The Impeachment of Trump

In December 2019 it was announced that US President Donald Trump was to face impeachment proceedings in Congress. Trump’s Democratic Party opponents accused him of asking Ukraine’s government to find damaging information about one of the candidates most likely to secure the Democratic Party’s nomination for President in the November 2020 election, Joe Biden. The latter’s son Hunter had worked for a Ukrainian energy company when Joe Biden was Barack Obama’s VicePresident (2009–17). Trump was said to have abused his power in an attempt to increase his chances of re-election, and then tried to obstruct Congress’s investigation into his actions.

Impeachment is potentially the most dramatic form of oversight that members of Congress can exercise over a sitting President. It is one of the checks and balances written into the Constitution. Article II, Section 4 states that ‘The President, The Vice-President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanours.’ The terms high crimes and misdemeanours are not clearly defined but they are understood to mean corrupt practices or serious abuse of government office. It is not a criminal process, and the only penalties that can be suffered are loss of office and disqualification from future office-holding. Impeachment can also be applied to other federal office holders, including members of the judiciary.

Article I, Section 2 of the Constitution explains that impeachment is initiated by the House of Representatives. Section 3 outlines the role of the Senate, which acts as a court to try the President. The Chief Justice (the most senior member of the Supreme Court), currently John Roberts, presides over the trial. Members of the House of Representatives act as the prosecution. To convict the President would require a two-thirds vote – i.e. 67 of the 100 Senators would have to vote for his removal. If the President were convicted, he would have to leave office and be succeeded by the Vice-President. However, from an early stage in the Trump case it was considered highly unlikely that this would happen. In view of the growing partisanship of US politics, voting was expected to take place on party lines, and the Republican Party controls the Senate with a majority of 53–47. This meant that at least 20 Republicans would have to rebel against the President in order to convict him. Has it happened before? The history of impeachment in the US did not suggest that the chances of a successful conviction were high. It has only been used on two occasions, and both Presidents survived. In 1868, after the Civil War, there was a conflict between President Andrew Johnson and his opponents in Congress. They laid a constitutional trap for him by introducing the Tenure of Office Act, denying him the right to remove Cabinet members. Impeachment proceedings were brought when he sacked his War Secretary. He survived the vote in the Senate by just one vote. The other occasion was the impeachment of Bill Clinton in 1998–99. He was accused of perjury (lying under oath) and obstructing the course of justice. The case against him entailed a sexual harassment case brought by Paula Jones, a civil servant who had met him when he was Governor of Arkansas, and allegations that as President he had lied about an affair with a White House intern, Monica Lewinsky. Clinton was not convicted, with neither of the two articles of impeachment gaining even a simple majority in the Senate. The only other President to come close to impeachment was Richard Nixon, against whom articles were brought in connection with the 1974 Watergate scandal. However, before the process could be completed Nixon resigned the Presidency Trump was the first US President to seek re-election after being impeached. Johnson was not nominated again by his party. Clinton was ineligible to run again since he was impeached during his second term.

Donald Trump maintained that his Democratic Party opponents had been seeking to remove him from the White House by unfair means, almost from the start of his presidency. Earlier in his term of office he was investigated by a special counsel for the Department of Justice, Robert Mueller, in connection with claims of Russian government interference in his 2016 presidential election campaign. The Mueller report, published in April 2019, did not find evidence of any conspiracy involving Russia but nor did it explicitly exonerate Trump of any wrongdoing. Some Democrats wanted to impeach Trump over these allegations but Nancy Pelosi, the Speaker of the House of Representatives, did not feel that there was a strong enough case. An experienced politician, she was aware that a failed bid could backfire against the party that launched it. What was the case against Trump? The impeachment proceedings against Trump originated with a telephone conversation in July 2019 with the President of Ukraine, Volodymyr Zelensky. According to a White House whistle blower, later identified as a CIA operative, Trump had used the withholding of military aid as a lever to get Ukraine to investigate the business dealings of Joe and Hunter Biden in the country. Trump denied the allegations and claimed that nothing inappropriate had occurred in the phone call. He also insisted that when Joe Biden was Vice-President, he had sought the dismissal of Ukraine’s chief prosecutor because he had been investigating a firm for which his son worked. These were serious allegations because, if true, they would mean that Trump was trying to influence a foreign power to damage the reputation of a man who might be running against him for the US presidency a year later. His aim, his opponents alleged, was to further his chances of re-election in November 2020 by illegitimate means

What led up to the impeachment charges? The Democrats were confirmed in their determination to bring charges by evidence presented to members of the House of Representatives. In October 2019 acting US ambassador to Ukraine, William Taylor, insisted that Trump had tied military aid to a requirement that the country investigate the Bidens. He also spoke about an ‘irregular, informal policy channel’ to Ukraine, involving Trump’s lawyer, Rudy Giuliani, which was separate from the regular diplomatic processes. Gordon Sondland, US ambassador to the European Union, further maintained that an invitation to Ukraine’s President to visit the White House was conditional on his launching a probe. As part of his evidence to the House he said that he had followed Trump’s instructions to put pressure on Ukraine to investigate the Bidens. He also said that Secretary of State Mike Pompeo, former National Security Adviser John Bolton and other key administration figures knew what was happening. This was the background to Nancy Pelosi’s announcement in December 2019 that Trump would face two articles of impeachment, alleging abuse of power and obstruction of Congress. According to the Democrat leadership, the President ‘abused the power of his office to solicit foreign interference in our elections for his own personal political gain, thereby jeopardising our national security, the integrity of our elections and our democracy’. How was the trial to be conducted? Nancy Pelosi delayed sending the articles of impeachment to the Senate, in the hope of first gaining some assurances on how the trial would be managed. Pelosi wanted Mitch McConnell, the Republican Senate majority leader, to allow new witnesses and evidence to be presented, which would give more time for scrutiny of Trump’s actions. However, Pelosi submitted the articles of impeachment anyway when this request was rejected. Following the precedent of the Clinton trial, McConnell stated that the Senate would hear arguments from the prosecution and defence, then have counsel for both sides answer senators’ written questions, before deciding whether to admit new witnesses or evidence. This would have the effect of shortening the trial, to Trump’s presumed advantage.

McConnell also insisted on compressing 24 hours of debate into just two days of Senate sessions, with much of the proceedings taking place late at night when few Americans would be following the proceedings. Democrats criticised him for using his control over the rules governing the process to favour Trump, when he should have been acting impartially. They did not succeed in securing more witnesses or documents, but they did force McConnell to allow the opening arguments to be heard over three days. The articles passed the House of Representatives, where the Democrats currently have a majority, on a vote of 228 to 193. Seven House Democrats, led by chairman of the House intelligence committee Adam Schiff (California) and chairman of its judiciary committee, Jerrold Nadler (New York), were appointed as ‘impeachment managers’ to lead the prosecution. This paved the way for a Senate hearing in midJanuary 2020. Trump appointed two well-known lawyers to head his defence. One was Kenneth Starr, who had been the independent counsel who led the investigation into Bill Clinton 20 years earlier. The other was Alan Dershowitz, a Harvard law professor who had been involved in several highprofile cases. What was the impact of political polarisation on the process? In early indications that the issue would be resolved on party lines, Republicans rallied behind Trump, dismissing the charges as motivated by partisanship. This is a crucial difference between the era of Nixon and that of Trump. The former was brought down because leading Republicans felt that the evidence against him was such that they could no longer support him. Since the 1970s there has been a growing polarisation of politics, which means that party loyalties are now much more rigid. Republican Senators feared for their own re-election chances if they voted against a President who remained popular with the party’s core supporters. This worked in Trump’s favour. Significantly, no House Republicans, and all but one Democrat, voted for the articles of impeachment to be passed to the Senate.

What happened in Congress? What was the case for the prosecution? The Democrats argued that Trump had undermined US democracy and credibility in the eyes of the world. By mixing his own political interests up with US foreign policy, he had emboldened dictators abroad and weakened the faith of America’s allies in the country. Adam Schiff developed a broader constitutional point about the importance of constraining the power of the nation’s chief executive, arguing that the President was not a monarch to whom unconditional obedience was expected. He was referring to the concept of checks and balances, designed to ensure that no branch of government exceeds the powers granted by the Constitution. What was the case for the defence? The President and his team rejected the charges as lacking any foundation, describing them as part of a self-interested ‘witch hunt’ and a ‘hoax’. The impeachment, he declared, was a ‘brazen and unlawful attempt to overturn the results of the 2016 election and interfere with the 2020 election – now just months away’. His defence also maintained that the President was within his rights to pursue corruption abroad. They stated that military aid had eventually been granted to Ukraine, without an investigation into the Bidens being announced, and so there was no case to answer. How was Trump acquitted? The central issue in the trial was the dispute over calling witnesses. The Democrats were particularly keen to summon John Bolton, who was reported to have written an unpublished book about his time in the White House. As a conservative insider who had been to the right of Trump on many foreign policy matters, and who had been sacked from his post as National Security Adviser, his testimony was especially prized. He was believed to have been opposed to the President’s approach to Ukraine. Another desired witness was Mick Mulvaney, acting White House chief of staff.

Republicans were determined not to allow the trial to be extended, to the possible detriment of the President’s reputation. There had been speculation that up to four of their number might break ranks to support a call for witnesses. This would have been enough to give the Democrats what they wanted, as a change to procedure requires only a simple majority in the Senate. In the end, however, the call was defeated by 51 to 49 votes. Only two Republicans voted with the Democrats – long-time Trump critic, Mitt Romney (Utah), himself a former presidential candidate, and a noted moderate, Susan Collins (Maine). Trump’s long-predicted acquittal took place on 5 February. The only surprise was that in the first vote, on the charge of abuse of power, Romney joined the Democrats, so that Trump was acquitted by 52–48. On the charge of obstructing Congress, the outcome was a strict party-line vote of 53–47. 4. What was the significance of the impeachment? How did it affect Trump’s presidency? Trump was jubilant at the defeat of what he called the ‘impeachment hoax’. A Republican video, headed ‘Trump 4eva’, showed a never-ending sequence of campaign signs stretching into the distant future. His acquittal immeasurably strengthened his hold over the Republican Party. In the short term his approval rating, which had typically been in the lowto-mid-40s, rose to 49 per cent, suggesting that many Americans regarded the impeachment proceedings as unjustified. Trump was expected to use the impeachment in the election campaign as evidence of the untrustworthiness of the Washington establishment, which had tried to destroy him by unfair means. The outcome supports the idea of an imperial presidency, operating with few constitutional checks. Republican support for a powerful presidency of course pre-dates the Trump years. The party is partly motivated by a desire to see strong leadership in foreign policy. After the 9/11 terror attacks, for example, they supported an increase in federal powers to the benefit of President George W. Bush.

The case for a strong executive is hugely controversial, with one scholar, Mark Rozell, arguing that ‘if the message here is that the president can do what he wants if he thinks it’s in the national interest, that’s a vastly different constitutional system than the one drawn up by the founders of this republic’. The Trump case sheds light on the significance of impeachment as a sanction that can be used against a President. It may be the most dramatic weapon in Congressional oversight of the Presidency but it is rarely used – and so far has never been used effectively against the nation’s chief executive. How did it influence party politics? The impeachment is another episode in the long-term trend towards the polarisation of US politics. Former President Gerald Ford once suggested that an impeachable offence should be defined as ‘whatever a majority of the House of Representatives considers it to be at a given moment in history’. Ultimately Trump was acquitted because his party closed ranks behind him, despite concerns in some quarters over the appropriateness of his actions. The outcome infuriated Democrats, who felt that they had been denied the opportunity of a fair trial for partisan reasons. The anger generated by the trial was dramatised the day before Trump’s acquittal. He refused to shake Pelosi’s hand, and she tore up a copy of Trump’s State of the Union address, shortly after he had delivered it. Both parties’ senators ultimately played it safe, not daring to risk the desertion of their voters by breaking ranks. It was significant that Romney, the only Republican to do so, is not seeking re-election. In spite of Trump’s acquittal, this is not necessarily the end for the Ukraine story. It may be raised again in the run-up to the presidential election. Most commentators expect Trump to win a second term, although this is not a foregone conclusion. It is impossible to predict what revelations may emerge before November, to the possible benefit of the President’s opponents.

Donald Trump’s second impeachment, January–February 2021 Early in 2021 Donald Trump gained the unenviable distinction of being the only president in US history to be impeached twice. The second impeachment was triggered by the events of 6 January, two weeks before he left office, when a mob attacked the Capitol after he had addressed a public gathering in Washington DC. It was a shocking act of political violence, with offices ransacked and proceedings in Congress suspended as members scrambled to safety. Five people lost their lives in the ensuing mayhem. The single article of impeachment was introduced to the House of Representatives on 11 January. Trump was charged with ‘incitement of insurrection’ on the grounds that he had encouraged his supporters to take part in ‘lawless action’ that obstructed Congress from certifying the result of the November 2020 presidential election. Democrats proceeded with the impeachment after the outgoing vice-president, Mike Pence, and other senior Republicans declined to use the 25th amendment to remove Trump from the presidency before the pre-arranged handover date of 20 January. The case was important because, if convicted, Trump would have been disqualified from running for a second term in the 2024 presidential election. His defenders claimed that he had not intended to unleash the mob and that when he encouraged his supporters to ‘fight like hell’, this was a reference to political action rather than physical violence. His defence also argued that the proceedings against him were unconstitutional because, by the time the case came before Congress, he had left office. The element of doubt on this point is an example of the vagueness of the US Constitution. In the event, the Senate voted by 56 to 44 – the majority including six Republicans – to proceed with the impeachment, dismissing the claim that the process applied only to serving office-holders.

The impeachment came to an abrupt halt on 13 February, just five days after the charges were brought before the Senate, when the prosecution withdrew their plans to summon witnesses. The outcome was predictably dictated by partisan loyalties, with Trump acquitted in the Senate by a margin of 57 to 43. This fell ten votes short of the two-thirds majority needed for conviction. Many of the party’s Congressmen were inhibited by Trump’s continuing popularity among Republican supporters, an estimated three-quarters of whom shared his view that he had unfairly lost the November 2020 election as a result of voter fraud. [See A Level Politics 2020 US election case study for more details.] However, Trump’s second impeachment did see a break with the extreme partisanship witnessed a year earlier. Remarkably, ten Republican members of the House of Representatives supported the resolution to impeach Trump on 13 January. Seven Republicans were among the 57 senators who voted for conviction. This indicates a degree of disquiet within the party over the record of the former president. It is worth noting that two of the seven planned to retire from the Senate in 2022, so would not face significant consequences at the hands of their voters. The new Senate minority leader, Mitch McConnell, who had once been strongly supportive of Trump, stated that there was no question that he was ‘practically and morally responsible for provoking the events of [6 January]’. Critics pointed out that despite these words, McConnell had declined to vote for the conviction of the ex-president. Even so, he was publicly attacked by Trump, who blamed him for the Republican Party losing control of the Senate.