When the new Michigan Democratic congresswoman Rashida Tlaib said of Donald Trump, “We’re going to impeach that Motherf****r”, many of her colleagues and Democratic leaders were furious.
It wasn’t because they believe impeachment is off the table this year. But a premature, partisan rush to go after the President, even before any report by special counsel Robert Mueller, is politically perilous. It’s a good bet, however, that sometime later this year House Democrats will start an impeachment process with an uncertain outcome and full of risks for both parties.
The key figure will be House Speaker Nancy Pelosi. She will resist pressure from the left to move aggressively. Her top priority is to protect the 43 new House Democrats just elected from Republican-held seats.
Yet by late spring or early summer there likely will emerge an accumulation of more damaging goods from Mueller, and probably scandalous revelations from the House Intelligence and Oversight Committees newly led by the aggressive and smart Democratic chairs Adam Schiff and Elijah Cummings. This will make an impeachment inquiry unavoidable.
There are two models. The risk for Democrats would be to follow the 1998 partisan Republican effort to impeach Bill Clinton for lying about a sexual affair. It boomeranged. The wiser course is the path laid by the 1974 impeachment of Richard Nixon. I covered what was a careful, methodical and ultimately compelling case that attracted a third of the minority party Republicans and forced Nixon to resign.
Like these two impeachments, the table will be set by the House Judiciary Committee under the watchful eye of Pelosi. For now the Senate is merely an observer. The critical initial focus would be on the House Judiciary Committee, the panel that made the Nixon impeachment case and botched the Clinton one.
The committee is a challenge. In 1974 it was headed by a supposed New Jersey hack Democrat, Peter Rodino, who rose to the occasion and skilfully produced a bipartisan vote to impeach a President for the first time in more than a century.
The current chairman is Jerrold Nadler of New York, a television camera-loving partisan. If he seeks to replicate Rodino it will be complicated by a panel stacked with ideologues; Pelosi will have to stave off the left-wing zealots, and pressure from the right-wing crazies will complicate getting any Republican support. One Republican to watch is Wisconsin’s James Sensenbrenner, an irascible senior conservative with an independent streak.
Then there’s the vexing issue of what constitutes high crimes and misdemeanours, the standard the US constitution sets for impeachment. Trump almost certainly violated campaign finance laws in paying hush money to a former mistress in 2016, and campaign operatives probably colluded with the Russians to help him win the presidential contest. But even some Democrats wonder if those are impeachable offences. It seems likely that Trump’s company, like his foundation, engaged in illicit activities, perhaps fraud, but that was before he became President. Both Nixon and Clinton were found guilty of obstruction of justice, but that is not clear cut yet with Trump.
It is conceivable if Mueller does not deliver any “smoking gun”, and Republicans remain unified with Trump, Pelosi will decide to drop a full-fledged impeachment effort and move instead for a censure. That’s what Republicans should have done 20 years ago with Clinton.
It is likely that Mueller has more incriminating stuff even if it is short of a smoking gun. (That term became part of the impeachment vernacular with Nixon, although the tape that conclusively showed the President’s complicity in the Watergate scandal came out after the Judiciary Committee already had voted three counts of impeachment.)
In America, impeachment ultimately is not a legal but a political decision: high crimes and misdemeanours are whatever a majority of the House and two-thirds of the Senate determine. Public opinion matters and a conviction only would be possible if Trump slips in the polls, which now show that a slim majority oppose impeachment, including almost all Republicans.
Finally, beware static analysis. In January 1998, following revelations of Bill Clinton’s sexual affair with a White House intern, some congressional Democrats thought he was a goner. In January of 1974, before the committee built the case, not one Republican backed impeachment of Nixon.
Al Hunt covered the Watergate affair for the Wall Street Journal and has written about US politics from Washington ever since