Stephen Gottlieb: Impeachment - The Political Question

Mar 27, 2018

Last week I commented that the issue of impeachment refocuses the flood of presidential moves. The possibility of impeaching the president raises another critical political question – would impeachment so annoy the public that Democrats would be defeated for trying to impeach Trump? Or will the focus in the impeachment process on Trump’s misbehavior leave the public sufficiently disgusted that the next election would go to his opponents? There have been attempts to remove presidents by impeachment. They resulted in two trials in the Senate and one resignation to avoid impeachment. That’s too few cases to draw firm conclusions but they deserve a look.

President Andrew Johnson was impeached by the House and tried by the Senate in a dispute over how to implement the Union victory in the Civil War and to require the South to live under rules providing for equality without regard to race. It came to a head when Johnson attempted to fire abolitionists he’d inherited from Lincoln’s cabinet. By a single vote, the U.S. Senate decided not to remove Johnson from office. But General Grant won the election that followed and reversed Johnson’s policies. The Republicans who had fought to remove Johnson from office had the next eight years under Grant to consolidate their victory in the Civil War. Eight years later, the contested election of 1876 was settled in favor of Rutherford Hayes when the Republicans agreed to withdraw federal troops from the South and end Reconstruction.

President Richard Nixon resigned in 1974 before the House of Representatives could vote to impeach him over the cover up of the Watergate burglary by people working for the Committee to Reelect the President, or CREEP. The underlying burglary threatened to distort the electoral process. The cover-up threatened to prevent prosecutors and courts from enforcing the law. When Nixon resigned, he was succeeded by Vice President Gerald Ford. Two years later, Republican Gerald Ford was defeated by Democrat Jimmy Carter.

In 1998, the House impeached Democrat Bill Clinton on charges related to sexual encounters and Clinton’s denial under oath that he had sex with a woman not his wife. This was certainly an extension of the idea of impeachable offenses to the private morality of the president rather than his discharge of public duties. But Clinton’s misbehavior has been trumped by the present president whose pornographic language, boasts, actions and affairs have gone much further than anything that Clinton was charged with.

In 1999 a Senate majority acquitted Clinton on one of the charges and the Senate split 50-50 on the other. Since the Constitution requires a two/thirds vote to convict, the result wasn’t close. In the following year, Democratic candidate Al Gore, despite trying desperately to avoid any connection to Clinton during the campaign, was defeated by Republican candidate George W. Bush for President. Gore won the popular vote but not the electoral college.

Thus, in the twentieth century, the party impeaching the challenged president won the next election – the Democrats after Nixon resigned and the Republicans after the impeachment of Clinton. In the nineteenth century, the next election went to General Grant, who was very much opposed to the behavior of the impeached president Andrew Johnson.

We have no experience with a president who lost the trial in the Senate. The risk to the president’s objectives has been from impeachment itself. The public’s reaction so far has been to condemn presidential misbehavior and change parties. That history is illustrative but certainly not conclusive of what the public would do now. On the other hand, there are so many serious issues that it’s fair to paraphrase the current president: Dirty Donald; lock him up.

Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School. A widely recognized constitutional scholar, he has served on the New York Civil Liberties Union board, the New York Advisory Committee to the U.S. Civil Rights Commission and was a US Peace Corps Volunteer in Iran. His latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics.

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