At noon on January 3, the 116th Congress will sit. The Senate, its upper house, with two members from every state, will remain in Republican hands. But the House of Representatives, its lower house, with its seats – gerrymandering aside – allocated by population, has changed hands, and from January the Democrats will be the majority party.
What could this newly minted Democratic Party-controlled legislative body do? Just how hard could they make life for the president? And does it mean there is a possibility that he could now be impeached?
In order: lots; extremely; and – um, well, no, not really, but it’s complicated.
The short answer to the third question is simply no. Under the constitution, impeachment is a two-stage procedure. The first stage, which happens in the House, represents the formal leveling of an accusation – that is “impeachment”; but there is a second stage, where that accusation is tried, weighed and judged, and that takes place in the Senate.
The system is laid out in Article I of the US constitution, which states that the House of Representatives “shall have the sole Power of Impeachment.” So far, so good. But that’s not as clear cut as it sounds, because it goes on to say that the Senate “shall have the sole Power to try all Impeachments.”
In practice, that means that the House must first pass an impeachment resolution. This is an official document containing one or more individual accusations of specific crimes, known as “articles of impeachment.”
Any member of the House can propose an impeachment resolution, but it will then be referred first to the House Judiciary Committee for review. If they pass it, it then goes to a full vote of the House. But the House passing articles of impeachment merely triggers the second stage. Impeachment is a form of official criminal accusation, and the House’s role has been compared to that of a criminal grand jury handing down an indictment.
In that sense, the second phase of impeachment is then like the convening of a giant criminal trial, presided over by the Chief Justice of the Supreme Court, with members of the House Judiciary Committee acting as prosecutors, and the Senate acting as the jury.
It isn’t a criminal trial in the sense that it can level actual criminal charges, but if the Senate votes to confirm the impeachment then the president is removed from office. This is the difference between the House’s constitutional “power of impeachment” and the Senate’s constitutional “power to try all impeachments” – and the Republicans still control the Senate.
It’s even more unlikely than it sounds, in fact, because the constitution states that impeachment requires a two-thirds majority in the Senate to pass, so even if the Democrats had won every swing seat they lost on Tuesday they still wouldn’t have anywhere near the votes they need in the Senate. So: it’s a no-go.
…Mostly. While it is true that bringing impeachment, as it were, to completion, is extremely unlikely, it’s not impossible. Trump is protected not by an impenetrable wall, but by people: specifically, the Republican party. That doesn’t seem like it’s changing any time soon, especially as the midterms did not bring anything like the anti-Trump tsunami of public opinion some hoped for, but it’s worth noting that public opinion is fickle and can change fast.
It is extremely difficult, but not impossible, to imagine that at some point Trump might blunder across some line which would change that, and so change the attitude of some Republican senators. In all of his outrageousness, Trump has not yet crossed that line, to the dismay of Democrats, but that doesn’t mean it’s not out there.
Maybe the investigation by special counsel Robert Mueller returns incontrovertible evidence of treason. Maybe it’s economic implosion of some kind, or a natural disaster, or maybe something worse still: remember that Trump controls the world’s largest arsenal of nuclear weapons. Perhaps it would take a catastrophe, but somewhere there is surely still a line that can be crossed.
It might not necessarily have to come to that, though. An impeachment resolution may never be able to hope to muster enough votes to have any chance of passing the Republicans in the Senate, but if done right, it nonetheless would present plenty of juicy opportunities for the Democrats to make life extremely difficult for the president and his party.
There are two main reasons why. The first is the power to issue subpoenas – summonses backed by the force of law – and the second one is the power of political spectacle.
An impeachment trial, even before an intransigent Republican Senate, would be an opportunity for the orchestration of a grand political spectacle on the largest possible world stage. Nothing like it has yet been attempted in the internet age. It could definitely be risky: no-one has proved themselves more difficult to out-spectacle so far than Donald Trump. Worse, political theatre like this could very easily backfire and end up serving only to energise his base – in fact, they are already screaming about the mere possibility of it – but it could also be incredibly rewarding.
The constitution specifies that a president can’t be impeached for just anything; it has to be for “treason, bribery, or other high crimes and misdemeanors.” But that is vague, and a skilled prosecutor would surely have little difficulty in linking at least one of those activities with the current president, and at least in theory they now have the power to do so.
In fact, now that the Democrats are in control of the House, they also have a number of lesser options to try to pin Trump down to testify before attempting impeachment. Remember Hillary Clinton sitting for hours of questioning before the House Oversight Committee’s investigation into the Benghazi attacks? She voluntarily sat for that inquisition, but if she had refused to do so they could have issued a subpoena, and they are not the only House committee to have such power. Those all belong to the Democrats now for the first time in eight years, and you can bet they’re going to use them.
Still, impeachments have happened before, and in living memory: Richard Nixon resigned before the proceeding could be completed, and Bill Clinton was impeached by a Republican House of Representatives and then acquitted – albeit damaged – by the Senate in the second phase. They are not unthinkable.
Trump has defied all the laws of political gravity so far by simply bluffing or outright lying his way out of every situation he has faced. So far, preposterously, he’s always been able to get away with it. But imagine him under oath, facing real cross-examination from a skilled lawyer – live on TV in front of the whole world. Maybe he’d find a way to slip out of it, but maybe also he would finally come apart, collapse in on himself under the weight of his lies, like a dying star.
He has some escape-routes. Special counsel Robert Mueller has had the power to issue subpoenas since his investigation began, but has not yet issued one for Trump himself. One of the first orders of business for the new Democratic House will almost certainly be passing some kind of law protecting and strengthening Mueller and the investigation, though that would still need to pass in the Republican-controlled Senate.
But there is some question over whether – and even how – the president could be compelled to testify if he refuses to comply with a subpoena. A sitting president, as Trump’s lawyers have repeated, is not subject to criminal indictment while in office. If Trump just says no, what happens then?
Confusingly, there are two relevant Supreme Court cases here with almost identical names. United States v. Nixon concerns the 1974 impeachment of president Richard Nixon over Watergate, and we’ll get back to that; Nixon v. United States, meanwhile, concerns the 1993 impeachment of Walter Nixon, a Mississippi federal district judge.
Walter Nixon was convicted of a felony – perjury, to be precise – but refused to step down even after he was imprisoned. He was successfully impeached by the Senate, but appealed on the grounds that they had heard only from a committee and not from him personally, and thus he had not been truly “tried” the way the constitution demands.
But the Supreme Court found that they had no jurisdiction to overturn the Senate’s impeachment vote. Chief Justice William Rehnquist wrote in his opinion that because the constitution specified that impeachment was a political act, it was “nonjusticiable” – ie, beyond the scope of the court’s constitutional oversight.
That may have done for Walter Nixon, but is it possible that Trump could try to use that ruling as precedent to wriggle out from under the subpoena power of House committees or Mueller’s investigation? That’s where the other case, United States v. Nixon, comes in.
United States v. Nixon was the Supreme Court case that came about when president Nixon tried to claim that he did not have to give up his secretly-taped recordings of conversations to the special prosecutor in the Watergate issue because they were covered by executive privilege. Executive privilege is a “somewhat murky concept” which has “never been defined legislatively” but “evolved through customary practice,” Mark Rozell, dean of the Schar School of Policy and Government at George Mason University, told NPR in March.
The court ruled that Nixon had to give the tapes over, and he eventually did. But what if he hadn’t? Trump and his lawyers have made it clear publicly that they believe executive privilege would protect him from such a subpoena. Now that there is a conservative majority on the Supreme Court, would they follow precedent or side with the president if it fell to them to decide? And even if they did decide to uphold the law, the Supreme Court has no army. What happens if Trump just says no? We’re getting into murky territory here and there are no clear answers, because we’re literally talking about the theoretical breaking-point of the American constitutional system.
That’s where that second part of what makes impeachment so compelling an idea for many, the political theatre, the crafting of a spectacle, comes into play. If the institutions fail, the public can still turn on you, in the end, if the show gives them the right cue. In theory, anyway. We remember that Bill Clinton was impeached, and we remember why, despite the fact that the proceeding was soundly defeated in the Senate, right?
Perhaps it will come down to a simple matter of judging the public mood. The idea that it might energise the right is a troubling one, for sure, and there needs to be a tactical element to the decision to impeach. But maybe the right has already dialled up their outrage to maximum. Maybe they did so years ago, abandoning all political norms in the service of the acquisition and retention of power. Perhaps the Democrats will finally make the calculation that the Republican party has left itself with no heights of righteous rhetorical outrage left to reach for? And in any case, surely impeachment was designed for just this kind of emergency?
And really, with Trump, how could it end any other way than with a great big show?