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What constitutes an impeachable offense? History as a guide

President Donald Trump listens during a news conference

President Donald Trump listens during a news conference on Tuesday in London. Credit: AP / Alex Brandon

WASHINGTON — With a starring appearance by Watergate figure John Dean in a hearing on the Mueller report Monday, House Democrats launched a new campaign to build support for investigating and possibly impeaching President Donald Trump.

The key to that effort will be to find evidence for the most compelling charges against Trump, as House Speaker Nancy Pelosi indicated when she said last week: “It's an indictment, so you want to have the best possible indictment.”

By harking back to the Watergate scandal, Democrats highlighted the one presidential impeachment proceeding that succeeded in its goal: removing a president from office. President Richard Nixon resigned in 1974 rather than face a likely conviction. 

The other two presidents impeached by the House — Andrew Johnson in 1868 and Bill Clinton in 1998 — avoided removal from office when the Senate acquitted them by failing to draw the two-thirds vote needed to convict.

As impeachment talk heats up, lawmakers turn to the precedents created by the charges against that trio of presidents and the definition of the Constitution’s grounds for impeachment: “Treason, Bribery and other high crimes and Misdemeanors.”

Most lawmakers and scholars broadly interpret the Constitution’s grounds for impeachment to include both criminal and noncriminal behavior.

“Impeachable offenses encompass serious abuses of power, breaches of trust, and serious injuries to the Republic,” according to Michael Gerhardt, who teaches constitutional law at the University of North Carolina, in his summary of Congress’ view of impeachment.

Gerhardt said Congress also has shown it believes “that not all crimes are impeachable offenses” and “that not all impeachable offenses are crimes.” He added those offenses must include two elements of misconduct — “bad intent or bad faith,” and “bad acts.”

In each impeachment attempt, the House bridled at the president’s defiance and contempt of Congress.

The House accused Nixon and Clinton of obstruction of justice for impeding the investigations into them, and for refusing to comply with congressional subpoenas and investigations.

The House also charged Clinton with perjury for lying about his sexual encounters with Paula Jones and Monica Lewinsky to a grand jury and in a deposition.

And the House accused Johnson and Nixon of abuse of power — Johnson for refusing to abide by a law it had passed and Nixon for ordering the IRS and FBI to harass his political enemies and creating his own investigative unit within the White House.

For Democrats, special counsel Robert Mueller’s detailed cases of possible Trump obstruction of the Russia investigation create a cornerstone to their case against the president — though Republicans point out that Mueller filed no charges and the attorney general cleared Trump.

Rep. Jamie Raskin (D-Md.), a leading advocate for opening an impeachment inquiry — a first step to investigate possible wrongdoing — said the Mueller report is just a starting point.

“The Nixon articles provide a very good road map,” said Raskin, a House Judiciary Committee member and a former constitutional law professor, in a phone interview.

“Trump's activities mirror President Nixon’s, but then go way beyond,” he said. “Certainly, we can see the same kind of obstruction of justice, we certainly see the same kind of contempt of Congress, and we certainly see the same kinds of abuses of power.”

Raskin said Johnson’s impeachment also is a precedent because he “was so dead-set on undoing the will of Congress” by blocking Reconstruction instead of “faithfully executing the law,” just like Trump is trying to “sabotage” the Affordable Care Act, voting rights and asylum law.

Raskin cited unprecedented acts of self-enrichment by Trump by maintaining his businesses (violating the emoluments clause), violating international treaties with his family separation policies at the border and even collusion with Russians, despite Mueller’s finding of no criminal conspiracy.

“We are not bound by what has NOT been recognized thus far in American history as an impeachable offense. Context means a great deal in this area of the law,” Gerhardt said in an email. “When the context shifts, new possibilities arise.”

Allegations that Trump violates the emoluments clause and restrictions on the president's making money besides his salary while president is an example, Gerhardt said. “No president before Trump had such extensive personal business interests as he does,” he said.

But precedents still matter.

Gerhardt said the House impeached Johnson for refusing to follow the Tenure in Office Act, but the Senate acquitted him in part because enough senators believed that Johnson had a “good faith” disagreement about the law’s constitutionality.

“With Trump, we have to consider whether he truly or genuinely believes any part of the ACA is unconstitutional,” he said.

Ultimately, said Gerhardt, author of “Impeachment: What Everyone Needs To Know,” what qualifies as impeachable offenses must be determined “on a case-by-case basis.”

Several Democrats claim many of Trump’s actions are impeachable. Billionaire hedge fund manager Tom Steyer lists 10 charges as he mounts a TV ad campaign to impeach Trump.

But Trump’s supporters insist that Trump has done nothing impeachable and accuse Democrats of a partisan attack.

“They do not care about facts,” House Minority Leader Kevin McCarthy (R-Calif.) said on Tuesday. “There is no reason for impeachment.”

Harvard professor Cass Sunstein, in his book, “Impeachment: A Citizens Guide,” said that all three presidential impeachments shared one significant characteristic.

“In each case, it was an overwhelmingly partisan affair. It was sought and engineered by people who were determined to bring down a president they despised,” he said.

Only in the case of Nixon did that partisan line dissolve.

After release of the “smoking gun” tape of Nixon and his top aides talking about blocking an investigation of the Watergate break-in by having the CIA tell the FBI it was a national security matter, Nixon lost the support of a critical mass of lawmakers from his own party, who said they would vote for at least one article of impeachment — obstruction of justice.

The question remains, as Pelosi has repeatedly suggested, whether Democrats will be able to find evidence that will persuade the public and Republicans that the case against Trump rises to the level of impeachable offenses.

Impeachment 101

U.S. Constitution

Article II, Section 4

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Articles of Impeachment against President Andrew Johnson, 1868

Article 1, 2, 3 and 8: Violating the Tenure of Office act and the Constitution by ordering the Secretary of War removed and appointing a replacement without the advice and consent of the Senate.

Articles 4 through 7: Committing a “high crime in office” by conspiring with the replacement to remove Secretary of War, depriving him of his rightful position.

Article 8: Conspiring to deprive the Secretary of War of his rightful possessions.

Article 9: Bypassing the Secretary of War to issue orders to military operations through the general of the army.

Article 10: Making speeches “with a loud voice, certain intemperate, inflammatory, and scandalous harangues” with the intent to disgrace Congress.

Articles of Impeachment against President Richard Nixon, 1974

Article I: Obstruction of justice — This act arose from the Watergate cover-up, with nine specific acts of obstruction or impeding investigators of his re-election committee’s break-in to the Democratic National Committee at the Watergate complex.

Those acts included lying or misleading; withholding evidence; urging and offering inducements to witnesses and defendants to lie; paying hush money; interfering with the Justice Department, FBI and the special prosecutor; misusing the CIA, and falsely claiming a probe found no wrongdoing.

Article II: Abuse of power — The act emerged from allegations that Nixon misused several federal agencies, including the IRS to illegally access tax filings and the FBI to conduct illegal surveillance against his political enemies, and then to conceal it; having his own secret investigative group, and to interfere with investigations into him.

Article III: Defiance of congressional subpoenas — This act grew out of his refusal to honor congressional subpoenas for documents and the secret tapes he made of private conversations in the White House.

Articles of Impeachment against President Bill Clinton, 1998

Article I The president provided perjurious, false and misleading testimony to the grand jury regarding the Paula Jones case and his relationship with Monica Lewinsky.

Article III The president obstructed justice in an effort to delay, impede, cover up and conceal the existence of evidence related to the Jones case.

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