**Over several posts, I hope to look at 1) what the Constitution says about impeachment, 2) presidential impeachments in history, and 3) how President Trump’s actions should be judged in light of the Constitution, history, and other standards frequently brought to bear.**

Impeachment is often described as the nuclear weapon of the legislative arsenal. Though rarely used, its mere existence affects combatants in the field. Only 20 federal officers have ever been impeached by the U.S. House. The Senate convicted eight of those, all of them judges. Donald Trump is the third president to go through the process. President Nixon would have been impeached, but his resignation short-circuited the process.

Data wonks joke that one case is an anecdote, two is a trend, and three make data. Including Nixon, though he was not impeached, pushes us over the magical threshold and should give us at least a small sense of how President Trump’s actions, and the charges against him, stack up to history.

Divided Government and Impeachment

Impeachment does not occur in a political vacuum. Impeached and resigned presidents are in sharp conflict with the other branches of government. All these cases stem from divided government, where the President ran afoul of a Congress at least partially controlled by another political party. Not all inter-branch conflicts spill into presidential impeachment, but all presidential impeachments are battles in partisan wars. Andrew Johnson, Richard Nixon, and Bill Clinton occupied the White House while the opposing party controlled both chambers of Congress. President Trump’s chances of impeachment escalated once Republicans lost control of the U.S. House in the 2018 mid-terms. Of course the corollary is also true. Some of our greatest abuses of power took place in unified government where little chance of impeachment existed. President Roosevelt’s executive order that allowed for the detention of Japanese American citizens during World War II is just one example.

Divided government was a bit unusual when President Johnson stared down Republicans in Congress after the Civil War. Since the late 1960s, it is the norm. It is no accident that three of our most concrete constitutional crises have occurred since then. We may be witnessing the transformation of impeachment itself. It may no longer be the nuclear bomb of inter-branch conflict; instead, it could become just another partisan weapon used to drag down the rival party’s standard-bearer in the White House. This would be a dramatic shift in how we view checks and balances in our system. Presidents may eventually calculate that if they cannot be removed, impeachment does not matter. As an incentive toward better behavior, impeachment may be degrading before our eyes.

Outsiders

Beyond partisan wrangling, Johnson, Nixon, and Trump, were all outside the dominant political culture when they assumed the presidency. Johnson, a Democrat from Tennessee, was the odd pro-Union southerner who ran with Lincoln to bring bipartisanship to a broken nation. He was not just from a different party than the Republicans who nearly removed him from office, but from a different region of the country that happened to be at war with the government. If there was ever a presidency, besides President Trump’s, that seemed tailor-made for impeachment, it was Johnson’s.

Nixon was well inside the ideological boundaries of the Republican Party. He had been a member of the House and Senate, as well as Vice President to Eisenhower. Calling him an outsider seems a stretch, but his status hinged on his own perception of the political culture. Nixon was raised literally and figuratively a great distance from the East Coast elites in both parties. He had gone to the wrong schools, wore the wrong clothes, and had the wrong bank balance compared to the Kennedys or Rockefellers. (Clinton also came from humble beginnings, but, at least from the outside, mixed more comfortably in elite circles than Nixon.)

Like Johnson, Trump’s outsider status was inherently political, but unlike our first impeached President, Trump assumed the presidency with a publicly unified party behind him. Trump took aim, at least rhetorically, at the established powers in Washington, D.C. and ran a populist campaign, which has carried into his presidency. This creates a particular conflict not only with those who control Congress, but with interests deep in the bowels of the federal bureaucracy and across the media that covers the White House.

Foreign Affairs and Impeachment

While Trump’s supporters will claim this conflict explains much of the Ukraine scandal, and supplies further evidence of the “deep state,” I think they are mostly wrong. Trump’s agenda, especially in foreign affairs, has been opposed to the long-standing foreign and national security policies of the American regime. His approach to Canada, France, England, and Germany, along with his routine savaging of NATO, surely set off alarm bells across the NSA, CIA, and the State Department. His willingness to negotiate with, and legitimize, North Korea and Turkey, as well as his seemingly warm relationships with Putin and Xi, did the same. But as much as some of his critics would prefer to forget it, President Trump has expansive power over foreign affairs, including the ability to hire and fire ambassadors and to negotiate with foreign governments. The conflict happened when he circumvented normal channels of power and used his personal attorney to help pressure Ukraine, arguably for his own political benefit.

This gets at one of the most significant differences between President Trump’s impeachment and crises that came before. Johnson, Nixon, and Clinton all ran afoul of Congress over domestic concerns. Trump’s most proximate problem, Ukraine, involves constitutional powers that have the least amount of inherent restraint. This has made it much harder for the U.S. House to make a clear argument against President Trump. We are used to the “imperial presidency.” The President is such a towering presence over foreign affairs that it may be difficult for the public to even recognize an abuse of power in this context. So, while power over foreign policy is most likely to be abused, since it has few checks, it may be the most difficult to prove abuse since it is nebulous and Congress, for decades now, has deferred to presidential authority.

The Cases Against the Presidents

When you look at the acts surrounding impeachment, more similarities and differences emerge. The cases against Clinton and Nixon were stronger. Nixon was in the process of being impeached over obstruction of justice, abuse of power, and contempt for Congress. Clinton was charged with perjury and obstruction of justice. Trump’s articles of impeachment do not obviously involve criminal acts. Instead of obstruction of justice, House Democrats settled on “obstruction of Congress” because of the President’s refusal to provide documentation and witnesses, even under subpoena. Nixon also refused to turn over material to Congress, but the matter was adjudicated through the federal judicial system, which eventually ordered him to cooperate. Practically, that was the beginning of the end of Nixon’s presidency. I assume the Democrats went with the more nebulous phrasing, “obstruction of Congress,” because they felt they could not prove a criminal case (of either contempt of Congress or obstruction of justice) against the President. While President Trump can be impeached and removed without breaking a law, it is a harder case to make. The argument becomes more political than legal.* The House Democrats will likely rue their decision to forego a judicial process to force the testimonies of Bolton, Mulvaney, and others. President Trump would have claimed executive privilege, but the Court has limited privilege, at least a bit, in these kinds of kerfuffles.

The case against Trump is constitutionally weaker, but I think it is still factually strong. This is not a popular position on the center-right today, but I think the facts are obvious. President Trump attempted to leverage foreign aid for Ukraine to extract investigations into his political rivals. His supporters have argued these investigations were in the national interest, that they are well within his powers, or even if they were abusive, these are not impeachable offenses. The next blog post will evaluate the strength of the case for removing President Trump on these and other grounds.

*President Johnson’s impeachment was the most unusual. Congress passed the Tenure of Office Act to prevent him from firing federal officers, including cabinet members, who were sympathetic to the Republican view of Reconstruction. Eventually the House drafted eleven articles of impeachment, all revolving around Johnson’s supposed abuse of his powers. Three articles were voted on and all three failed to convict by one vote. The proceeding was suspended at that point.