By David K. Shipler
“When you strike at a king, you must kill him.” So said Ralph Waldo Emerson, as recalled by Oliver Wendell Holmes, Jr. It is an admonition that ought to be placed as a screen saver on the computers of all the eager Democrats in the House of Representatives who are licking their chops at the prospect of impeaching President Trump. A king who survives an attempt on his throne can be wild with vengeance, especially when backed by zealous toadies and street fighters.
If the report by special counsel Robert Mueller turns out to be an anti-climax after nearly two years of hype, Republicans who have circled the wagons around Trump will probably remain in place. As long as they don’t see Trump as a political liability, he’s safe, for impeachment is a legal-political hybrid. Without a smoking gun linking him explicitly to Russian manipulation of the 2016 election, hardly any House Republicans would vote for articles of impeachment, and the Republican-led Senate would fall far short of the two-thirds needed for conviction. The Republican Party of 2019 is a very different animal from the Republican Party of 1974, when its leaders, Senator Barry Goldwater among them, told Richard Nixon to resign or be impeached and convicted.
Therefore, two other scenarios for dumping Trump seem more conceivable:
1. A Democratic electoral sweep in 2020 decisive enough to force the Republican Party into a cowering fit of reform.
This is the preferable outcome. If Democrats take the White House and the Senate, and keep or increase their majority in the House, Republicans might regroup as a more centrist, responsibly conservative movement that conducts serious debates over serious issues. Instead of rightist radicalism that favors the destruction of government, a reborn Republican Party might try to govern on behalf of a broader array of Americans.
Such wishful thinking can become reality only with a defeat resounding enough to discredit the hard right. It would be good for the Republican Party and good for the country as a whole, but it requires an uprising of voters who have had their fill of hateful extremism. And that can happen only if the Democrats figure out how to tap the burning energy of their angriest supporters on the left without scaring the wits out of centrists who fear dramatic upheavals in the American system.
The Democrats’ Medicare for all is a great idea—you’d be hard pressed to find a senior who didn’t love Medicare. The Green New Deal is a call to arms against the lethal dangers of climate change, albeit with some impractical goals. Gun control, voting rights, and the like are popular policies already being set into motion symbolically through House-passed bills. They will die in the Republican Senate, but at least they are on the record for Americans to see.
Democratic success might depend less on policy, though, than on a presidential candidate who comes across as authentic to the middle ground of independent voters. She or he has to have the gift of charisma and an articulate vision of decency and progress that speaks to citizens who feel alienated from the nation’s sordid politics, marginalized by its social change, and left behind by its prosperity. A mobilization of conscience and renewal is required, a New Patriotism.
2. In the face of probable criminal indictments, a resignation by Trump in exchange for a pardon by his successor, Mike Pence, and pardons for his family members who are also in jeopardy.
A sitting president cannot be indicted, according to current Justice Department guidelines, but from what we know of various cases already brought by Mueller and federal prosecutors, plus congressional testimony by the president’s former lawyer Michael Cohen, Trump appears likely to have committed numerous crimes before taking office—including bank fraud and tax fraud—and several as president, including illegal campaign expenditures in the form of hush money to the porn star Stormy Daniels. More serious would be a special counsel finding that he also committed perjury and obstruction of justice.
If Trump thought that he was likely to be prosecuted after leaving office, a reelection bid would be a big gamble. If he lost, a Democratic president could hardly be expected to issue him a pardon as Republican President Gerald Ford did for Nixon. But if Trump resigned with a pardon from Pence, he would be home free, at least as far as federal charges go. New York State could still file against him for violating state tax and other local laws provided that statutes of limitation had not run out.
A wrinkle in this scenario could have Trump losing the 2020 election, then resigning before the inauguration, giving the presidency to Pence just in time for a pardon. Or, Trump could pardon himself, although that’s a constitutionally debatable act with strong arguments on both sides. The Constitution sets no limits on the pardoning power, but common law as explained by William Blackstone, the 18th-century British legal scholar, precludes judging one’s own case, as Alan Hirsch observes in Impeaching the President. That was “a sacred principle” for Blackstone, Hirsch writes, “and our founding fathers cited it routinely, including James Madison in The Federalist.”
No president has ever been removed from office through the impeachment process sketched by the Framers of the Constitution. Andrew Johnson, who opposed universal suffrage by blacks after the Civil War and vetoed civil rights legislation, went to trial but survived by merely one vote in the Senate. Nixon was caught covering up his operatives’ break-in at the Democratic National Committee headquarters in the Watergate hotel, and enlisting the IRS and other federal agencies against political opponents. Clinton was acquitted by the Senate on impeachment charges of obstruction of justice and perjury in a civil suit alleging sexual harassment.
And Trump? We shall see. Conviction for “Treason, Bribery, or other high Crimes and Misdemeanors,” in the Constitution’s words, can encompass a range of undefined behaviors that probably don’t have to be prosecutable crimes. We have already seen that Trump is incompetent in foreign policy, partial to nepotism, corrupt in using the presidency to enrich himself and his family, inept at running the federal government, emotionally unstable, contemptuous of factual reality, impulsively authoritarian, ignorant of history, disdainful of the rule of law, hostile to the constitutional separation of powers, demagogic in exploiting racial and ethnic hatreds, and on and on.
But his dramatic flaws were clearly visible before his election. Millions of voters didn’t mind. Trump is dangerous, but unless the upcoming Mueller report and congressional investigations persuade the bulk of his supporters of that fact, they would be infuriated by impeachment. Using the ultimate tool of impeachment would—based on what is known so far—provoke an enraged sense of disenfranchisement and betrayal at the grassroots. No Democratic candidate could possibly win them over.
Until some new, dramatic revelations surface, the best hope lies in the ballot box.