A Constitutional View of Impeachment: Is Donald Trump at Risk of Losing the Presidency?

While the 2016 presidential campaign was one of the most heated in history, the drama didn’t stop when President Trump was sworn into office. In fact, there have been an unprecedented number of controversies since Donald Trump became the Commander in Chief, and it seems that there is a new storm every few weeks.

From the travel ban, to allegations of Russian collusion, to not taking a hard enough stand against the incident in Charlottesville, Trump is getting hit from all directions with serious accusations, and there has even been talk of impeachment. While that can sound quite alarming to the average citizen, impeachment is a legal and constitutional issue, and many people don’t understand how it works and what it may mean for Trump’s presidency.

What is Impeachment?

The process of impeachment is widely misunderstood. In layperson’s terms, impeachment is a specific power given to Congress to try government officials for certain crimes and potentially remove them from a federal office. It is much like a court trial, except that it is political and the trial and verdict are all carried out in the hallowed halls of the United States Congress. Any member can put forth Articles of Impeachment which are much like an indictment in the criminal court system. The House of Representatives then views the evidence and hears witnesses about the specific charges made. If the House agrees that the government official has committed sufficiently serious crimes, it can decide to impeach this person.

A trial, however, is needed in the Senate to determine whether the impeached party should be removed from their office. These are two separate questions, and both are long and drawn out processes. In very few instances is the official removed even when the impeachment itself is successful.

Are the Charges Against Trump Serious Enough?

The House of Representatives can impeach the president if he has committed bribery or treason, and these are relatively straightforward charges if there is sufficient proof. There is, however, a more gray area known as high crimes and misdemeanors, and these categories are open to quite wide interpretation. When it comes down to it, what is considered an impeachable offense is really up to a particular House of Representatives at the time of the proceedings. In the case of Trump, the current makeup of both the House and Senate are largely conservative, so the deck is stacked in his favor when the rubber hits the road on this issue. While Donald Trump’s more liberal colleagues may be throwing everything they can at him, successfully impeaching a president is difficult.

In fact, only three presidents in the history of the United States Constitution have been faced with Articles of Impeachment and, of those, none were formally removed from office. President Andrew Johnson was narrowly acquitted in 1868, while the Watergate scandal of 1972 led President Richard Nixon to resign rather than face impeachment hearings. In late 1998, the only successful presidential impeachment occurred when former President Bill Clinton was tried for lying under oath about his relationship with his intern Monica Lewinsky. He was not, however, ultimately removed from office by the Senate.

The Court of Public Opinion vs. the Numbers Game

If impeachment is unlikely, then why does it seem to be so talked about with each new accusation made against President Trump? Politics is based on polling and perception, and anything that implies that President Trump is in legal hot water has the potential to make his approval rating tank. Liberals understand the numbers game and knows that getting enough conservatives to jump ship all the way to impeachment is unlikely. However, they may plant seeds of doubt in Trump’s constituency base, leaving liberals with a better political position at the end of the day. Even if nothing sticks, enough much mud in the water could sully Donald Trump in the eyes of American citizens.

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What if Impeachment Happens?

While it is not clear at this point whether Trump has committed any impeachable offenses, it is always possible that he will find himself subjected to Articles of Impeachment for a current or future incident. However, even if impeachment does happen, President Trump will have plenty of options to decide how he wants the situation to play out. Even if impeachment looked likely, Trump could emulate Richard Nixon and resign rather than allow the proceedings to continue to his ultimate removal from office.

Due to the heavily Republican Congress, the odds of there being enough support for an impeachment process, let alone a removal from office, are not high unless there is a significant change in the balance of power in Washington. President Trump continues to enjoy considerable support from Republican voters. Regardless of whether Trump’s Republican colleagues support him, partisan calculations still matter in D.C. and will probably shape this debate in the end.

As a constitutional law expert, Sujit Choudhry provides a broad range of legal opinions about current events and politics both in America and abroad. He operates the Center for Constitutional Transitions, an organization that provides research and education in support of constitutional transitions worldwide. 

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