It looks increasingly likely that Donald Trump will join Andrew Johnson and Bill Clinton in a club more exclusive than the Mar-a-Lago resort: that of impeached presidents.
The White House summary of the president’s phone call with Ukrainian President Volodymyr Zelensky and the letter from the intelligence community’s inspector general to the chairmen of the House and Senate intelligence committees has accelerated the pace and intensity of congressional action. Most Democratic members of the House of Representatives, led by a previously reluctant Speaker Nancy Pelosi, now seem convinced of the urgent need to undertake their constitutional duty of formally investigating the president’s fitness for office (or lack thereof).
So that hurdle has been cleared. But another remains: What to impeach him for?
History offers a wide spectrum of options to consider. At one extreme, lawmakers can compile a comprehensive list of all the things that the president has done to violate norms of presidential behavior, up to and including possibly illegal conduct. Such an expansive list could include everything from Trump’s conduct regarding Stormy Daniels to his public disparagement of the country’s law enforcement and intelligence institutions, from his personal profiteering while in office to his reported pledge to pardon executive branch officials who are charged criminally for expediting construction of his border wall. The other extreme would see representatives focus on just one egregious act, most likely the abuse of power apparent in the Ukraine affair.
In between, many options remain. Close to the get-him-for-everything camp was the approach of House Republicans in 1868, who adopted 11 often-repetitive articles of impeachment against Johnson. Among them was one, approved by a 2-to-1 margin, accusing Johnson of making “with a loud voice, certain intemperate, inflammatory and scandalous harangues, and did therein utter loud threats and bitter menaces . . . against Congress.” (Neither that nor any of the others received enough votes from senators to convict and thus remove the president.) Representatives also offered — but were unable to get passed by the House — articles of impeachment against Herbert Hoover and Harry Truman that accused those presidents of, among other things, attempting to disrespect and disgrace the legislative branch. Lawmakers certainly could try to lob similar charges at Trump now, but such sniping at Congress is considered par for the course now and such articles wouldn’t get far.
The House Judiciary Committee took a different path with Richard Nixon. There was no shortage of potentially impeachable acts; members of Congress had offered more than a dozen impeachment resolutions before finally passing three articles in the summer of 1974, covering obstruction of justice, abuse of power and refusal to obey congressional subpoenas. They did not pass two articles that described clearly worrisome behavior — concerning Nixon’s failure to pay taxes and the administration’s falsifications of records regarding the bombing of Cambodia — because even Democratic committee members wanted to focus on the main charges.
In Trump’s case, representatives who believe that the president should be removed from office presumably would like to see the articles of impeachment drafted in such a way as to maximize the likelihood of passage by the full House and the likelihood of the president’s conviction thereon in the Senate. It might feel good to throw the kitchen sink at Trump, to use hearings to try to develop a complete and detailed account of all of his misdeeds; there’s plenty of raw material to develop a robust list of impeachment articles. As my colleagues at Lawfare wrote last week when referring to the huge range of the president’s potentially impeachable activity, “Trump’s misconduct presents what the military calls a target-rich environment.”
But the process of selecting articles of impeachment isn’t about feeling good, checking boxes, answering every mystery or pleasing some part of a political base. It’s about moving forward with the solemn constitutional duty of calling the president to account for treason, bribery or high crimes and misdemeanors — and to make the case to the Senate that it should, in turn, take the serious but important step of removing an unfit president outside the normal electoral cycle.
So representatives would be wise to resist the urge to throw the book at the president. Because much of the Congress, and increasingly the public, are especially concerned about the president’s attempt to gain the assistance of a foreign country against a political opponent, a no-frills article of impeachment for abuse of power seems like a good start. It’s hard to avoid another article focusing on the attempts to obstruct justice documented in Volume II of the Mueller report. And a third article highlighting the president’s contempt of Congress and its effects on oversight and the impeachment inquiry makes sense. Beyond that, articles of impeachment run the risk for bringing diminishing returns for the ultimate goal of impeaching the president.
One caveat, though. Some benefit does derive from having an article or two in the mix that are less crucial than the others — not frivolous complaints, of course, but with slightly less gravity. The president’s habit of knowingly lying to the American people might qualify. Why? Some members of Congress will hesitate to vote for all articles of impeachment and will instead be looking for one they can reject, as a simple defense against charges that they are just out to get the president. The failure to convict Andrew Johnson, after all, derived in part from senators’ realization that his more radical opponents had been itching for an excuse to impeach — to the point of passing a law they virtually taunted him to violate (which he did).
Granting representatives an option to reject one such article of impeachment, while still voting for others that call out even more constitutionally heinous behavior, gives them a plausible argument that they are acting purely in the best interest of the United States, its laws and the public interest.