Opinion

The Endgame for Impeachment

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Posted: Feb 03, 2018 12:01 AM
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The Endgame for Impeachment

The $64,000 question in American politics today is this: will President Trump be impeached and removed from office?  The short answer to this question is: very likely not.  Nonetheless, there are a variety of ways in which the impeachment drama could play out.  It could end with a whimper or a bang.  To a large degree, this is in special counsel Robert Mueller's hands.

Most importantly, there is the question of whether or not Mueller will recommend charges against the president and/or impeachment proceedings.  On one hand, there is ample evidence that Mueller is friendly with the fired FBI Director James Comey, and he has stacked his prosecutorial team with aggressive lawyers with strong connections to Democratic and liberal causes, who therefore presumably loathe Trump.  Moreover, Robert Mueller is himself a long-time resident of the D.C. “swamp” and a confirmed swamp monster himself.  He is thus likely to share the capital's near-unanimous disdain for Trump.

On the other hand, none of the charges Mueller's team have pursued so far are particularly relevant to the central accusation against President Trump and his campaign: that it colluded with Russia to undermine the integrity of the 2016 election.  Moreover, Mueller's team seems to have leaked prodigiously, and while it has emitted plenty of circumstantial blather aimed at discrediting Trump and his associates, there is little sign of any substantive evidence that would prove collusion, much less treason.  It is possible that Mueller possesses a “smoking gun,” but highly unlikely, given how much information has already been made public.

We would have to conclude that there is a reasonable chance that Mueller will swallow his pride, file his final report, and ultimately disappoint those in Washington who have been counting on him to lance the political boil that is Donald J. Trump, as they see it.  If this happens, then the Russia collusion narrative will end up where it belongs: in the dustbin of history.  Liberals and assorted Trump-haters will move on.  They will trumpet the president's alleged mental instability, his shady business dealings, and anything else that serves to undermine him.  In all likelihood, though, they will steel themselves for the probability that he will remain in office at least until 2021.

Equally possible, though, in my opinion, is that Mueller will proceed with a recommendation that the president be charged and/or impeached based on allegations of obstruction of justice.  Obstruction is, in many respects, an obscure crime that exists primarily in the eye of the beholder (think “prosecutorial discretion”).  For example, were Democrats and liberals, who criticized and sought to undermine special counsel Ken Starr, who was investigating Bill Clinton in the 1990s, guilty of obstructing justice?  Was President Nixon, who suggested on tape that the FBI could block the investigation of the Watergate break-in, but seems not to have carried out such a plan, guilty of obstruction of justice?  Was President Clinton, who perjured himself to conceal his sexual relationship with Monica Lewinsky, guilty of obstruction?  Ultimately, half the Senate thought he was – and half thought he wasn't.  

Obstruction of justice is therefore a crime that can be understood in any number of ways, and which can easily be bent this way or that to support the prosecution of anyone whom it is difficult to nail to the wall otherwise.  It is, in short, a perfect vehicle for the political prosecution of one's enemies.  Assuming that Robert Mueller detests Donald Trump and wishes to torpedo his presidency, he may well use a charge of obstruction to do so. That Trump has been transparently hostile to the Mueller team and its inquiry will make such a charge more likely, and it may also make it more credible.

So, if Mueller pursues a case of obstruction of justice against President Trump, what will happen? This depends on timing.

If Mueller recommends a charge of obstruction to the Republican-dominated House of Representatives before the 2018 mid-term elections, I believe it is highly likely that the House Judiciary committee will vote not to pursue it.  Democrats will howl that this represents a cover-up, but the political fact of the matter is that the Mueller inquiry and the FBI investigation into the Trump campaign have been thoroughly discredited in the eyes of Republican voters.  (A December 2017 CNN poll showed that those approving of President Trump's job performance disapproved of the job Mueller is doing by 53-27%.) Presumably, the fact that Trump fired James Comey will be Exhibit A in any obstruction case, but Comey too has been thoroughly discredited, and his firing could be seen as entirely justified.  Moreover, the fates of Trump-hating Republicans like Jeff Flake and Bob Corker underline for Republicans the risks they take in turning on President Trump.  Absent dramatic revelations that at this stage seem unlikely, the obstruction case will die in committee, and the matter will be closed – unless, that is, Democrats win the House in November 2018.

If Democrats win the House, and if Mueller waits to press his obstruction charges until that happens, or if his case is revived after it happens, then the political dynamics change significantly.  President Trump is such a polarizing figure that it is almost as difficult to imagine Democrats refusing to impeach Trump as it is Republicans assenting to it.  If Mueller gives his imprimatur to an obstruction case, few Democrats will feel comfortable standing with Trump.  The President will therefore be impeached, narrowly and on partisan lines.  This will push the matter to the Senate, which will be responsible for trying the President.  Here a two-thirds majority is required for conviction, and, unless President Trump's approval ratings deteriorate a great deal, Republican Senators will not vote to convict.  

The result of the Democrats' impeachment gambit will therefore be the same as the impeachment effort mounted against Bill Clinton in 1998-99: it will fail.  And, just as Clinton argued that the prosecution against him was politically-motivated, petty, and hypocritical, President Trump and his supporters will say the same.  Much of the country will agree.  By no means, therefore, can Democrats assume that an impeachment trial will do any more damage to Trump's political standing than has already been done by other means.  A trial may even give Trump the opportunity for a political comeback.

What we can conclude, I think, is this: the drive to impeach President Trump, while it has the potential to do considerable damage to the legitimacy of American democracy and constitutional government, by undermining the bipartisan consensus around the rule of law that undergirds them, has little prospect of booting Trump out of office.  The incendiary, even apocalyptic, rhetoric increasingly used by both sides ensures that achieving agreement on a politically-charged question like impeachment is more difficult than ever, verging on impossible.  Unfortunately, the bitter hatreds with which our modern political life seethes also make impeachment and other efforts at delegitimization increasingly attractive, and they may become distressingly commonplace.

Thus, I predict that, whatever happens with President Trump, impeachment as a political strategy is here to stay.  Constitutionally speaking, impeachment may be the ultimate “nuclear option,” but in an fraying democracy like ours it is destined to be a popular one.

Perhaps, then, it won't be President Trump who will be removed from office.  Maybe it will be President Biden, or President Sanders, or President Winfrey.  In that case, ex-President Trump, crowned in glory and enjoying a blissful retirement at Mar-a-Lago, will have the last laugh.

Dr. Nicholas L. Waddy is an Associate Professor of History at SUNY Alfred and blogs at: www.waddyisright.com.