Impeachment: What’s the Verdict of History?

On Wednesday, Donald Trump became the third president in American history to be impeached by the House of Representatives. “Over the course of the last three months, we have found incontrovertible evidence that President Trump abused his power,” House Intelligence Committee Chairman Rep. Adam Schiff said before the vote.

For pundits and Washington insiders, Trump’s impeachment so far has had all the surprise of a Thanksgiving parade, with a House voting in partisan near-lockstep, and a Senate all but promising the president he has nothing to worry about from here. And when the process finally ends, the country expects to go back, more or less, to what passes as normal.

Are we all making a mistake? In the wake of the House vote, Politico Magazine asked its panel of impeachment experts—scholars of constitutional law and political historians who understand this rare process more deeply than anyone else—whether this House vote was really just another news day, or whether we’re living through something as important as impeachment once seemed.

Unanimously, they agree it does matter, and for a range of reasons wide enough to remind Americans just how deep and long-running some of our historical arguments are. Even a symbolic impeachment acts as an important marker, reaffirming America’s foundational commitment to a system built on facts, and drawing a line in the sand for future presidents to heed. Even if Trump emerges unscathed, it has had practical consequences, preventing further coercion of a foreign president by Trump. For one contributor, legal analyst Kim Wehle, impeachment has had a serious impact, if a bad one. She says the unfair process may have done permanent damage to the seriousness of impeachment in the long run.

And one contributor thinks that it’s too soon even to say we already know what the result of this process will be. Trump is a perennial “wild card,” Lawfare COO and impeachment historian David Priess writes, and the president’s inability to control himself might upset an outcome that seems certain now. Here’s where they all landed:

“The variable most likely to increase the odds of a guilty verdict is Trump’s own inability to regulate himself.”
David Priess is the chief operating officer of the Lawfare Institute and the author of How To Get Rid of a President: History’s Guide to Removing Unpopular, Unable, or Unfit Chief Executives.

This impeachment of the president matters, regardless of the outcome in the Senate, because the House’s impeachment is the sternest constitutional rebuke of a president short of his removal and disqualification from future office. At the Constitutional Convention in 1787, delegate Eldridge Gerry—who later served as vice president during James Madison’s presidency—put his view of impeachments this way: “A good magistrate will not fear them. A bad one ought to be kept in fear of them.”

We have lost some of that sense in modern times. Bill Clinton in 1999 successfully marketed his acquittal in the Senate as a victory over the impeachment process itself. But it remains the most serious manner through which a president’s unfitness for office can be formally identified and acknowledged for posterity. It is weightier than a censure, which barely registers in history and can be reversed—just as the Senate’s censure of President Andrew Jackson in 1834 was expunged from the official record in 1837.

While there seems little chance now that the current Senate will vote to remove President Donald Trump from office, there would be absolutely no chance of senators doing so without this impeachment vote. So the possibility remains—and it remains a potential outcome simply because of the wild card that is President Trump.

Johnson and Clinton stayed away from their impeachment trials, and largely avoided public engagement about day-to-day developments in the process. This president, by contrast, seems determined to go on the offensive daily against those who are calling out his own misbehavior. It’s helpful to recall that he engaged in the acts leading to this impeachment even as the misconduct as detailed in the Mueller report was still in the news. Perhaps nothing could happen during this impeachment story that would drive this Senate to convict. But the variable most likely to increase the odds of such a guilty verdict is Trump’s own inability to regulate himself.

“Without the glare of the inquiry, Trump might have continued to extort Zelensky.”
Corey Brettschneider teaches constitutional law and politics at Brown University. He is the author of The Oath and the Office: A Guide To the Constitution For Future Presidents.

Congress has a duty to impeach Donald Trump. This is a decision beyond the reach of partisan politics. A failure to act would both flout Congress’ constitutional duty and risk further emboldening a lawless president.

It was even more imperative that the House act to impeach Trump after the revelation of the Ukraine call because of Congress’ failure to respond adequately after the release of the Mueller report. Mueller outlined in Part II of his report 10 possible instances of obstruction of justice. Yes, the report concluded in Part I that there was insufficient evidence of a criminal offense, but the president took the report as an exoneration and, worse, a green light to commit abuses of power similar to those investigated by Mueller. The failure to launch an impeachment inquiry emboldened Trump, who declared that the Constitution “allows me to do whatever I want” and then committed his most recent impeachment-triggering offenses. Remember, he made the phone to call Ukrainian President Volodymyr Zelensky the day after Mueller testified to Congress and made it clear he would make no further allegations.

We can only guess what might have happened if Congress had not launched the current impeachment investigation. Indeed, without the glare of the inquiry, Trump might have continued to extort Zelensky. Given that there were risks on both sides, Congress had no choice but to act on its constitutional duty, making use of the power the framers gave it to stop a lawless president.

“If a charade is made of the impeachment trial process, it will indicate that the power of the presidency is above the law for generations to come.”
Kim Wehle is a CBS News legal analyst and a former assistant U.S. attorney and associate independent counsel for the Whitewater investigation. She is the author of How to Read the Constitution and Why.

Throughout this process, it’s been my belief that it’s important to pull the trigger on impeachment to keep that part of the Constitution vibrant and alive as a meaningful check on the office of the presidency, regardless of whether President Trump himself is ultimately removed. The Ukraine story is about Trump’s invitation of foreign influence in an election by withholding Senate-approved aid and a White House meeting—against the measured advice of career experts within the government—for Trump’s personal gain and against the interests of the United States. This is the kind of thing that the framers really cared about.

But my views have changed since Senate Majority Leader Mitch McConnell told Fox News on Friday that he will work with President Trump’s lawyers to ensure an acquittal. This suggests that, regardless of the quality of the evidence and clarity of advocacy presented by House managers at the Senate trial, Trump will stay in office. It’s like putting the star pitcher on the baseball mound when the other team has already paid off the umpire—it doesn’t matter how the game is played at that point. One side is pre-determined to win.

Under these circumstances, going forward with impeachment could be more damaging to the Constitution than no impeachment at all. If a charade is made of the impeachment trial process, it will embolden the power of the presidency, putting it above the law for generations to come.

There is a way to prevent this erosion of the seriousness of impeachment. As I wrote in The Atlantic a few weeks ago, Democrats need to invoke the federal courts to shore up Congress’ subpoena power. House Democrats did not do this during their own investigation, but those in the Senate can act now and bring forth witnesses to testify. Although the current rules for a Senate trial would require Republican Senators’ consent, all witnesses with personal knowledge—including Office of Management and Budget director Mick Mulvaney, Rudy Giuliani, former national security adviser John Bolton, former Energy Secretary Rick Perry, and Secretary of State Mike Pompeo—need to be subpoenaed to testify, and if they don’t comply, they should be sued to compel compliance. The same goes for documents requested by Congress and withheld by the White House. The American public should have access to all relevant texts, emails and other information relating to the OMB decision to withhold the $391 million in aid, for starters. To date, there is no legitimate public justification for Trump’s halting of that money other than as leverage to get Ukrainian President Volodymyr Zelensky to announce investigations of the Bidens. Americans deserve clarity and transparency on this. And federal courts will back up Democrats. Federal judges are students of the Constitution.

If litigation delays the Senate trial, so be it. The Constitution is worth the hassle.

“In impeaching Trump for his betrayal of American values, we reassert to each other our commitment to a resurgent democracy.”
Frank O. Bowman III is a constitutional law professor and the author of High Crimes & Misdemeanors: A History of Impeachment for the Age of Trump.

Donald Trump has been impeached by the House of Representatives. Sometime next month, the Senate will acquit him. All will proceed as long predicted by the cynics, or, if you prefer, the realists. Inevitably, some of those realists will adopt a tone of world-weary wisdom and deride the impeachment effort as pointless at best, and as a political blunder at worst.

The realists will be wrong.

I say this regardless of the fact that impeachment will not immediately remove Trump from office, and regardless of the suggestion (implausible though it seems to me) that impeachment may somehow aid him in his reelection. Whatever the short-term consequences, this impeachment is the right thing to do.

It is right, first, because the truth matters. The United States is an inheritor of the Enlightenment conviction that the world is comprehensible, reality is discoverable and social arrangements should be built on clear-eyed assessments of fact. American democracy depends on a special elaboration of the Enlightenment ideal, which insists that truth is not the private property of priesthoods or aristocracies, but is the public province of every citizen, the necessary predicate to informed communal choice.

Our president is a liar. He sits at the center of a web of falsehood, constantly spinning grotesque new entanglements, constantly abetted by his hired sycophants and, more consequentially, by a dark element of the media which finds in Trump the perfect champion of its own impulse to transform the press from arbiter of truth to purveyor of profitable propaganda. Trump’s dishonesty is so integral to his personality and to all his works that to support him requires that one become a liar oneself, or at least to become willfully indifferent to mendacity.

The House impeachment process was essential to the cause of recovering truth as a public value. Without it, Trump’s misconduct in relation to Ukraine would have remained a mere scandalous rumor, blithely denied by Trump and generally ignored by the public. More fundamentally, the hearings in the House Intelligence Committee recaptured, for a blessed moment at least, the world we are in danger of losing: a world in which it is natural for honest public servants to serve their country impartially and speak the truth when they witness a betrayal of its values. This impeachment calls us to renew our mutual obligation of public candor.

This impeachment is necessary, second, because the Constitution must be defended. The framers wrote into the constitution a president of limited powers, not a king. It is wrong for an American president to use the vast power given him as a public trust for his private selfish ends. Until the ascendance of Trump, no serious person of either party would have defended any particle of what Trump did in Ukraine. It was simply, and unequivocally, wrong. And considered in the round, it is the quintessence of the “violation of … public trust” for which the founders designed the impeachment remedy.

The Constitution gave Congress many tools with which to assert control over a misguided or demagogic president, but this Congress, or more particularly the Republicans in this Congress, refuse to wield them. In such a case, the only tool remaining to the one party not under his sway is impeachment. If, in the end, Republicans refuse to either to restrain Trump or to oust him, Democrats at least have the consolation that they sounded the alarm and gave their colleagues the chance to rise to the occasion.

Finally, the value of any public act cannot necessarily be measured in its immediate success of failure. By voting to impeach Donald Trump, Democrats express their faith in, to adapt a phrase from Charles DeGaulle, a certain idea of America. An America that is commonly truthful, unusually generous, customarily trustworthy, instinctively democratic, committed to human freedoms and individual rights, self-protective without being selfish, always imperfect but perennially challenging itself to do better. An America that, to borrow a favorite image from a man Republicans used to revere, at least aspired to be the world’s shining city on a hill.

It is not hyperbole to suggest that our republic is in peril. In impeaching Trump for his betrayal of American values, we reassert to each other our commitment to a resurgent democracy. And we speak not just to each other but to a watching world. We demonstrate that, although for the moment America is in the grip of madness, there remains a sturdy contingent of Americans willing to fight for the hopeful America upon which so many of the world's highest aspirations depend.

If Democrats had not taken a stand, “then nothing would stop this president, or future presidents, from behaving even worse.”
Leah Litman is an assistant professor of law at the University of Michigan.

If there had been no impeachment, then impeachment would cease to be a constitutional remedy. Donald Trump openly (and repeatedly) solicited or demanded foreign interference in our election to benefit him personally. He repeatedly attempted to obstruct the investigation into Russian interference in the election. He has unknown foreign business entanglements and commands his subordinates not to comply with any congressional oversight. If all of this, together with many other things, did not justify impeachment, then it's hard to know what would.

By impeaching the president for (some of) this conduct, the Democrats showed the willingness of one major political party, and a significant portion of the American public, to ensure that the president is not above the law, and that presidents do not abuse the office for their own personal gain. Impeachment was the way for the Democrats to take a stand. If they had not, then nothing would stop this president, or future presidents, from behaving even worse.

The impeachment investigation has made the charge of “collusion” stick.
Mary Frances Berry is the Geraldine R. Segal Professor of American Social Thought and Professor of History at the University of Pennsylvania. She is the author of 12 books, including Why ERA Failed: Politics, Women's Rights, and the Amending Process of the Constitution.

To my eyes, there is little chance of a conviction in a Senate trial, despite some speculation that such a surprise is waiting for Trump. Sure, members have bucked their parties to save a vulnerable president before. In 1868, for example, moderate Republicans saved the Democratic President Andrew Johnson from conviction because they didn’t want the radical anti-slavery advocate Sen. Benjamin Wade—then the next in line for presidential succession as president pro tempore—to replace him. This time, some have raised the possibility of some Republicans voting to convict Trump because they dislike his style and abandonment of traditional Republican positions on issues like free trade. Unless McConnell loses control of his caucus on procedural motions, which could possibly complicate the proceedings, this scenario seems like a stretch.

But the impeachment inquiry is important because it soothes Democratic disappointment over the 2016 election and offers hope of getting rid of Trump in 2020. Anti-Trumpers wanted some wound inflicted on him since Inauguration Day, but neither his policies nor his style dealt any kind of real blow to him. The Mueller report ended up failing, too. But the Ukraine call has been the most observable instance of the charge of collusion with a foreign power, a charge that has clouded the Trump presidency from the start. So the impeachment investigation, which explored these charges more thoroughly than the whistleblower report alone, has made some of these charges stick in a way that might not have been possible otherwise. The 2020 election might prove it.

“If this conduct had been ignored in the House, it would have represented the death knell for the democratic process in this country for the foreseeable future.”
Alan Baron is former special impeachment counsel to the U.S. House of Representatives.

It is a foregone conclusion that the impeachment of Donald Trump in the House will not result in a verdict of “guilty” in the Republican-controlled Senate. Accordingly, it is fair to ask whether the impeachment was worth the effort. My answer is emphatically: Yes!

Trump held up previously authorized and desperately needed military and financial assistance to a beleaguered ally confronting Russian aggression. He also withheld a White House visit, which was important to a fledgling administration in Ukraine. What Trump demanded in return was a public announcement that Ukraine was launching an investigation into Joe Biden, a potential rival for the presidency in 2020.

If this conduct had been ignored in the House, it would have represented the death knell for the democratic process in this country for the foreseeable future. Inviting a foreign power to play a role in our electoral process is so much worse than the Watergate burglary and coverup that drove Richard Nixon from office.

History needs to record that, at the very least, a majority of the House of Representatives condemned this outrageous and unpatriotic conduct.