How to Remove a Lawless President Through the Use of Institutional Power

By Nick Knudsen and Matt Scharfstein

Calling for impeachment hearings now is certainly warranted by the evidence, but is not politically strategic, and that is why Democratic leaders are not doing it – yet.

Donald Trump’s declaration of a national emergency on our border has prompted fresh calls for his removal from office. Rightfully so: the American people and their representatives in Congress do not support a border wall, so spending $6 billion in taxpayer funds on a project that nobody wants and that is rooted in xenophobia and politics instead of factual analysis is an abuse of power. Abuse of power is an impeachable offense.

Indeed, polls show that calls for impeachment now resonate with the part of the Democratic base that pays a great deal of attention to the day-to-day horrific news and policy coming out Trump’s White House. However, the same polling shows that those less involved tend to see impeachment as purely political and an attempt to overturn a valid election. Democratic leaders have made a judgment call that an early attempt at impeachment would actually play in Trump’s favor, and hand Trump and the Republican Party a victory we can’t afford. The better strategy – the strategy Speaker Pelosi appears to be endorsing by holding off on impeachment, is to move broader public opinion before beginning the process.

Impeachment Primer: “Impeachment” and “Removal from Office” are not synonymous. Impeachment is the purview of the House of Representatives, and is the political equivalent of an indictment. If the House voted to impeach (which requires only a simple majority) citing specific counts of high crimes perpetrated by the President, the next step would be for the Senate to conduct a trial presided over by the Chief Justice of the Supreme Court (in this case, John Roberts). The Senate would have to vote to convict with a two-thirds majority (67 Senators – presumably all Democrats and Independents plus 20 Republicans) to remove Donald Trump from office.

The resounding 2018 election victory ensured a divided Congress, which gives serious institutional power to Democrats. That power can and will be used to provide a true check on a Trump administration which, through intimidation, flouting of norms and partisan politics, has almost entirely cowed elected Congressional Republicans.

The Democratic House will reverse much of that trend and has a solid chance of impeaching Trump. The fact that the road to conviction and removal runs through the GOP Senate is not, however, inspiring. The Congressional GOP has given no signal that they can be trusted to do the right thing. The timing of impeachment is crucial. We are only likely to have one shot at getting a conviction and removal from office – and we can’t waste it.

Disgraced ex-president Richard Nixon leaves the White House after resigning on August 9th, 1974.

It is important to remember that impeachment is not a legal process – where evidence is weighed and evaluated by a jury of unbiased peers. In reality, impeachment is a political process – one that has no legal bearing – where removal from office is ultimately decided by a jury of Senators who have intensely political conflicts of interest. Today’s Republican-controlled Senate has defied all norms of governance and honor by, for example, denying Barack Obama his Supreme Court pick, while failing to hold Donald Trump accountable despite his overtly un-American, racist and authoritarian actions. These Senators will require maximum public pressure to do the right thing and vote to convict. So how do we get there?

The Case For Immediate Impeachment

America is burning. Corruption is flourishing, Constitutional liberties are being eroded, foreign interference in our politics is rampant, very little is being done about election security, marginalized communities are being demonized and discriminated against and widespread propaganda and disinformation exists in the information space most Americans rely on for news.

Proponents of immediate impeachment argue that, while the Senate clearly won’t convict, it’s important to force hearings in the House to educate the American public and change our perception of accountability.

Those who hold this opinion are correct that there is currently no chance the Senate will convict and remove President Trump, and they’re right that hearings DO change expectations of accountability and put information about Trump’s misdeeds into the public domain. But what is missing is the realization that such hearings don’t need to come in the form of a formal impeachment process.

Why Should We Support Speaker Pelosi’s Strategic Decision About the Timing of Impeachment?

Speaker Nancy Pelosi is the most powerful woman in the history of the United States, standing 2nd in the Presidential line of succession. Her political prowess and strategic abilities have – less than two months into a Democratic Congress – been impressive on a scale most Americans don’t fully appreciate.

Democrats’ handling of Trump’s government shutdown is a prime example of how Democrats hold real power and are wielding it successfully. During the 5-week shutdown, Pelosi and the Democratic caucus didn’t give an inch to Republican extortion attempts and were politically successful in assigning blame for the horrific pain inflicted where it belongs – with Donald Trump and Senate Republicans. Trump’s approval ratings plummeted during the shutdown and Speaker Pelosi used the institutional power of her position to force Trump to cancel the State of the Union Address unless the shutdown ended. All of this occurred while Trump blustered and attacked in a way that has intimidated elected Republicans from performing their Constitutional role of being a check on the executive.

While the shutdown hurt Trump among many Americans, his approval rating still hovers in the high 30s. The shutdown showed how Democrats can wield real power to diminish Trump, but it didn’t create the conditions by which Trump’s misdeeds would more broadly enter our information space or ensure accountability. Critics of strategic delay argue that only impeachment hearings can bring light to the American people.

However, the same result can be accomplished via other means. Two major gamechangers that will move public opinion to the point where conviction is much more likely:

  • Special Counsel Robert Mueller’s findings may soon be released.
  • Committees led by Democratic chairs are starting to seriously and publicly investigate – Democrats now have subpoena power.

Democratic House committees are expected to investigate and hold public hearings on Trump administration corruption, the flouting of norms and rules, emoluments violations, Trump’s tax returns, the cruel child separation policy, and lies routinely told by Trump and his administration officials. House committees are also expected to do real investigative work into Trump’s finances, including his personal and business ties to Russia. During the previous Congress, Republicans had prevented real Congressional investigations, accepted superficial testimony from Trump campaign officials and refused to subpoena relevant records that might illustrate perjury. Key examples of this include Republicans’ refusal to demand records from Donald Trump, Jr. that could potentially show President’s Trump’s involvement in the infamous Trump Tower Meeting, as well as their refusal to hold Roger Stone accountable for perjury to the House Intelligence Committee.

Another area where the institutional power of the Democratic House will be apparent is in holding the Acting Attorney General, Matthew Whitaker, a Trump crony with no relevant experience, accountable for passing information about the Mueller probe to Trump. It is widely suspected that Whitaker has been relaying information since he took over from former-AG Jeff Sessions, and that he has been passing this information on so as to give Trump’s legal team a heads up to better craft a defense strategy. Whitaker appeared before Representative Jerrold Nadler’s House Judiciary Committee on February 8th, and it is widely expected he will be subpoenaed to answer the questions he evaded at the hearing.

Acting Attorney General Matthew Whitaker testifies to the House Judiciary Committee on February 8th, 2019.

All of this House activity – and the findings of the Mueller report when it is released – will be covered by ABC, CBS, NBC News & morning shows that are watched by far more people than cable news. A new narrative will take hold among a broad American audience and Trump’s approval numbers will fall further. Ultimately, these hearings will lay the groundwork necessary to begin a successful impeachment process that can plausibly lead to conviction in the Republican Senate. The daily exposing of corruption, lies, cruelty, and foreign ties will replace the deep-state conspiracy theories that Republicans pushed when they controlled the House. Those who had only been paying peripheral attention to politics will see the truth.

The Danger in Premature Impeachment.

Premature impeachment can backfire. A Republican House impeached Bill Clinton and the Senate voted to acquit. Clinton’s poll numbers rose during the impeachment trial. For two years, Republicans have largely driven the narrative, with significant success, that the issues raised about the Trump presidency are a partisan ploy to damage him or even overturn the results of what they assume was a valid election.

In the 2018 midterm elections, Democrats needed to flip many “red” districts to gain a majority. Those Democrats who won in those districts were careful to run on pocketbook issues, such as health care and a living wage, and to stay away from impeachment calls. Many very explicitly told their future constituents that they would wait to see the results of the Mueller report and true Congressional investigations before they would vote to impeach: polling showed that demanding immediate impeachment would be viewed as a partisan attack on Trump.

Right-wing media actively promotes this view, driven by Trump’s constant “witch hunt” rhetoric. Even more mainstream media frequently falls into normalizing Trump’s outrages and portraying criticism as partisan. One result has been that many tepid Trump supporters have tuned out criticism or even increased their sympathy for Trump as the “victim” of what he portrays as a partisan press. While there are a significant number of “deplorables” who will support a corrupt, cruel, racist autocrat no matter what, a huge number of the Americans identifying as independents and Republicans feel Trump is the subject of unfair partisan attacks. They believe this because they are paying very little attention, but pick up the narrative or “vibe” from network news or network talk shows that are watched by a vastly larger audience than cable.

Impeaching the President before bringing more hard evidence of corruption and abuse of power into the public eye will be experienced by these largely disconnected Americans as affirming Trump’s position on the ‘witch hunt,’ leaving them more skeptical of the process as it unfolds.

Democrats using institutional power to investigate Trump will lay the groundwork for successful impeachment and removal.

With Democratic House hearings, however, the “vibe” will change and the reactions of those “lightly informed” Americans will also begin to change, leading to further erosion of Trump’s approval and far less sympathy for Trump as the “victim” he portrays himself to be. More of America will see how Republicans have been craven and unpatriotic in confronting Trump’s corruption – and elected Republicans will increasingly realize they need to separate themselves from Trump to have any hope of re-election. At that point, conviction and removal in the Senate becomes feasible. As we approach that point, Democratic leadership is likely to begin impeachment hearings in the House – which will also get extensive mainstream coverage and further drive the narrative.

Democrats have shown that they can be united, even with a very big tent and Democratic leadership has shown it can be highly effective in wielding institutional power. They are also in the best position to see the impact of Trump’s exposure and falling ratings on Senate Republicans, who will need to support conviction to make impeachment worthwhile.

This is why we should delay impeachment – until the Democrats have had a chance to further bring to light Trump’s illegal unethical behavior and have worked to sway public opinion. In the meantime, strong and determined Democrats will use their public position and power that is inherent in controlling House Committees to shed light on Trump’s corruption, cruelty and treason.

Impeachment hearings should be held after Democrats have had the chance to use the power that we put them in office to wield – the power of sunlight and formal, aggressive investigations.