The Case for Impeachment at 100 Days
This article was originally published at WhoWhatWhy.org.
Is it just the fancy of a frustrated opposition, or can the impeachment of Donald Trump become a political reality? American University professor Allan Lichtman tells Jeff Schechtman that it’s not a question of if, but when this president is impeached. He goes on to detail a number of areas where he sees a potential for Congress to act.
These include Trump’s ties to Russia, his practice of disregarding the law when it gets in his way, and his history of lying. Trump’s treatment of women may also pose a problem for his presidency, along with his abuse of executive authority and endless conflicts of interest arising from his worldwide business ventures.
While some might argue that these issues were all rendered moot by the election, Lichtman reminds us that the framers created impeachment precisely so that any mistakes of the electorate could be rectified.
And then there are the psychological issues, which could trigger the 25th Amendment’s provision for replacing the president when he is deemed “unable to discharge the powers and duties of his office.”
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Jeff Schechtman: Welcome to Radio WhoWhatWhy. I’m Jeff Schechtman. We’re just 100 days into the Trump presidency and already every day brings concern about the state of government and of the nation. Self-dealing, violation of ethics laws, serial lying to the American people, the endless web of Russian connections and whether or not treason was committed, the leaking of classified information, irrationality, a war on the intelligence community, and foreign adventurism are just the tip of the iceberg. Add to this the lack of coherent policy, lack of basic competence and ignorance about the issues driving our future, and you have an accurate picture of the current administration.
But is any of this cause for impeachment? More important, is all the loose talk about impeachment just an easy way for Democrats and those opposing the Trump administration to avoid the very hard work of policy, of crafting arguments to oppose his policies, building coalitions, recruiting candidates, raising money, walking precincts, and winning elections?
We’re going to talk about this today with my guest, Allan J. Lichtman. Allan Lichtman is Distinguished Professor of History at American University. He was formerly the Associate Dean of the College of Arts and Sciences and Chair of the Department of History at American University. He’s the author or co-author of eight previous books, and it is my pleasure to welcome Allan Lichtman here to talk about his newest book, The Case for Impeachment. Allan, thanks so much for joining us.
Allan Lichtman: My great pleasure.
Jeff Schechtman: Is it too early to be talking about things like impeachment 100 days into this administration?
Allan Lichtman: Normally it would be, but time is so telescoped under Donald Trump that it’s not premature. He’s been president for 100 days and it seems like he has been president for 100 weeks already. Already there are three Congressional … Excuse me, two Congressional and one FBI investigation well underway on possible collusion between the Trump team and the Russians and their reprehensible attack on our democracy, and even, heaven forbid, some possible collusion between the Russians and Trump himself.
Already Trump has broken precedent and not divested himself from his business interests. Sure, his kids are running it, and by the way they had largely run the day-to-day anyway before this, but he still profits from everything that goes on in his businesses. He did not divest like other presidents have. Sure, he would have taken a financial hit, but he still would have been a billionaire and nobody told him he had to run for president. There are so many potentials for conflicts of interest between the national interest and Trump’s personal economic interest that you’ve got to be talking about possible violations of the Constitution and the law.
Of course Trump brings with him unprecedented baggage. We’ve never had a president before who has bragged about sexually assaulting women, who’ve had some one dozen women accuse him of sexual assault, harassment and voyeurism. We’ve never had a president before with a history of flouting the law going all the way back to what’s truly documented as a violation of the Fair Housing Act, discrimination against minorities, to breaking the Cuban embargo, to serious allegations of employing illegal immigrants.
We’ve never had a president before with such a history of lying. He lied in his business. He lied in the campaign. He’s continued to lie as president, and he perpetrated the biggest lie in the history of American politics that Barack Obama was not a legitimate president because he was born outside of the United States. That’s just some of what’s in my book, The Case for Impeachment.
Jeff Schechtman: And yet to their own argument about this, so much of this was litigated during the course of the campaign, and whether we all like it or not he won.
Allan Lichtman: That’s right. That’s certainly a legitimate argument to be made, but impeachment was put into place for a reason by the framers. They understood the verdict of elections. They understood the legitimacy of the elections, but they also understood that a rogue president who smashes through the restraints of law and the separation of powers needs to be checked, and the ultimate check is impeachment, and a lot of these things were not fully litigated during the campaign.
Investigations on the connection with Russia are still ongoing. We didn’t have this kind of information during the campaign. We didn’t know during the campaign how he might deal with his conflicts of interest. We didn’t know whether he would divest or not. We didn’t know during the campaign that he would put out his first travel ban so quickly, so irresponsibly, that he would trample on 50 years of respect for immigrants and not discriminating on the basis of nationality. We didn’t know that he would claim absolute presidential power like he did in the courts and demean and challenge the courts. There’s a lot we didn’t know that has since come out since the election and since the inauguration of Donald Trump.
I wrote this book as a guide, not as a rant against Donald Trump. It’s not political. I don’t quote a single Democrat. I don’t base this on his critics. I don’t say he should be impeached because he’s unconventional, because you don’t like his style or you don’t like his policies, but I do think we need to think very seriously about whether or not our Constitutional order, our liberties, our freedoms, and now with these international crises maybe even our national security are threatened by this president. It’s something for everyone to think about and contemplate, because ultimately impeachment lies in the hands of the American people and will only occur if the American people demand it.
Jeff Schechtman: Is this the best use of individual energy with respect to opposition to this president? When we look at the reality of 18 months from now, when we have mid-term elections again, is that in fact the better use of time and energy and resources for the American people that oppose this administration?
Allan Lichtman: I don’t think they’re mutually exclusive at all. I think the grounds for impeachment of Trump are very relevant to the mid-term elections and which party ought to be given power in the country, so I don’t see the two as a choice of one or the other. But I agree with you. Energy always needs to be directed towards a goal. Otherwise, all of these demonstrations and protests, they’re like smoke going through a chimney. They’re going to dissipate.
I do think you can’t ignore the threats to our society from possible transgressions that lead to impeachment, and certainly as well organizing needs to lead to electoral success. As we’ve seen in Georgia, a lot of that had to do with people’s energy being directed to the election of a Democrat, and in part of course to send a message to Donald Trump by the way. It’s not independent of the critique of Trump.
Jeff Schechtman: Putting it in a political perspective, certainly the argument can be made that as long as there is a Republican Senate and a Republican Congress, impeachment and any effort towards impeachment is only going to be able to go so far and it has the potential unintended consequence of creating blowback that actually could hurt the Democrats in mid-term elections 18 months from now.
Allan Lichtman: Well that’s possible, and I didn’t write this book on behalf of the Democrats or to figure out what political strategy is best for Democrats. I wrote this book in defense of our democracy and to guide people when our democracy would become so threatened that impeachment does become a remedy. But it seems to me that there is a possibility, even a strong possibility if the transgressions are great enough of course, even for a Republican-controlled Congress to impeach Donald Trump.
First of all, it doesn’t take all the Republicans. Assuming the Democrats want to impeach him, it only takes some two dozen Republicans. That’s just 10% of Republicans to defect, and you may get defection if Republicans come to believe that Donald Trump is a liability to their re-election, and the results of the runoff in Georgia which are being held this June will be a big sign of that.
Then they also defect if they think he’s a liability in enacting their agenda, and so far he’s not been very successful. And the Republicans love Mike Pence. He’s not a loose cannon like Donald Trump. He has relationships with Republicans in Congress, unlike Donald Trump, and if they get Mike Pence as president he gets to pick his vice-president, and you could have the dream team of Mike Pence and Paul Ryan as a result of the impeachment of Donald Trump, so the politics do get very, very complicated here.
Jeff Schechtman: Talk a little bit about the degree to which you think that something has to cross the line, that something has to change even within the current framework in order to create the kind of critical mass necessary to seriously talk about impeachment.
Allan Lichtman: I completely agree with that. I think, as I said, the most likely is that the investigations into Russian collusion really turn up something serious and Trump could be guilty of misprision of treason, that is failure to report treasonous acts if he knows that his subordinates were colluding with Russia, or he could be charged with treason himself if he was involved in any of that kind of collusion. If this really turns out to be the case, and I have no idea whether it is or not, then I think you will have created a critical mass for impeachment.
So far the response of the Trump team, I have to say, looks a lot like a Nixonian cover-up. First these guys like Jeff Sessions and Jared Kushner and Carter Page said “Oh, we didn’t have any contact with the Russians.” Then of course it turns out that they did have contacts with the Russians, then they deflect, then they deceive, and then ultimately if they have to make a statement they say, “Oh, it was all innocuous anyway.” Then why conceal it? It sounds a lot like what the Nixon administration said about Watergate, that it was just a third-rate burglary.
Then the other thing that I think … Well, there are several other things that could cross the line into impeachment. Obviously if it turns out that the conflicts of interest, which I think are just immense, are serious enough to really undermine the national interest, that certainly could lead to impeachment. I just saw something extraordinary in the news about Rex Tillerson’s former company Exxon, seeking a waiver from the sanctions against Russia to do operations on oil and gas in Russia.
By the way, there’s a trap door for impeachment for Donald Trump, and that is there’s a lawsuit going on filed by the very well-known feminist lawyer Gloria Allred on behalf of one of Donald Trump’s accusers charging him with defamation for attacking her. If that goes to trial, and it may well because the courts decide on a case-by-case basis, he could be caught in the Clinton impeachment trap of lying under oath in a deposition.
Perhaps my edgiest, most far out, but I think in some ways most serious ground is a crime against humanity. Now I know we think of crimes against humanity as genocide, but recently the International Criminal Court has prioritized crimes against the environment, which would certainly include climate change, and in 2009 a group of businessmen signed a letter to President Obama saying the science is irrefutable that unless we take strong action on climate change the consequences will be catastrophic for the planet. I’m paraphrasing.
Jeff Schechtman: Uh-huh (affirmative).
Allan Lichtman: Guess who signed that? Donald Trump, Eric Trump, Donald Jr., and Ivanka Trump. What’s changed in eight years? Only Trump’s political calculations, because the science is stronger and the dangers are worse, and he’s not only stopped progress on fighting climate change, he’s thrown it into reverse so far with his policies. We’re not signatories to the Rome Accords that established the ICC, but anyone in the world could make a complaint because climate change is universal. Imagine the American president being charged with a crime against humanity. It’s pretty far out, but climate change is the most serious existential threat of the 21st century.
Jeff Schechtman: One of the other areas that comes up periodically in this conversation about impeachment is the whole issue of rationality and the 25th Amendment. Talk a little about that.
Allan Lichtman: Yeah. Few people are aware that there’s another mechanism for removing the president different from impeachment, and that is the 25th Amendment enacted in 1967, which says that you can remove a president if he’s unfit to carry out the duties of office. That could include mental as well physical unfitness. The Amendment is not specific on that. It’s a very Byzantine process. It’s never been used, very difficult. It requires a majority of the cabinet and the vice-president, who are appointed by the president of course, to pronounce him unfit, and then ultimately if the president resists it’s up to the Congress, who can then remove him by a two-thirds vote of both Houses, so you don’t have to go through an impeachment or a Senate trial.
Now I’m not a mental health professional, but a number of very eminent mental health professionals have openly broken the so-called Goldwater Rule, going back to the candidacy of Barry Goldwater in ’64, and the rule is you don’t diagnose from afar political candidates and leaders. They’ve broken that because they think that Trump really is temperamentally unfitted to be Commander-in-Chief of the Armed Forces and head of the Executive Branch of the United States.
I grew up in the ’50s. We were terrified of nuclear war. We thought we were all going to be annihilated. Well, for the first time again I’m terrified about the possibility of nuclear war. This raises serious questions that I think need to be pondered, whether or not Donald Trump is temperamentally fit to deal with questions of war and peace in the nuclear age that might require some pretty quick and decisive decisions.
Jeff Schechtman: Where can we look historically, Allan, for precedent to deal with any of these issues that we’re looking at today?
Allan Lichtman: Yeah, I think even though he wasn’t impeached, I have a whole chapter on Nixon which I think gives us the most guidance. Nixon, according to the Republican leadership, would have been impeached and about a third of the Republicans on the House Judiciary Committee voted for an article of impeachment, and would have been convicted, according to the Republican leadership. There are chilling parallels between Trump and Nixon. They both see themselves as beset by enemies. They both see themselves as at war with the press and a so-called establishment that’s against them. Neither man is anchored by strong guiding principles, but considers themselves first above all others.
The impeachment of Nixon I think is an important guide because generally, leaving out the particularities of it, what Richard Nixon was doing was fundamentally abusing presidential power, using presidential power for his own political and personal ends and not caring about fairness, tradition or law. We can certainly see in Donald Trump, leaving aside particularities, these same tendencies to be intolerant of criticism, to denigrate and challenge the free press, to demand in defense of his first travel ban absolute presidential power, to denigrate the courts, and it is these dangerous tendencies I think that draw the chilling parallels between Donald Trump and Richard Nixon.
Then you would specify particular acts that show the abuse of power, whether the use of the office for personal gain, the smashing of separation of powers, and in Donald Trump’s case of course what happened before the election. That’s an interesting case, because the Constitution does not specify you have to be impeached only for acts that occurred after election or after inauguration. Donald Trump could be impeached for what happened during the election.
Jeff Schechtman: Is there a problem or is this all offset by the fact that there is so much … I mean taking it back to the beginning of our conversation, there are so many areas to look at in this regard, that by looking at all of them none of them sort of rise to the level?
Allan Lichtman: Well, it’s a very good point, and I think we saw this during the campaign and we see it now during the presidency. There is so much going on. Unfortunately, every day and certainly every week he seems to be breaking precedent, be doing things that you hear the commentator say, “Oh, if anybody else had done that, you know, they would be driven out of the campaign. They would be driven out of office, but this is Donald Trump.” So it gets difficult to keep up with all the falsehoods that Trump says, all the contradictions between Trump one day and the next day, one week and the next, and it can be overwhelming and numbing for the American people, which is why I said it’s important to look at the administration holistically and look at the way in which it is using and perhaps abusing power, and then drill down to the specifics of it.
Jeff Schechtman: As you begin to do that, is it going to take an individual or group of individuals of either or both parties to really stand up and come forward in a patriotic country above party sense to really bring this to some kind of a head?
Allan Lichtman: You couldn’t be more correct about that. Absolutely. It’s not a process that’s going to unfold unto itself. I wrote this book in a patriotic sense. It’s not a political document. It’s a defense of our Constitution and our traditions, and nobody … This is what Republicans said when they impeached Bill Clinton, nobody stands above the law. Nobody stands above the Constitution. Arthur Schlesinger, I quote him in my book, Schlesinger Jr. said, “The genius of impeachment is that it affects the man but not the office.” It protects the office. It protects our democracy.
But you’re absolutely right. This cannot seem to be a wholly partisan maneuver. It can’t seem to be some means for political gain. Then it will backfire. You will get blowback. It’s got to be at least to some extent a bipartisan effort. Some individual or some small group of leaders have to have the courage to say: “We’re going to put our country first above all personal and partisan considerations and take this risk,” because it’s a very risky thing to do.
Jeff Schechtman: Given the level of polarization, given the level of divide in the country today, arguably far worse even than it was in the ’60s and ’70s, back in the Nixon era … Given all of that, is something like this even possible without tearing the country apart in ways that we might not even imagine?
Allan Lichtman: Well, I think impeachment can actually be salutary. Yes, there’s tremendous polarization and the country is divided, but you know, when Andrew Johnson was impeached in 1868 during the Reconstruction Period, the divisions were even greater and the tensions were much higher than they were today. The conflicts between Democrats based in the South and Republicans based in the North were immense and the wounds of the war still had not healed, and yet the impeachment of Andrew Johnson actually had a salutary effect.
He wasn’t convicted, but in the remaining months of his presidency he moderated his policies. He stopped obstructing the Reconstruction efforts that were aimed at bringing newly freed slaves into full participation in American life, so impeachment actually had a chastising and positive effect. It may or may not have that effect today, but I think the example from the 1860s shows that the effects of impeachment need not be to tear the country apart, but could actually help bring it together.
Jeff Schechtman: Of course that was before 24 hour news, cable television, and the internet, et cetera, et cetera, et cetera.
Allan Lichtman: Oh my goodness yes. Long before. That’s when people actually read newspapers, believe it or not, and read them in depth.
Jeff Schechtman: And news traveled a lot more slowly.
Allan Lichtman: That’s correct. A lot of it traveled by word-of-mouth, but you’d be surprised on how informed people were even back in the 1860s, remarkably so. And I have to say if you would read any of the debates in Congress as compared to what goes on today, the level of knowledge, the level of depth and sophistication would make us embarrassed today, quite frankly. We don’t hold a candle to the political leaders of the 19th century.
Jeff Schechtman: I think that the other thing that would surprise people if they went back and read all that is the level of vitriol in some of those arguments back in those days.
Allan Lichtman: Oh yes, it was bitter. Look, we just fought a war. Hundreds of thousands of Americans had died. In today’s population it would be many millions of Americans. The South was utterly devastated by the war. Millions of newly freed slaves who had never tasted freedom before had to be integrated into the body politic, so you bet there was plenty of vitriol and bitterness and tension, which is why I make the point we tend to think of our own times as unique, but they’re not.
Jeff Schechtman: Do you sense a fear of opening up the Pandora’s box of impeachment today, particularly in Congress, particularly in Washington?
Allan Lichtman: Absolutely, and legitimately so. Impeachment should not be taken lightly, and I point this out in my book. You don’t impeach on policy. You don’t impeach on style. You only impeach on serious threats to American life and society. And yes, impeachment should never, ever be taken lightly. But I also point out in the book that the Founding Fathers were very explicit in establishing impeachment as a peaceful remedy for a rogue president.
Benjamin Franklin was very specific about this, looking at history, how a leader previously removed or changed through revolution or assassination. Impeachment, the Founding Fathers recognized, was put into the Constitution as a peaceful alternative to perpetual revolutions and assassinations. We didn’t want to become like the Roman Empire, one leader after another being dispatched.
Jeff Schechtman: Finally, talk a little bit about legal remedies outside of impeachment. There’s many lawsuits being brought today, lawsuits being brought with respect to violation of the Emoluments Clause of the Constitution, other legal remedies that are being sought outside of impeachment. Talk a little about that finally.
Allan Lichtman: Yeah. There really aren’t any good legal remedies outside of impeachment. What do you do to a president who violates the Emoluments Clause. The Emoluments Clause doesn’t have an enforcement mechanism. You can’t fine the president. You can’t bring him before the bar of justice. The only remedy really is impeachment for presidential violations. That’s pretty much it, but once … If you are impeached and removed from office, a president is then vulnerable to prosecution, whatever he may have done while president or before, which is why of course Gerald Ford pardoned Richard Nixon.
The only other Constitutional mechanism, and it’s only been used once and it’s very, very controversial … It’s not clear whether Congress has the power to do this, but who’s to stop them, is censure, actually censuring officially the president, something that Congress has done to its own members. For example, Joseph McCarthy, the famous hysterical anti-Communist, was censured. And that was done only once under Andrew Johnson. And then when Johnson’s allies got back in control, the censorship was removed, the big black marker from the annals of the Senate.
So that would be really the only other mechanism, and it’s not even clearly Constitutional. There’s very little you can do to halt a rogue president other than impeachment. But remember, impeachment isn’t conviction. You still have to be convicted by two-thirds of the Senate, and that has never happened for presidents. It’s happened for about eight judges, because they’re also subject to the same Constitutional provision of impeachment, and it would have happened almost certainly to Richard Nixon.
Jeff Schechtman: Allan Lichtman. Allan, I thank you so much for spending time with us today.
Allan Lichtman: This was awesome. Thanks for the in-depth questions. I really enjoyed it.
Jeff Schechtman: Thank you. Thank you for listening and joining us here on Radio WhoWhatWhy. I hope you join us next week for another Radio WhoWhatWhy podcast. I’m Jeff Schechtman. If you liked this podcast, please feel free to share and help others find it by rating and reviewing it on iTunes. You can also support this podcast and all the work we do by going to WhoWhatWhy.org/donate.