The Case for Impeachment Is Still Unclear

The best indicator of what's going to happen is probably Jerry Nadler.

I want to start today’s newsletter with a dose of caution: no one knows anything about what’s going to happen to this president. Yes, federal prosecutors in Manhattan alleged Friday that Donald Trump had committed at least two felonies. Yes, that’s a BFD, as Joe Biden might say. And yes, when the government accuses you of committing federal crimes, that’s usually the end of normal civilian life as you know it.

But these norms don’t necessarily mean anything, as the person in question is not a normal person, but the president. On the one hand, you could say, as the Justice Department said during Watergate, that no sitting president can be indicted. On the other hand, you could say, as US Rep. Jerry Nadler said Sunday, that there’s no reason, historically or constitutionally speaking, why a sitting president can’t be indicted.

Moreover, you could say, as the National Review’s Andrew McCarthy argued Sunday, that “the president is very likely to be indicted on a charge of violating federal campaign finance laws.” On the other hand, you could say, as any historically minded person might, that that’s never happened before, and because that’s never happened before, there’s no reason to say anything, much less indictment, is “very likely.”

McCarthy, who would normally defend Trump, is mistaken when he said: “Prosecutors [in Manhattan] would not have done this [alleged federal crimes] if the president was not on their radar screen. Indeed, if the president was not implicated, I suspect they would not have prosecuted Cohen for campaign finance violations at all.”

Politically, there’s a powerful reason for prosecutors to follow the facts wherever they lead while stopping short of what would, in any other circumstance, be a forgone conclusion. That reason, again, is that Donald Trump is president of the United States.

Don’t get me wrong. Trump could be indicted. I’m not saying that’s impossible. My goal here is to assert strongly that no one truly knows what’s going to happen even when they sound super confident that they know what’s going to happen.

Same thing for impeachment and removal. The press corps is asking Democratic leaders whether they plan to start impeachment proceedings. (You can expect these inquiries to pick up pace and grow in intensity every time federal prosecutors reveal new facts deepening our understanding of how rotten this president is.)

From these repeated inquiries might arise an unrealistic expectation: that this president will be impeached and removed. Again, please allow me stress that this is not likely, not “very likely,” not anything. This is the president we’re talking about.

Impeachment and removal are acts that overturn the will of the American people. (Set aside for now that Trump lost the popular vote.) Impeachment is a political process, not a criminal one. You don’t impeach a president because he broke the law. But breaking the law might be part of why he should be impeached.

The GOP can be blamed for this misunderstanding. Their case against former President Bill Clinton rested on a very narrow set of facts and a very narrow constitutional interpretation of those facts. Clinton lied to a grand jury about his affair with an intern. Ergo, Republicans argued, he must be impeached and removed. Public opinion ultimately disagreed, but not before the GOP’s accusations established in a lot of people’s minds that breaking the law equals grounds for impeachment.

Public opinion will make or break impeaching and removing Trump. (Remember, it takes two-thirds of the Senate to remove a president; and remember, the Republicans control the Senate.) And because of that, watch carefully how House Democrats do two things at the same time: they are going to react to public opinion but also do what they can to influence public opinion, so that it will be hard to tell where one begins and the other ends. Case in point is Jerry Nadler’ interview Sunday on CNN.

Next year, Nadler will be chairman of the House Judiciary Committee, the epicenter of impeachment proceedings, if they happen. In this interview, Nadler makes the case for impeachment while cautioning against it. Trump defrauded voters (by paying hush money to women he had sexual relations with), he said, but that might not be enough to justify impeachment. Trump’s offenses are worthy of impeachment, he said, but that doesn’t necessarily mean the new House Majority will follow that course. This is the kind of push and pull that we can expect to see more of in the coming year. Why?

Because the case for impeachment is still unclear.

—John Stoehr

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