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Trump’s Impeachment Trial Is Already Underway

The debate is no longer about whether his removal is warranted. It's about the political and practical calculations.

Chris Kleponis/Pool

Rashida Tlaib, a newly elected Democratic representative from Michigan, began her tenure in Congress by saying what most members of her party are merely thinking. “When your son looks at you and says, ‘Mamma, look, you won—bullies don’t win,’” she said at a MoveOn event in Washington shortly after her swearing-in ceremony. “And I said, ‘Baby, they don’t, because we’re gonna go in there and we’re gonna impeach the motherfucker!’”

The Oedipal jab at President Donald Trump prompted a wave of hand-wringing in Washington. Some observers expressed concern that the Democratic Party was following in Trump’s footsteps by abandoning civility in the public sphere. “Rep. Tlaib took the politics of Washington deeper down the drain,” Utah Senator Mitt Romney wrote on Twitter. “Elected leaders should elevate, not degrade, our public discourse.” Democrats fumed to reporters, for the most part anonymously, that the insult upset their party’s talking points on potential impeachment charges. “I don’t really like that kind of language,” Representative Jerrold Nadler, the Democratic chairman of the House Judiciary Committee, said on CNN.

While debates about civility in American politics are often performative, this one was revealing. Most of the criticism of Tlaib centered on her use of the word “motherfucker” rather than her substantive point, leaving Trump to be his own loudest defender against the idea of removing him from office. “How do you impeach a president who has won perhaps the greatest election of all time, done nothing wrong (no Collusion with Russia, it was the Dems that Colluded), had the most successful first two years of any president, and is the most popular Republican in party history 93%?” he wrote on Twitter last week.

Presidents typically don’t need to insist that they shouldn’t be impeached. That Trump feels compelled to do so signals that the impeachment process is effectively underway. The debate has moved beyond threshold questions, like whether impeachment is warranted, and the discussion now centers on practical and political considerations. The effort is unlikely to succeed, as things stand now. But even if nothing comes of these shadow impeachment proceedings, they still may serve a purpose: deterring Trump from further abuses of power.

Thanks to the results of last year’s midterm elections, there are almost certainly enough votes in the House to impeach Trump—and almost certainly not enough votes in the Republican-controlled Senate to convict him. Even if the entire Democratic caucus voted to convict Trump, twenty Republican senators would need to join them to oust him from office. That’s an extraordinarily high barrier for Trump’s opponents to overcome in a hyper-partisan climate. Support for impeachment may also wane overall as 2020 draws closer; lawmakers and the public may be uncomfortable with removing a president from office so close to an election, which could accomplish the same result but with greater political legitimacy.

In some ways, this is a familiar debate. Impeachment threats became a staple of American presidencies after the House impeached Bill Clinton in 1998. (He was subsequently acquitted by the Senate the following year.) Some Democrats in Congress, mostly on the party’s left wing, filed articles of impeachment against George W. Bush related to the Iraq War, administration scandals, and other topics. A smaller number of Republicans proposed impeaching Barack Obama during his presidency. None of these efforts attracted mainstream support, however, and party leaders ultimately squelched them in the House before they went far.

This time is different. Trump is openly hostile to any constraints on his power. He castigates federal judges who rule against him so frequently and so vehemently that Chief Justice John Roberts publicly came to their defense last year. While Congress refuses to fund his border wall, he has threatened to declare a national emergency to secure the funds without congressional approval. Trump is also averse to basic democratic principles. When polls showed him trailing ahead of the 2016 presidential election, he spread false allegations that the election was rigged against him. During last year’s midterms, he deployed the military within U.S. borders as a partisan campaign stunt.

Elections are typically the best means for removing presidents for bad policies or general incompetence. Impeachment is supposed to be reserved for serious abuses of power, or when the office-holder threatens the integrity of American democracy. There’s a strong case to be made for impeaching Trump on those grounds. The New York Times’ David Leonhardt laid out four specific reasons last week: for using the presidency to enrich himself and his businesses, for violating campaign-finance laws during the 2016 election, by obstructing justice during the Russia investigation, and by subverting the nation’s democratic structures throughout his presidency.

A serious challenge for any impeachment effort is the lack of precedent for it. There have been two presidential impeachment trials over the last 230 years, and neither ended in his removal from office. (Richard Nixon resigned before the House could impeach him after learning his conviction would be virtually certain in the Senate.) So while there are plenty of ways to show how impeachment can fail, there is none showing it can succeed. The Constitution itself offers little guidance: Presidents can be impeached for “high crimes and misdemeanors,” which can mean whatever the House and Senate want it to mean.

There are questions about timing, too. Should Democrats wait for special counsel Robert Mueller to wrap up his investigation into the 2016 election? His findings could significantly bolster the case for impeaching Trump if they’re made public. But the special counsel has given no indication about his progress or timetable. Similar investigations during previous administrations dragged on for years before wrapping up. By waiting for Mueller, Democrats could ultimately miss their best shot. But until Mueller concludes his independent inquiry, Republican senators may have an easier time dismissing impeachment as a partisan stunt.

And what about public opinion? Americans decisively moved last November to elect a House of Representatives that would serve as a check on the president. But only 43 percent of Americans told CNN pollsters last month that they support Trump’s impeachment and removal from office, while 50 percent opposed it. Then again, the public also isn’t as steadfastly opposed to the idea as it was in 1998. Bill Clinton’s approval ratings actually went up as the proceedings went on, and peaked as the House impeached him. I noted last year that the Republicans’ quest to remove Clinton serves as a warning of sorts for Democrats who hope to mount a similar effort against Trump. Unambiguous public support for impeachment may not be enough to oust Trump, but it’s hard to see a successful effort without it.

Barring some major developments, it’s hard to envision a scenario where Trump is removed from power by Congress. That doesn’t mean he’s free from accountability, of course. Lawmakers can still use their oversight powers to investigate the administration and uncover wrongdoing. I noted last month that the greater risk at the moment for Trump is that he’ll be indicted after leaving office, perhaps on campaign-finance charges related to the hush-money payments he made in 2016. He’ll also face the ultimate reckoning from voters in 2020.

None of this means that the ongoing impeachment debate isn’t worth having. According to a New York Times report in November, Trump tried to order the Justice Department to prosecute former presidential rival Hillary Clinton and former FBI Director James Comey last spring. Targeting political opponents for criminal prosecution on dubious grounds at best is a clear abuse of power and a hallmark of authoritarian rule. The Times reported that he backed down after Don McGahn, the White House counsel at the time, warned that it could lead to his impeachment. Sometimes a weapon is more effective when it isn’t used.