If you were born at the right time, you will get to fully observe three presidential impeachment fights. The first two were high dramas over high crimes and misdemeanors, and the third episode, likely opening in earnest in January, will be as riveting as the first two.
First, the key, long-standing assumption about any president: He or she can be removed for misdeeds only through impeachment by the House and trial and conviction in the Senate — not by ordinary criminal indictment, trial and conviction. There is a small rump of talkers and professors who want to lay aside this truth, but it is an obvious one, first declared by Alexander Hamilton in Federalist 69: “The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.”
A sitting president cannot be indicted. That’s the conclusion of the vast weight of scholarly opinion, as well as the plain reading of Hamilton. It was also the opinion of the Justice Department in 1973 and confirmed in 2000: “The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”
Many books have been written on impeachment; millions of words in fact. The quick summary: An impeachable offense is whatever a majority of the House says it is. Thus, the incoming new Democratic majority could impeach President Donald Trump on any single theory or many at once. Certainly, cable news is full of breathless speculation about what special counsel Robert Mueller has or may possibly have, and to what Michael Cohen pleaded guilty, and, of course, there are charges of unconstitutional emoluments received and inaugural committee contributions mislaid. Of the original charge — that the president and his campaign colluded with the Russian government to bring about his election — there is still only the thinnest of reeds. We all await — at least we should await — the special counsel’s report on his investigation.
But that the House Democrats are going to drive toward a vote on one or more articles of impeachment seems, to me, predestined. The animal need for House members to be on television combined with the already accelerating race for the Democratic presidential nomination guarantees that one dynamic will feed off the other as surely hurricanes do over warm ocean water. The big blowoff is coming. It will last months and months.
And, in the end, there is this, from Article I, Section 3 of the Constitution: “The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present.”
So put together in your head a list of the 20 Republican senators likely to vote to convict and remove the president on the basis of what is known right now, for assuming a lockstep Democratic caucus, it would take all 47 Democrats and Independents plus 20 members of the GOP caucus.
It is not an impossible set of circumstances to foresee, only an extremely unlikely one — not least because of the acquittal of President Bill Clinton, whom very few serious people deny did indeed lie under oath, and whose other misdeeds seem larger, not smaller, from this side of the #MeToo moment. The precedent of Clinton’s acquittal is Trump’s greatest shield. The hard political lessons Republicans learned along the way — especially during the 1998 midterm elections, which saw the Democrats pick up five House seats after a year of GOP attacks on Clinton (no change occurred in the Senate) — should also caution the Democrats.
But it won’t. The difference now is the militarized industrial news complex that simply must be fed. It will gorge itself on impeachment. Rep. Jerrold Nadler, D-N.Y., the incoming chairman of the Judiciary Committee, will be the new Peter Rodino for those old enough to recall the Nixon impeachment drama. Rudy Giuliani will be reprising the role played by James Carville in the Clinton impeachment drama, going after critics and prosecutors of Trump the way the Ragin’ Cajun went after independent counsel Kenneth Starr and team.
It will be a ratings bonanza. Who likes ratings bonanzas? Who can command the media — or any particular outlet — and appear on 10 minutes notice? Who, in short, might learn to love “the process?” Trump, of course. It isn’t a normal presidency seeking normal historical achievements. He already has some of those in his massive tax cut, his two justices on the Supreme Court, a much-needed military rebuild and a new realism regarding China. This president can look at his markers already down on the table and actually come to relish the battle.
Don’t be surprised. Be prepared.
Hugh Hewitt hosts a nationally syndicated radio show and is a professor of law at Chapman University’s Fowler School of Law.