Open Memo 2: The Impeachment Roadmap From 1974 To 2020
Reprinted with permission from Just Security.
We’re waiting for Godot.
–Samuel Beckett, Waiting for Godot
The Watergate Analogy and the “Smoking Gun”
The first hearing of the House Judiciary Committee into the crimes of Donald Trump explored the analogy between Richard Nixon’s obstructions of justice in the Watergate affair and Trump’s obstructions in Special Counsel Robert Mueller’s probe of Russian interference in the 2016 election that was intended to assist his candidacy. The first witness, John Dean, who had been Nixon’s White House legal counsel and exposed his “cancer on the presidency,” testified that Trump’s crimes were comparable to Nixon’s. “It’s quite striking and startling to me that history is repeating itself—and with a vengeance,” he said. He pointed the committee to the Mueller Report as “a road map.”
But one major dissimilarity between the Nixon and Trump cases is as revealing and central as the “striking” parallel between their abuse of power—and makes the case against Trump all the more secure. The contrasting sequences in the disclosure of damaging information shows that the progress in establishing Trump’s crimes is more concrete, unambiguous and undeniable than Nixon’s were until the climax of his scandal. That difference is not a merely intriguing footnote, but fundamental to understanding how the current investigation of Trump would most probably unfold. In Nixon’s case, the incriminating piece of evidence, which became known as the “Smoking Gun” tape, was not exposed until the very end; in Trump’s case, however, the incriminating evidence in the form of many smoking guns lie in plain sight on the table like Poe’s supposedly hidden purloined letter.
The Senate Watergate Committee began its hearings on May 17, 1973. In his testimony that June, John Dean raised his suspicion that Nixon was taping his conversations. A month later, in July, Alexander Butterfield, the deputy chief of staff, who had installed the taping system, testified to its existence. Special Prosecutor Archibald Cox promptly filed subpoenas for the tapes. Nixon invoked executive privilege. District Court Judge John Sirica ruled that Nixon must turn over the tapes. Nixon stonewalled. Negotiations went nowhere. On October 20, in the “Saturday Night Massacre,” Nixon fired Cox, and Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus, who refused to do his bidding. The court appointed Leon Jaworski as Special Prosecutor, and he drew up a confidential “roadmap” for his investigation that was not made public until 2018. Despite the firestorm over Cox’s dismissal, it took until February 6, 1974 for the House to authorize the Judiciary Committee to initiate an impeachment inquiry, which hired a staff to begin the formal process of gathering evidence. On April 11, the Judiciary Committee subpoenaed the tapes. Nixon handed over a batch of edited transcripts. The committee opened public hearings on May 9. On July 24, the Supreme Court ruled unanimously in United States v. Nixon, a case filed by Jaworski, that Nixon must turn over the tapes. Three days later, over the course of three days, the Judiciary Committee passed three articles of impeachment. On August 5, the “Smoking Gun” tape proving Nixon’s obstruction of justice was revealed. He resigned on August 9.
Thus, in the Nixon case the conclusive incriminating piece of evidence of his obstruction, the “Smoking Gun” tape, was disclosed after the Judiciary Committee had already voted articles of impeachment. By contrast, in the Trump case, the evidence of his obstructions of justice, already carefully detailed in the Mueller Report, was released on April 18—before any hearings into his crimes. In Watergate, the House Judiciary Committee voted on impeachment before the final evidence of the crime was exposed. With Trump, a crime has already been established, but there is no impeachment inquiry. The sequence is the reverse of Watergate, and in ways far more damaging to Trump.
Yet the House leadership is conveying a misimpression that a “Smoking Gun” still needs to be discovered and that an inquiry to establish what is already known from the Mueller Report as well as other of Trump’s crimes would only politically enhance him-–a misimpression deliberately fostered by the Trump White House, and above all by Attorney General William Barr, who is a master of misrepresentation. As if transfixed by a conventional wisdom manufactured by Trump’s lawyers and other allies, or an apprehension based on snapshots of transitory polls that the public is sold on that conventional wisdom, and gripped with angst about swing districts, the House leadership has forsworn the only available constitutional means for halting what they know to be this administration’s brazen deceptions, stonewalling, and threats to the foundations of our constitutional system. Rather than accepting the obligation to prove to the public the severity of Trump’s high crimes and to begin the work of restoring democratic norms to government and society, the House leadership has instead limited the action to ongoing investigations and litigation as a kind of half-measure and suture to stanch an impeachment. Yet if this plodding approach manages to force forward fact witnesses and damaging documents they would inevitably provide compelling cause for impeachment, but in the middle of the campaign. The leadership’s logic is not so much circular as ironically self-refuting if it bears fruit.
It was a political axiom of the Nixon case that the more information that the public knew the more the support for impeachment rose. The evidence that this is also an axiom in the Trump case has now begun to appear. After Mueller’s press conference, a CNN poll showed support for impeachment climbed from 37 percent to 41 percent. By the gauge of the CNN poll, the public today is roughly in support of impeachment for Trump where it was for Nixon on the eve of the Judiciary Committee impeachment hearings. The Quinnipiac Poll of June 12 showed that 48 percent were in favor of the Congress investigating to determine whether to impeach Trump—in effect a near majority favoring an inquiry. By an even larger margin, 55 percent to 35 percent, voters said Mueller did not clear Trump of wrongdoing. Forty-five percent said Trump has committed crimes in office, the definition of an impeachable offense. With 95 percent of Republicans unsurprisingly in unison against the idea that Trump deserves to be impeached, 44 percent of the total of the public say he does deserve to be impeached, including 45 percent of independents. That number suggests room for growth if Trump’s misdeeds were to be confirmed.
In the Nixon case, his support dropped and the percentage in favor of impeachment rose gradually as his crimes were disclosed. In Trump’s, support for impeachment is farther advanced. Most of the public is already convinced that he has a criminal character. By 57 percent to 29 percent, voters believe Trump committed crimes before assuming office. And yet only 33 percent favor starting the process to impeach in the Quinnipiac poll, 11 points below the number of those who think Trump deserves to be impeached. One might call that the Pelosi effect. The Republicans are fairly static, but surely many of the Democrats would shift their view if Pelosi and the party unified in favor of an impeachment inquiry.
The principal task of the House Judiciary in holding Trump constitutionally accountable would begin most obviously in corroborating what has already been documented through the same witnesses that established the facts for Mueller. But since the Mueller Report has been made public the only fact witness that the committee has managed to hear is John Dean—the facts being about Watergate—and whose history lesson is just the beginning of instruction.
The Roadmap from 1974 to 2020
The Democratic leaders behave as though they view events through a glass darkly. But the history of the Nixon impeachment and its aftermath, the only pertinent model, removes the opacity occluding the politics of impeachment, and a “roadmap” appears: a televised inquiry building public support; witnesses before the cameras offer persuasive testimonials about the evidence about which much of the public had been unaware but is scandalized to learn; the publicized evidence eats away at the credibility of the president’s defenders. There are, moreover, deeper historical parallels to the Nixon impeachment than have been discussed that shed light on the Democrats’ quandary over opening an inquiry and the prospect of a Republican managed Senate trial.
While Speaker of the House Nancy Pelosi and others have suggested the futility of an impeachment because a Republican dominated Senate would almost certainly acquit Trump, it is also at least equally certain that impeachment would tighten a political vise around the most vulnerable Republican members seeking reelection in 2020. It is also possible that a failure to impeach will strengthen those vulnerable Republicans as well as Trump, who by default will boast an aura of vindication. In fact, backing off of impeachment now, after so much consternation, will be used by Trump to bludgeon Democrats. By contrast, an impeachment holds out the possibility that a Republican Senate acquittal of Trump in a trial superintended by Majority Leader Mitch McConnell (the most unpopular Senator in the country) would be the equivalent in the 2020 election to what the Ford pardon of Nixon was to the elections of 1974 and 1976. And, then, there would be the possibility of a Democratic president who takes office in 2021 governing with a Democratic House and a Democratic Senate.
The Ford Pardon of Nixon and the McConnell “Pardon” of Trump
The House Judiciary Committee’s inquiry into Nixon invested with full powers was not off-hand or abrupt but deliberate and prolonged, lasting three months. By the time the inquiry began, there was already abundant evidence of Nixon’s wrongdoing, albeit less abundant than in the case of Trump. The committee took the time, first, to establish that the evidence already known was ironclad and, second, to discover any additional evidence. Committee Chairman Peter Rodino understood that, short of using the committee’s full powers, the Nixon administration’s strategy of stonewalling, evasion, and deceit would continue to succeed. There was nothing rushed about establishing Nixon’s crimes. For the Republicans, the political price of defending Nixon was devastating. The costs increased after Nixon resigned. The Democrats of today may have forgotten that three months after Nixon resigned, the Democrats of 1974 gained 49 seats in the House and four in the Senate. Congressional defenders of Nixon were especially singled out by the voters for punishment. That signal victory was driven not only by the impeachment inquiry but also by another cataclysmic event—the Ford pardon.
In the end, Nixon was not impeached. He resigned before there was ever an impeachment vote on the floor by the full House. Nixon never had a trial in the Senate. Out of office, he was now a private citizen. Federal and state authorities could still pursue him. But President Gerald Ford intervened with his pardon. Whatever the scholarly debates since about its prudence, the political consequence at the time was shattering. The public overwhelmingly believed that Nixon should be prosecuted for his crimes and that Ford had protected him from justice. Ford never recovered. “Yet as hard as Ford tried to exorcise the ghost of Watergate, it would continue to linger for the rest of his presidency,” recalled Donald Rumsfeld, his chief of staff. And, so, Ford lost badly in 1976.
If there is a Trump impeachment, Mitch McConnell would be in the role of Gerald Ford. The Senate Republican Majority Leader would hold the power over whether Trump would be held accountable for crimes indisputably established by the House, first after lengthy hearings by the Judiciary Committee and then after a debate by the entire House over impeachment. McConnell would zealously assume serving as the final arbiter. But in his rush to judgment he would not understand that going down that path he will have cast himself as Ford. McConnell’s kangaroo court acquittal would appear to the public like Ford’s pardon. It would be all the more so following a trial in which the Democratic House managers would once again, in the highest-profile setting imaginable – present the case against Trump yet again. Any Republican senator who toed McConnell’s line would be held culpable for the cover-up. Just as the Republican Party paid a devastating political price for the pardon in 1974—and Ford in 1976—the Republicans would similarly pay for McConnell’s perversion of justice in 2020, if Democrats in the House are willing to let him the iniquitous part he was born to play.
History’s lessons, 1974-76
The resignation of Richard Nixon was not the political culmination of his impeachment drama. On August 9, 1974, Nixon delivered his Farewell Address in the East Room of the White House to his cabinet and staff. “Always remember others may hate you, but those who hate you don’t win unless you hate them, and then you destroy yourself,” he said. Boarding a helicopter on the South Lawn, he stood on the top step, flashed a frozen smile and waved the V sign with both hands, by then taken to be his inimitable gesture but really his insecure mimicry of Dwight Eisenhower for whom he had served uneasily as vice president.
Gerald Ford was now president. When Vice President Spiro Agnew pled no contest to bribery and resigned in October 1973, Nixon appointed Ford, the House minority leader, to replace him. Nixon had no premonition that he was choosing his successor. He thought of Ford as a stalwart partisan who would reflexively defend him. Ford had not sought the position. Shortly after Nixon flew away, the new president addressed the country. “Our long national nightmare is over,” he said. His approval rating in the first Gallup Poll measuring him as president was 71 percent, higher than any subsequent president upon assuming the office. It lasted one month.
On September 8, 1974, Ford announced a “full, free and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.” Ford’s approval rating plunged 21 points to 50 percent. By January 1975, it fell to 40 percent. By March, it went down to 37 percent. His ratings fluctuated, but edged above 50 percent only briefly in early 1976 and settled at 48 percent in June of his election year. He lost the presidency to Jimmy Carter, who famously promised, “I will never lie to you.” Ford reflected later, in 1984, that “the political fallout was far more serious than I contemplated.”
The week that Ford issued his pardon the Gallup Poll recorded that 58 percent wanted Nixon “tried for possible criminal charges arising from Watergate.” Only 36 percent were against. Those who believed that Nixon should not be prosecuted were mostly Republicans. A majority of Republicans—56 percent—did not want Nixon to face any trial. Yet a sizable minority—38 percent—thought he should be charged. Only 38 percent of all those polled favored a pardon. Again, most supporting leniency for Nixon were Republicans—51 percent. Democrats overwhelmingly favored prosecution—68 percent—and opposed a pardon—56 percent. Independents were mainly in line with Democrats, at 60 percent for bringing Nixon to justice, but even more adamantly opposed to a pardon at 59 percent.
The midterm elections of 1974 were the first since the Watergate scandal and the Ford pardon. It was the public’s chance at last to issue its verdict. Before the elections the only ones to have voted on Nixon’s crimes were the 38 members of the House Judiciary Committee. The House as a whole had not voted; the Senate held no trial; and Ford thwarted justice in the courts. If the pardon prevented judgment, the elections were the available remedy.
The result was the greatest Democratic sweep since the landslide victory of Lyndon Johnson in 1964 in the wake of the Kennedy assassination and against a divided Republican Party led by Barry Goldwater. The election of the so-called “Watergate babies,” a new generation of liberal Democrats, marked the beginning of the real end of the conservative Southern Democratic control of the congressional party and its de facto alliance with the Republicans that had effectively ended the New Deal after the 1938 midterm elections, and the launching of new progressive agendas from environmentalism to consumer protection to women’s rights.
Conservative Republicans in the north fared particularly poorly. Moderate Republicans who had voiced criticism of Nixon still hung on. A long realignment of the parties was underway in the north, too. Four of the outspoken Republican defenders of Nixon on the House Judiciary Committee were soundly defeated. One particularly strident Nixon supporter, who was not on the committee, Rep. Earl Landgrebe, of Indiana, from a safe Republican district, was defeated after he stated, “Don’t confuse me with the facts… I’m sticking by my president even if he and I have to be carried out of this building and be shot.”
The Ford pardon was the capstone of the scandal. Letting Nixon off infuriated most of the voters. Yet two years earlier, only a bare majority, 52 percent, had even heard about Watergate, despite the grand jury indictments of the burglars. By June 1973, however, during the Senate Watergate Committee hearings, 98 percent were aware of the scandal. Throughout that year those who regarded it as a serious issue increased from 26 to 49 percent. By April 1974, when the House impeachment inquiry began, a slight majority, 52 percent, believed there was evidence to bring Nixon to trial before the Senate, according to the Gallup Poll. By August, that number had jumped to 65 percent. Only the inquiry had brought about the change in public opinion. After the public had been persuaded of Nixon’s guilt Ford’s pardon supercharged their opinion, which they made known in the 1974 elections.
Applying the Watergate lessons to now
Imagine the course of events. The House impeaches Trump after a protracted public exercise televised for weeks, if not months, with credible witnesses having testified to Trump’s extensive violations of his constitutional duties and acts of outright criminality, already documented in the Mueller Report and in the U.S. Attorney of the Southern District of New York’s filing in the Michael Cohen case, and public opinion follows the pattern of the Nixon impeachment. The case would then move to the Senate for a trial, which Nixon never had.
In the chamber of the Senate the Chief Justice of the Supreme Court, John Roberts, would preside as the judge. But the Republican Majority Leader has already telegraphed through his surrogates that he would set the rules, determining who would be allowed to be called as witnesses, who would speak and who would not, what evidence would be introduced and what excluded, and the length of the trial itself. “I think it would be disposed of very quickly,” said Senate Judiciary Committee Chairman Lindsey Graham, who, since the death of his mentor Senator John McCain, and facing reelection in 2020 in South Carolina, has become an unabashed Trump apologist. “If it’s based on the Mueller Report, or anything like that, it would be quickly disposed of,” he told The Hill.
Senator John Cornyn, of Texas, a member of McConnell’s leadership team, said “nothing” would happen in the Senate when it received articles of impeachment from the House. “It would be defeated. That’s why all they want to do is talk about it,” he said. “They know what the outcome would be.”
“Why on earth would we give a platform to something that I judge as a purely political exercise?” said Senator Thom Tillis, of North Carolina, another Judiciary Committee member and one of the most vulnerable Republicans up for reelection.
Thus, McConnell has made clear that his preordained prejudiced trial of Donald J. Trump would lack even the credibility and legitimacy of the Ford pardon. McConnell’s fixing of the outcome to protect Trump from being judged on what would be well-established charges would be acted out in plain sight for all to see. After the House passed articles of impeachment, conducting a trial would undoubtedly draw the support of a sizable majority of the public as it did in the Nixon case. McConnell could not treat a trial as he did President Obama’s nomination of Merrick Garland to the Supreme Court, killing it by refusing to acknowledge it. The House Managers would have to speak and they would make the case against Trump. McConnell’s maneuvering to disregard evidence, blackball witnesses, and narrow time limits would starkly dramatize the Republican contempt for the constitutional process and complicity in aiding and abetting Trump’s criminality, a Republican cover-up of their own. They would be seen to be rejecting the facts not because the evidence is wrong but because it’s right. Thrown into this cauldron, Chief Justice Roberts, already worried about the reputation of the Supreme Court, would do his best to avoid McConnell’s blatant partisanship and might find himself clashing with it. In a Trump impeachment, Roberts might prove the most surprising figure of all.
Ford’s pardon destroyed his popularity and cost him his presidency. But he was a man operating in good faith, and honestly thought that with Nixon already removed from power his prosecution would be gratuitous and vindictive. His pardon, however disliked, was constitutional in its basis. Nobody, however, believes that Mitch McConnell operates in good faith. While Ford began from a peak of approval, McConnell stands at the trough of despond. The most recent survey of his favorability nationally by the Harvard CAP/Harris Poll shows him as the lowest ranked among congressional leaders at 25 percent. He also has one of the lowest rankings of all senators in their states, at 36 percent, according to the Morning Consult Poll. In Washington, no matter party affiliation, everybody personally liked the genial Gerald Ford. In Washington today, nobody, neither Democrats nor Republicans, likes Mitch McConnell. Some are intimidated by him, some fall in line in partisan lockstep, some seek to benefit from his favor. He’s no Gerald Ford.
Nobody believes that McConnell operates on a fair, sincere or moral basis, though he is predictable. As time has passed he has become ever more brazen in his zealotry. When Barack Obama became president, McConnell’s agenda was to destroy him. “The single most important thing we want to achieve is for President Obama to be a one-term president,” he stated. When McConnell prevented the Senate from holding hearings on Merrick Garland, an eminently qualified nominee for the Supreme Court, he suppressed the Senate’s constitutional duty to advise and consent. “One of my proudest moments was when I looked Barack Obama in the eye and I said, ‘Mr. President, you will not fill the Supreme Court vacancy,’” he crowed. And there’s his threat to President Obama not to make a public statement in 2016 about the Russian interference in the presidential election to help Trump. And so on.
McConnell’s political strategy for retaining the Senate in the 2020 election is straightforward. He is packing the federal courts with reactionary clones from the approved list of the Federalist Society to arm Republicans with its donor class concerned about deregulation, the evangelical right, and the Trump base. At the same time, he is blocking normal senatorial process or regular order to take up any bills that the House has passed. He has refused committee hearings, conferences, and votes. There are no compromises because there is no legislation. “We can walk and chew gum at the same time,” said Pelosi, adding about Trump, “I hope he can, too.” But McConnell simply walks away. More than 150 bills that the House has passed languish in limbo. Through strangulation of the Senate body, McConnell seeks to rescue the political lives of his endangered Republican members. He is saving them from the temptation of voting for any version of any bill that might remotely offend “the base.” For all intents and purposes the Senate has ceased to function except to rubber-stamp right-wing judicial nominees. “Think of me as the Grim Reaper,” McConnell boasts.
The mutual contempt of Trump and McConnell is notorious. Trump could care less for the Senate or any institutional stumbling block to his will. He scorns those who represent such institutions. In private Trump has derided McConnell as “boring,” the least offensive of his insults. When McConnell failed to repeal the Affordable Care Act in 2017, Trump fired off a storm of tweets against him. “Can you believe that Mitch McConnell, who has screamed Repeal & Replace for 7 years, couldn’t get it done.” And: “The only problem I have with Mitch McConnell is that, after hearing Repeal & Replace for 7 years, he failed! That should NEVER have happened!” The two men ceased speaking for weeks. They since claimed to have restored a working relationship, but Trump has little interest in accommodating McConnell and the Republican Senate on tariffs, national emergencies, and a host of other issues. Virtually reducing the Senate agenda to judicial nominations, moreover, has not particularly tempered Trump’s impulse to create chaos. But McConnell needs him because his members must have “the base” for their reelections and his continuing control of the Senate. Like Vladimir Putin, McConnell views Trump as a useful idiot, except when he’s an out of control idiot. With a potential impeachment looming, Trump would desperately need McConnell, whom he has tended to regard as a vestigial part of a government that gets in his way. (See: U.S. Constitution.) They have become each other’s hostages.
As McConnell defends Trump from his crimes committed with impunity, McConnell’s own impunity would not protect him. It would become an aspect of a larger political problem. The closer a Senate trial would approach, McConnell would become the face of the Republican Party alongside Trump. He has hitherto flourished only in the shadows. In a trial the puppet master would be pulling the strings exposed before the curtain. But he would find himself in the glare of the klieg lights. Suddenly, there would be an unrelenting focus not only on his underhanded manipulations but also on the unsavory influence of lobbyists within his office, his wife’s family’s money, their backing of his career, her efforts for special treatment to benefit their financial interests, and her actions as Secretary of Transportation to deliver favored projects to bolster his reelection in Kentucky.
Quite simply, McConnell cannot bear scrutiny, and he would not bear it well. Daylight would not be kind to him. He is not ready for his close-up. Thrust onto the center stage as the chief orchestrator of Trump’s defense, he would increasingly become a negative factor for the more vulnerable Republican senators running for reelection. They would no more be able to escape their subservience to him than their partisan captivity to Trump. McConnell would set the Republican candidates on fire in the 2020 election.
How a Senate Trial of Trump Would Threaten the Republican Senate
The election that installed Mitch McConnell as the Majority Leader of the Senate was a high watermark of the Republican Party. In the 2014 midterms, Republicans captured nine Senate seats and 13 in the House. Their majority in the House reached their greatest number since 1928. Republicans also gained two governorships to give them control of 31 and their largest majority of state legislatures since before Franklin D. Roosevelt was elected. That moment of extraordinary conquest in which McConnell was elevated, suggesting that the Republican Party was the natural party of power and a party on the rise, imbues his arrogance and impunity.
Nearly all of the Republican senators up for reelection in 2020 were members of the triumphalist class of 2014. They escaped the terrors of 2018 when the Republicans lost 40 House seats. But now they confront a radically transformed electorate with moderates and suburbanites still in flight from the Republicans and Trump. The vast majority of a new generation entering the voting booths finds the Republican Party abhorrent. Each cycle the percentage of Latinos voting edges up in obvious states such as Texas and Arizona and less obvious ones such as Georgia and Iowa. Democrats won women’s votes by a 19-point margin in 2018, an increase of six points over that for the Democratic presidential candidates in both 2016 and 2012. Counties that shifted by 10 points to the Republicans in 2016 flipped 9 points back in 2018, according to Edison Research. Catalist, a Democratic voter targeting firm, calculated that three-quarters of the switchers were Trump voters. Across the country, Republican politics has turned into a frantic search for ever more elaborate schemes of voter suppression.
One of the most influential Republican research companies, Public Opinion Strategies, advised this month in a power point presentation that Republicans face a wipeout in 2020 among young voters, women and the college educated. To counter these trends, the Republican consultants recommend that some voters might speculatively be persuaded to back Trump on “some of policies he is supporting” even though they “don’t approve of the job Trump is doing as President.” If that ploy doesn’t work, POS urges another tack. “Our firm has spent the past few months focusing on this topic of socialism and the 2020 election,” the power-point presentation stated. “We can win this fight, but it will not be as easy as you think.” The document mentions nothing about public attitudes toward Trump’s abuse of power, corruption and crimes, any investigation, or impeachment. The avoidance of all of these subjects in the polished product of a premier Republican consulting firm is a revealing symptom of denial.
The more noxious that Trump is to voters, the more he poses a menace to the Republicans. Four Republican senators and maybe more face existential peril in 2020. If only those four were to lose and the Democrats do not suffer losses, McConnell’s majority of 53 would be erased. Cory Gardner of Colorado, Susan Collins of Maine, Thom Tillis of North Carolina, and Martha McSally of Arizona are already in political trouble. Trump sinks all, just as he drags down other Republicans. Trump is the Republican cement shoes.
Cory Gardner has a favorability rating of 35 percent, according to the Morning Consult Poll. In 2018 midterm elections in Colorado, for the first time, unaffiliated voter turnout was higher than that of either the Democratic, which was second, or the Republican parties. In 2014, Republican turnout had been first. According to a surveyconducted by Magellan Strategies, a Republican political consulting firm, “There is no question that Donald Trump had a negative impact on Republican candidates, with 34% of unaffiliated voters saying they were less likely to vote for a Republican candidate because of his influence. In addition, President Trump’s job approval among all unaffiliated voters is toxic, with only 31% approving of the job he is doing, 62% disapproving, and 48% strongly disapproving of the job he is doing.” In Colorado, Magellan Strategies found, “A 2020 Presidential ballot test finds 55% of unaffiliated voters supporting the ‘generic’ Democratic candidate, 23% supporting Donald Trump, 4% supporting an ‘other’ candidate and 17% were undecided.”
Susan Collins thought she had dodged a bullet with her affirmative vote for Bret Kavanaugh’s confirmation to the Supreme Court when the nonpartisan Critical Insights on Maine Poll found her approval rating afterward to be 51 percent. But its latest poll shows a sharp fall to 41 percent. Voter sentiments about the state of the economy—67 percent believe it will be about the same or better over the next year—has not boosted her. Only 31 percent of Mainers approve of Trump, a decline of ten points, equal to the number that Collins has lost. Her faltering has now attracted a strong Democratic challenger, Maine House Speaker Sara Gideon. Collins responded by voting against one of Trump’s far right anti-gay judicial nominees. But an impeachment would wildly shake her highwire.
Martha McSally, appointed to the Senate by a Republican governor to replace the deceased John McCain in 2019 after losing the race for an open Senate seat to Democrat Kyrsten Sinema in 2018, has an approval rating of 35 percent, according to the Morning Consult Poll. Trump’s approval rating is 45 percent compared to a disapproval of 51 percent. An Arizona Republic poll in October 2018 showed that independents view him unfavorably by a margin of 56 percent to 34 percent. In 2020, McSally will face as her Democratic opponent the folk hero Mark Kelly, the astronaut and husband of Gabby Giffords.
Thom Tillis has a favorability rating of 34 percent, according to the Morning Consult Poll. Trump’s disapproval rating in North Carolina tops 52 percent while his approval is 41 percent, according to an Emerson Poll, and Tillis trails his likely opponent, state senator Erica Smith, 46 percent to 39 percent. The North Carolina Republican Party is deeply fractured. Tillis faces a primary challenge from Garland Tucker III, the retired chairman and CEO of Triangle Capital Corporation, an ideological right-winger who insists the very conservative Tillis holds certain moderate heresies, and whose campaign is being run by revanchist operatives from the team around the late far right Senator Jesse Helms.
An impeachment trial in the Senate would trap the most vulnerable Republicans and others who would find themselves exposed in an impossible predicament. There would be no middle ground between acquittal or conviction of Trump—between alienating swing suburban, young, women, and independent voters or angering the Trump base. Regardless of where the Republican candidates turned they would supercharge their unfavorable ratings.
The Constitutional is the Political
Several arguments have been offered in favor of an impeachment inquiry. Special Counsel Robert Mueller stated that because the Justice Department Office of Legal Counsel policy against indicting a sitting president and principles of fairness precluded him from making a criminal accusation about the president’s actions, the responsibility rightly falls to Congress. The Mueller Report, filled with incontrovertible evidence, was delivered to the House in April, but there has been no impeachment inquiry.
There is also the argument that apart from the Mueller Report there are other sufficient causes for opening an inquiry. After all, Trump was essentially named as an unindicted co-conspirator, “Individual 1,” in the case of a campaign finance felony for which his personal attorney, Michael Cohen, was sentenced to three and a half years in prison. Trump’s brazen violation of the Emoluments Clause of the Constitution in order to engage in self-enrichment suggests that he may meet a standard of bribery (an offense specifically included in the Impeachment Clause). He continues to profit personally from foreign nationals staying at his Trump International Hotel in Washington who are beneficiaries of his direct policy decisions.
All these arguments and several more have been advanced on the merits of various charges that might be presented. More than one thousand former federal prosecutors, for example, have signed a statement saying that if Trump were not a sitting president he would be indicted for multiple felonies involving obstruction of justice based on the facts presented in the Mueller Report. But, then, there are political arguments.
For Pelosi, a few arguments have been crucial in her forestalling an inquiry. Her statements have not exactly evolved so much as wandered in a stream of deflection, frustration, and indecision. The standards she has suggested for an inquiry have shifted without ever firmly settling in any one place. Consequently, she has been driven by events she has sought to avoid.
She has said about impeachment, “I don’t think we should go down that path, because it divides the country. And he’s just not worth it.” She also said, “You’re wasting your time, unless the evidence is so conclusive that the Republicans will understand. Otherwise, it’s a gift to the president.” But the true “gift” would be to give up the power to launch an impeachment inquiry.
She said before the release of the Mueller Report, “And we shouldn’t impeach a president because of a political reason, but we shouldn’t not impeach a president if the evidence is there for impeachment.” Weighing the absence of evidence, she resorted to a double negative to reach an abstract positive.
She said after the report’s release, “We can investigate Trump without drafting articles… the facts regarding holding the president accountable can be gained outside of impeachment hearings.” Exactly what that process of accountability might be is vague. Relinquishing the judgment that impeachment provides would render hearings weightless. Only impeachment offers the constitutionally prescribed means of accountability.
Then, she said that opening an impeachment inquiry would shut down the five committees carrying on various investigations into Trump’s misconduct. “You want to tell Elijah Cummings to go home?” she reportedly said, referring to the chairman of the Oversight and Reform Committee. But the Judiciary Committee is the only proper committee mandated to determine the basic constitutional question of Trump’s abuses of power. The other committees do not have authority over judging a president’s high crimes and misdemeanors. This is not a question of turf, but a designation assigned by the Constitution. Only an impeachment inquiry with constitutionally augmented powers, moreover, would assuredly secure the information that Trump is holding. There’s nothing then stopping other committees from assessing that information for their purposes.
And the Speaker said, “He wants to be impeached, so he can be exonerated by the Senate.” It may be, though nobody knows, that Trump believes he would emerge from an impeachment popular at last. But he is the most consistently unpopular president since polls have been taken of presidents. It is fanciful to project that a public fully informed of his high crimes and misdemeanors would reverse its entrenched low opinion of him.
Then, Pelosi stated that Trump is guilty of the offenses that were charged against Nixon. “Let me be very clear: the president’s behavior, as far as his obstruction of justice, the things that he is doing, it’s in plain sight, it cannot be denied — ignoring subpoenas, obstruction of justice.” The investigations underway might lead to impeachment, but “we’re not there yet,” she added. “Get the facts to the American people in our investigation … it may take us to a place that is unavoidable in terms of impeachment, but we’re not at that place.”
And she stated that the case for impeachment is being made. “We will build an ironclad case to act.” But it’s unclear how the cases in the courts to unlock Trump’s information will be resolved, nor how long they will be drawn out as Trump attempts to push the entire matter into the campaign year.
Then, Pelosi said that the Senate must be ready to accept a trial before there could be an impeachment. “We have a defiance of the Constitution of the United States, and so when we go down this path, we have to be ready, and it has to be clear to the American people, and we have to hope that it’ll be clear to the Republicans in the United States Senate.” But insisting on a receptive Republican Senate as a condition for an impeachment would end it before it would start. It would concede the authority of the House to the Senate. It’s a constitutional short-circuit.
Then, after Attorney General Barr distorted the conclusions of the Mueller Report and the House Judiciary Committee threatened to hold him in contempt for refusing to give the committee an unredacted text and underlying evidence, Pelosi remarked about Trump, “He’s becoming self-impeachable.” But impeachment, like romance, can’t be achieved alone. Suggesting that Trump could impeach himself attributes magical power to his narcissism. And even though Trump baits Pelosi and the Democrats, in a rare moment of honesty he stated that he does not want to be impeached. “It’s a dirty, filthy, disgusting word,” he said about impeachment. He understands that impeachment would be a very bad thing for him, even if the House leadership actually thinks or just pretends it would not be.
Then Pelosi said, “I don’t want to see him impeached, I want to see him in prison.” But impeaching Trump would not shield him from being prosecuted once he leaves office. One act does not preempt the other. Wishful thinking about Trump in an orange jumpsuit as a means to abdicate an impeachment inquiry is a retreat into fantasy. Pelosi’s spokesperson explained that her statement was “consistent with her position that he needs to be removed electorally in 2020.” In other words, the campaign would substitute for an inquiry.
Then, Pelosi said, “I wish that his family or his administration or his staff would have an intervention for the good of the country.” But whether Trump would be amenable or susceptible to counseling is more than a little whimsical. Analyze that? In any case, the framers did not presciently write therapy into the Constitution; impeachment is the only remedy stipulated for “intervention” for abuse of office.
Pelosi’s true chief anxiety, outweighing all other stated considerations so far, is of the fate of the 43 Democratic members elected in 2018 from Republican districts. She is worried that potentially offending Trump voters through an impeachment might threaten those seats and therefore her majority of 18. She lacks faith in those swing voters, largely suburbanites, who in 2018 voted for Democrats. Having made a personal decision to scrap Trump, they would have to repudiate their own hard-won thinking to be able to return to him. For those who have discarded Trump, he remains the same man they have rejected. Yet Pelosi’s ambiguous strategy comes down to the notion of the supposed fickleness of voters reversing themselves to embrace a figure they have already decided is repellent.
So, the various committees beat on against the current, waging their struggles for witnesses and documents while Trump resists their subpoenas. They pin their hopes on the uncertain outcomes of slowly winding court cases and by calling occasional hearings with experts who are placeholders for the key witnesses.
Rather than holding a formal inquiry with full powers that systematically presents the first-hand evidence of Trump’s offenses and which rivets and educates the public on a daily basis through saturation televised coverage, Pelosi trades insults with Trump. She has accused Trump of a “temper tantrum,” saying, “I pray for the president of the United States,” called for a family “intervention,” said “Maybe he wants to take a leave of absence,” and, “When the ‘extremely stable genius’ starts acting more presidential, I’ll be happy to work with him on infrastructure, trade and other issues,” and called him “villainous.” He called her “a mess,” “a disaster,” and “a nasty, vindictive, horrible person.” On it goes.
Pelosi has an uncanny ability to locate the sensitive nerve to belittle Trump and incite his rote undignified response. Vileness is Trump’s stock in trade. Pelosi’s talent at fencing with the bully may evoke admiration from the media and the Democratic faithful, but it is at odds with her very strategy that underlies why she is really fending off an impeachment inquiry. If she is apprehensive about alienating Trump voters in swing districts held by Democrats then nothing could be more guaranteed to arouse their ire than a woman constantly hurling insults to demean their manly hero. But without the rigor and gravity of an inquiry brandishing the evidence of his high crimes, she is thrown back to play in the smoky den of the comedy club with Trump. For his part, Trump rouses his base against the ersatz impeachment without facing the real thing.
Meanwhile, waving away an impeachment inquiry, Pelosi backhandedly refers to the potential of some breakthrough in some courtroom about some subpoena. Of course, even if there is a favorable ruling in one case it would not provide the basis for a consistent demonstration of all the facts that only an inquiry could provide. If a contempt ruling forces a witness whose account already appears in the Mueller Report to repeat their testimony in public it is a foregone conclusion that it would confirm Trump’s criminality. The pressure for an impeachment inquiry would inevitably build—all roads lead to Rome. Then the preliminary scattershot phase would be the prelude to accountability—well, maybe. But time passes.
And perhaps nothing happens.
Pelosi’s worst-case scenario would be of events flying out of control through studied passivity. That scenario would stem from a failure to impeach, which Trump would seize upon as vindication. The worst case would be when the Democrats find themselves at the end of the day at a place where there would have been no inquiry, no methodical presentation of a case, no eyewitnesses (at least not in any timely fashion), no organized education of the public. Public opinion on Trump’s crimes would not have cohered, but instead been allowed to diffuse and dissipate. The Democratic House caucus would descend into a cacophony, some self-justifying the absence of an inquiry as the heart of prudence and others decrying it as cowardice. Without an inquiry the opening for the Democratic electorate to be galvanized would have been lost. With Trump scot free, the Democratic base, which overwhelmingly supports impeachment, would likely feel deflated, more than a bit demoralized, even feeling betrayed, some thinking aloud that their leaders had been frightened off, yet still certain the Mueller Report got it right but wondering that it was pointless, sensing that democratic norms are being conceded on all sides, and their enthusiasm gap widening.
Emboldened Republicans, for their part, would proclaim Trump’s innocence. Conspiracy theories would gain traction about the whole story as a Deep State plot, Mueller as a fraud and Democratic tool, and the true crime to be “Russiagate” itself, which Attorney General Barr champions to give political cover. Neither Republican members of the House nor the Senate would ever have had to put themselves on record on Trump’s crimes. They, too, would have escaped judgment. The media would stand convicted as “the enemy of the people.” Its factual reporting would be dismissed as “fake news.” If it were not “fake,” why didn’t it lead to a real inquiry? But all of the above would not complete the worst case.
And, then, Trump would be reelected. The Senate would remain under the thumb of Mitch McConnell. And, then, in 2021, would the House impeach? Absolutely not. Trump would say the voters have just decided, knowing the full record, that he should stay in office.
There remains another argument that has been offered about impeachment. It is that the constitutional is the political, that the obligation to defend the Constitution from abuse of public trust is a challenging but necessary politics, and that crimes committed against the Constitution are by their nature crimes against the political order. Investigating and judging Trump for his particular offenses against representative government, the rule of law, and democracy, the letter and the spirit, would fit this argument. It is the argument of Alexander Hamilton, in The Federalist Papers, No. 65:
“A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.”
[Editor’s note: The National Memo previously reprinted Sidney Blumenthal’s “An Open Memo: Comparison of Clinton Impeachment, Nixon Impeachment and Trump Pre-Impeachment,” from Just Security, which also published a series in conversation with Blumenthal’s Open Memo that included John Dean, Ryan Goodman, Hon. Elizabeth Holtzman, Kevin Kruse and Julian Zelizer (co-authored), Walter Pincus, and Jill Wine-Banks.]
Sidney Blumenthal, the former assistant and senior adviser to President Bill Clinton and senior adviser to Hillary Clinton, is the author of All the Powers of Earth, the third volume of his five volume biography, The Political Life of Abraham Lincoln, to be published by Simon & Schuster in September.