Washington Update: The House is Likely to Impeach the President. Then What?
So U.S. House Speaker Nancy Pelosi (D-Calif.) and the Democratic caucus in the House of Representatives are moving forward with an impeachment inquiry. And, according to a growing number of polls – even a recent one by Fox News, which showed a majority of Americans support the House’s decision to pursue the inquiry – the American people are with them. In fact, voters are so open to the idea of impeachment that their impression of Congress has improved since news of the inquiry broke. According to the most recent Gallup poll, approval of Congress by the general public spiked an impressive seven percentage points between September and October – a fact made even more meaningful when one considers that public approval of Congress in September was a paltry 18 percent.
There is no way for the president to tweet around it: impeachment is trending among the American electorate.
Still … will positive public opinion and Democratic determination mean anything, in the end? After all, there is a coequal chamber of Congress that will have a say in this matter. And, as we know, that chamber, the U.S. Senate, still sits firmly in Republicans’ hands.
It would appear therefore that President Donald Trump’s fate rests with Senate Majority Leader Mitch McConnell (R-Ky.). Perhaps that is why, according to CNN, the president has been calling the senator up to three times a day for the past few weeks.
The U.S. Constitution is clear: if a majority of House members vote to impeach President Trump, the Senate must hold a trial. But, as the Atlanta Journal-Constitution helpfully explained way back in April, “there is no set procedure” for that trial. Every element pertaining to how that trial would be conducted would be up to Sen. McConnell
In late September, the majority leader told CNBC that, under current Senate rules, his chamber could not simply ignore the House’s order to conduct a trial. According to Politico, Sen. McConnell also noted “it would take 67 votes to change the current Senate rule for impeachment.”
Those talking points simplify the situation a bit too much. There are at least a handful of ways that Senate Republicans could … well … resolve this situation for the president.
Under the Constitution, the chief justice of the Supreme Court oversees Senate impeachment trials. According to Sarah Burns, associate professor of political science at Rochester Institute of Technology, any single senator could raise questions about the process. Depending on how those questions are answered, Chief Justice John Roberts could dismiss the case against President Trump, “effectively ending the trial before it begins,” presuming Senate Republicans voted en bloc to affirm Roberts’ decision.
Democrats tried this tactic back in 1999 when President Bill Clinton was impeached. It failed, Burns notes, because the upper chamber at that point was controlled by Republicans. If GOP senators used a similar method during a trial today, Burns says the motion to dismiss would likely pass on party lines.
Earlier this month, The New York Times reported that GOP senators actually have organized around the dismissal idea, outlining “that scenario in background guidance circulated over the weekend” and “noting that a motion to dismiss the articles would be allowed under impeachment rules ...”
Burns says Republicans also could use other delaying tactics. For example, they could ask Chief Justice Roberts to keep certain individuals from testifying at a trial – or they could ask the chief justice to subpoena witnesses that might change the dynamic and optics in order to put President Trump’s actions in a better light. For example, Burns says GOP leaders could try to call former Vice President Joe Biden and his son Hunter to testify.
That maneuver certainly would delay proceedings – and obviously would turn the impeachment trial into an electioneering tool that could last all the way until next November. (That’s a lot of infrastructure weeks from now.)
Many analysts believe the Senate must take some action, that dismissing that case would be an abdication of senators’ constitutional duties. Donald A. Ritchie, Senate historian emeritus told The New York Times, “It is a constitutional responsibility. When you look at the weight of history, I think they would feel they have to do something.”
If Republicans choose to “do something,” they also could decide that moving quickly is the best defense for President Trump.
It turned out to be for President Andrew Johnson, who was the first commander in chief to face forced removal from office. In Johnson’s case, it was an opponent’s strategy gone wrong that saved him, not his own.
With President Johnson, the House approved 11 articles of impeachment in March 1868, and the trial was over in the Senate by early May. As the U.S. Senate website explains: “the trial ended in a dramatic fashion” when “Johnson’s fiercest opponents in the Senate maneuvered a vote on only three of the 11 articles of impeachment, believing those three offered the greatest chance to gain conviction.”
Their calculation was wrong. “On May 16, 1868, in a dramatic call of the roll, 35 senators voted to convict the president of ‘high crimes and misdemeanors,’ while 19 senators voted to acquit. A clear majority voted against the president, but the tally fell one vote short of the necessary two-thirds majority to convict.”
President Johnson’s opponents failed again less than two weeks later “when the Senate voted on articles two and three” and “the result was the same.” Senate historians note that among “the 19 senators who voted to acquit were seven ‘Republican Recusants’ who defied their party to save the impeached president.” Iowa Sen. James Grimes said, “I cannot agree to destroy the harmonious working of the Constitution … for the sake of getting rid of an Unacceptable President.”
Which brings us to another fact with which Democrats must contend: U.S. presidents are batting 1.000 when facing impeachment trials. The U.S. Senate has conducted only two trials in the entire history of the country, for Johnson, and for President Bill Clinton. As noted, Johnson survived by just one vote. President Clinton’s opponents came considerably less close to removing him from office: they were 22 votes short.
And not only did President Johnson serve out his term in the White House, as Senate historians put it, “in 1874 he ran a successful senatorial campaign and returned to Washington—to the very chamber where he had been tried and acquitted a few years earlier.”
For good reason impeaching a president is difficult. Gallup and other survey organizations might be showing that Americans want President Trump removed from office, but this question likely will not be settled by Congress. It will be decided on Election Day in November 2020.
Steve Boms is the founder and President of Allon Advocacy, LLC, a Washington, D.C.-based public policy consulting firm. Steve has spent his career focused on complex financial services public policy issues, having worked in the United States Congress on the committee with jurisdiction over banking. He has led advocacy efforts and public policy teams globally for equity options exchanges, large U.S.-based financial institutions, and leading fintech firms. In addition to working directly with Allon's clients, he is a frequent conference panelist and his perspective is solicited by reporters on the technology, financial services, and regulatory beats.
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