a sworn statement proven a lie, such as affected President Bill Clinton, Congress would be hard-pressed to assess perjury in support of obstruction. On the other hand, impeachment is a political process – not a criminal one – and so anything is possible. Moreover, obstruction is a broad term, so antipathy could be poured into that vessel, especially if somehow invited by the Mueller report.
Still, much suggests impeachment will never happen. Nixon’s offenses were election-affecting, deliberate and material to the outcome of the election, so much so that few Republicans could argue in his favor. The notion that alleged campaign violations tied to these two women tipped the election for Trump, given his public record and absent anything like what led to Nixon’s article, seems unlikely.
To date, there has been no indictment brought proving intent to coordinate or collude with a foreign power to win the presidential election, which would be serious. The idea of an obstruction article – on known facts – is hard to counsel. Many Democrats would likely be gun-shy if their leadership briskly framed one, pushing it through Judiciary to the House floor.
More important is broader context for this entire discussion. Theoretically, some lively House Democrats might think that impeaching a President – even if acquitted by the fortified Republican Senate – will bring satisfaction to those who dislike him and wanted a Democrat. I rather doubt it.
Impeachment, even if Democrats went whole hog for it, seldom brings political satisfaction. Most Americans – in both parties – think impeachment is an extreme act. They know – or soon would – that impeachment has been voted just 17 times in our history, only three times against a President at committee level, twice from House, never resulting in a presidential conviction.
Other impeachments, one senator, one cabinet member and 13 judges, led to only seven convictions. Presidential trials and the one committee vote leading to resignation tore the country apart. Many of those who stirred the impeachment pot, paid for it. Few heroes were made.
Similarly, practical considerations mitigate against a barn-burning push for impeachment. Just as the legal violations so far implied are weak and the act politically risky, there is more to impeachment than meets the eye.
Like so many aspects of life, slinging a word around is easy – but doing the deed is dangerous, often irresponsible, inappropriate and unworkable. The Nixon Select Committee took more than a year to examine what they had, with a sitting federal judge – Judge John Sirica – helping them produce tapes and documents that proved far more than even alleged here.
The Senate in 1974 was likely to convict, House was bipartisan in its approach. Neither of those conditions exist here. Perhaps most importantly, beyond differences in law, political climate, material facts, individual candidate, and likely outcome of a House impeachment – and even if Americans did not think impeachment extreme – time is a real factor.
Objectively, any impeachment vote from the House – leaving time for necessary procedure and due process – would be comically rushed and backfire, or would take more than a year. At that time, no matter the equities, the 2020 election cycle will be under way; the notion that our country will want a Senate trial with all the preparation, trappings and ceremony of extreme condemnation at that time – assuming the world at peace – is hard to imagine.
In short, unless something dramatic and bigger appears, something that would likely have leaked by now, prudence, political wisdom and time suggest an impeachment is remote.
Still, do not let facts or analysis chip you up too much. If you are among those who think impeachment a waste of time, energy, value and money to American taxpayers, you may be right. Nevertheless, you will hear the media play it up, and surely some in Congress. History teaches caution, but where a microphone, emotion and camera appear, history and caution are often forgotten. So, well, stay tuned.