At this point, it should be clear that impeachment is a political process, not a legal one (Julia Azari has a good explainer on that point). But if impeachment is political, how does that help us understand why it’s happening now, and not before? Or how the possibility of Trump’s impeachment compares, politically, to previous impeachments?
An impeachment process is informed by legal standards and judicial norms. But since America has never removed a sitting president from office using impeachment, no one knows how it works. There is no precedent. We’re literally making this up as we go along. The constitution tells us that presidents can be impeached for “treason, bribery, or other high crimes and misdemeanors.” But, how do the constitutional standards help us understand when we’re in the midst of a political situation that could arise to those standards, according to Congress and public?
I came up with 6 characteristics of a scandal that elevate its political status. These characteristics are not based in deep political science theory, and they resemble the elements of a plot to a best-selling political thriller novel. They are characteristics that, in my own personal reading of the news and history, seem to take things up a political DEFCON level. This is a qualitative hot take and appropriate caveats apply (the list is not comprehensive and the categories are almost certainly not equally weighted). The characteristics include:
1. Is the president accused of maligning political opponents? Scholars of comparative politics tell us that a key feature of healthy democracy is that political elites treat their partisan opponents as legitimate actors. When a sitting president is accused of violating that tenet of democracy in some way, it can be a sign of democratic demise and of increased urgency in the viability of the presidency. Presidents that are accused of maligning their opponents may be more susceptible to impeachment. But this alone would be insufficient.
2. When a president is involved in a scandal that involves the intelligence community, the stakes get higher. If the intelligence community is involved, it means that national security and foreign countries are somehow involved. These elements raise the mystery and intrigue factor, the it’s-bigger-than-us factor, and the sense that high-powered people are involved.
3. Anytime secret identities are involved, the intrigue factor is raised. Spies, undercover actors, protected witnesses, and secret sources are all examples of under the radar individual actors that can raise the profile of a scandal by making it appear out of reach of the general public.
4. Lies. When presidents are caught in lies, the stakes get higher. But this alone is insufficient for impeachment.
5. Any case in which the president is accused of corruption or conspiracy raises the stakes for impeachment. The public will be much more interested in scandals that reveal the president to have acted in a way that is manipulative, unethical, or sneaky. Another key feature of stable democracies is that the people in power tend not to use all their power just because they have it; rather, they keep their actions in check, known as forbearance. Presidents that violate this norm may be more susceptible to impeachment.
6. Finally, since impeachment is political, not legal, it can only really take hold if Americans understand why it’s important. To that end, impeachment isn’t a real possibility unless there is a simple narrative about why the president should be removed from office. If a president’s offenses are so complicated that the average news consumer cannot easily explain it to their neighbor, then the issue may just be too complicated to resonate. Unless the threat and purpose of removal is clear, it may not rise to the level of urgency that warrants an impeachment.
I took these six simple characteristics of a potentially impeachable act, and applied them to two previous impeachment cases, and several possibilities in the Trump case. In the case of Richard Nixon, he was not impeached, but resigned from office when it appeared that he would be impeached and removed from office. In the case of Bill Clinton, he was impeached by the House, but the Senate failed to convict him and he was not removed from office. He finished two full terms as president with an asterisk that scars his legacy. In the case of Donald Trump, there are a host in congressional inquiries on-going against him, any one of which may have the potential to rise to the level of importance as to be impeachable.
Applying the impeachment characteristics to the cases can help us see why the current case of Trump and the Ukraine whistleblower has risen to the level of potential impeachment.
The Ukraine whistleblower case satisfies
all the characteristics of intriguing
politics that make a case impeachable.
I apply the six characteristics to the Nixon, Clinton, and Trump cases, selecting 6 potential Trump scandals to include in the exercise. A check in a box indicates that the questions surrounding that issue satisfy a criterion of the impeachment characteristics. The Trump scandals include the following questions:
Trump’s failure to release his tax returns and whether he’s hiding information that reveals conflicts of interests
Trump being accused of bank fraud in effort to conceal business practices
Evidence from the Mueller Report that shows the Trump campaign requesting and then benefiting from foreign interference in the 2016 election
Evidence from the Mueller Report that Trump obstructed justice during the Meuller investigation of Russian interference in the 2016 election
Evidence that Trump is in violation of the emoluments clause by continuing to profit from his business, which profit from his position as president, while he serves as president.
The recent charge brought forth by a whistleblower that Trump coerced a leader in Ukraine to investigate his political opponent, Joe Biden (candidate, but not yet a nominee, for the Democratic Party in 2020), AND that he withheld financial aid to Ukraine in an effort to incentivize the investigation of Biden.
By this highly non-scientific standard, it’s clear why the news breaking on September 24, 2019 has now risen to the level of impeachable offenses, according to leaders of the House of Representatives: the Ukraine whistleblower case satisfies all the characteristics of intriguing politics that make a case impeachable. I should note that in all the cases examined here, the White House and the House were controlled by opposite parties. There are no examples of same party impeachments, so that should probably be another characteristic on the list. It’s just that in the cases I examined, there would be no variance across that characteristic.
If we want to understand why impeachment is happening now and not earlier in the Trump administration, and how the potential impeachment of Trump compares to prior impeachments, these characteristics may help us understand how we got here.