Impeachment, by the Numbers

By Andrew C. McCarthy

Saturday, January 09, 2021

 

On August 7, 1974, a trio of Capitol Hill’s Republican eminences, led by Senator Barry Goldwater, called on a beleaguered President Richard Nixon at the Old Executive Office Building on the White House flank. The Watergate scandal was in its end stages. Consequently, the meeting was not about presidential decorum, evidence of obstruction, or the finer points of high crimes and misdemeanors. The meeting was about math.

 

Goldwater, along with his fellow Arizonan John Rhodes and Pennsylvania’s Hugh Scott (respectively, the House and Senate minority leaders), explained to Nixon that his support among Senate Republicans had collapsed. It was already inevitable that the House would move forward with the articles of impeachment that had been adopted by its Judiciary Committee nearly two weeks earlier. Now, the only practical question was whether the president could count on more than a third of the Democrat-controlled Senate, where Republicans held just 41 seats. Goldwater, Scott, and Rhodes assessed that Nixon’s support had dwindled down to no more than 15 senators, and probably fewer.

 

Contrary to lore, none of the lawmakers implored the president to resign. Nixon, a sophisticated man and calculating politician, did not need to be told that he’d reached the end of the line. The following day, he announced his resignation, effective at noon on August 9.

 

We are in a very different time now, but math hasn’t changed.

 

I took a beating on Twitter Thursday night for making what I thought was a commonsense observation that President Trump should be negotiating favorable terms for resignation “if there are 20 GOP senators who’d vote to impeach.” In our current climate, this was taken as a call for Trump’s impeachment. But it wasn’t a value judgment. It was a mathematical calculation.

 

As it happens, I do think the president has committed an impeachable offense, making a reckless speech that incited a throng on the mall, which foreseeably included an insurrectionist mob. These rioters ended up overwhelming security forces and storming the Capitol. They shut down a solemn constitutional proceeding, endangering the lives of the vice president and the people’s representatives. They ripped through the facility, causing not only significant property damage but grave injuries.

 

On Thursday night, the Capitol Police announced that Officer Brian D. Sicknick had tragically died — as this is written, it is unclear from press reports whether this was due to being struck by a fire extinguisher wielded by a rioter, to being exposed to a chemical agent during the melee, or to some combination of those things. Officer Sicknick becomes the fifth fatality in the attack; one apparent insurrectionist was shot to death by police and three others suffered such “medical emergencies” as stroke and heart attack.

 

This is a heinous offense on the president’s part, at least in terms of the Constitution’s impeachment standard.

 

As noted earlier this week, I have prosecuted the federal offense of inciting crimes of violence. In my judgment, there is no way the president could be convicted in a criminal trial. The First Amendment makes incitement a very tough proof. My defendant was convicted because I had strong evidence that he (a) made statements that unambiguously called for murder, (b) fully intended his statements to incite the commission of murder, and (c) was a globally notorious terrorist who had a history of directing subordinates to conduct lethal attacks. There is nothing like that in Trump’s situation.

 

The president was utterly irresponsible in his demagoguery. He plainly intended for thousands of supporters to march on the Capitol to create political pressure on Vice President Pence and congressional Republicans — i.e., to induce them to take what would have been lawless procedural steps to invalidate electoral votes that states had cast for President-elect Biden. There is no evidence, though, much less proof beyond a reasonable doubt, that Trump intended to instigate the Battle of Capitol Hill. He did not want anyone to be physically injured, let alone killed.

 

Yet the issue in impeachment is not criminal liability. As we extensively covered a year ago, impeachment concerns what Hamilton described as political offenses that call into question fitness for high public office. On that standard, the president’s incitement is indefensible, both for the undermining of our constitutional system that it promoted and the carnage it caused — however unintentionally. As someone who contended that the Ukraine kerfuffle was partisan theater masqueraded as impeachable offenses, I must say that this incident, to the contrary, is undeniably impeachable.

 

Nevertheless, I haven’t called for the president to be impeached and removed. Instead, to repeat what I said in the column linked above, while I would never argue that what he’s done is not impeachable, it would be a mistake to launch an impeachment now. There are only eleven days left in the president’s term. More important, removing him at this stage would gratuitously fan the flames of societal division that have intermittently exploded into violent rioting for the past year. Beyond that, I’ve opposed the caprice of invoking the 25th Amendment to remove Trump because that procedure is reserved for grave medical conditions that render a stricken president unable to perform his duties. That is not our situation.

 

Now, I am an analyst, not a public official. I do the best I can to figure out and explain what I think should happen, and write it in a way I hope people find persuasive (perhaps even some people on Twitter). But it doesn’t control anything, and the world is not exactly waiting at the edge of its seat to read it. The 25th Amendment is not going to be invoked. That is not because of what I may think about it; it is because Vice President Pence, the key official in the amendment’s procedure, is not of a mind to go that route — he knows it doesn’t apply and no Trump cabinet majority would support it in any event.

 

The president could, however, be impeached and removed by the Congress. That is less likely to happen than I supposed on Thursday. That evening, like everybody else, I heard determined-sounding statements by House speaker Nancy Pelosi and Senate Democratic leader Chuck Schumer, insisting that President Trump should be impeached if Pence failed to trigger the 25th Amendment. But I should have listened for the fine print. What they said is that, if Pence would not act, Congress should reconvene to impeach and remove Trump.

 

That is, Congress is not in session. Lawmakers are not scheduled to reassemble until just before Inauguration Day, January 20. They were only on Capitol Hill earlier this week because the new Congress needed to be sworn in, and the Constitution requires a joint session for the counting of the states’ electoral votes — the fateful January 6 proceeding that came under siege. With the pandemic spiking again, Congress has reduced its sessions to what is deemed truly necessary. It would thus require real effort and consensus to reconvene Congress for a brisk impeachment. Early Friday afternoon, Pelosi reaffirmed that she could bring the House into session in the middle of next week, but no final decision had been made.

 

Even if Pelosi succeeded in bringing the House back for a whirlwind deliberation and vote on one or more articles of impeachment sometime next week, Schumer will not become the majority leader until at least January 20. (That is when the 50–50 Senate’s tie-breaking vote, Vice President-elect Kamala Harris, is sworn in as Pence’s successor; it could also take an additional day or two, depending on when the two Democrats who prevailed in Georgia’s run-off elections are sworn in as senators.) That leaves matters up to the GOP leader, Senator Mitch McConnell. He no doubt has genuine concerns about the potential for more destructive behavior by the president — after the last two months, who doesn’t? But, besides how divisive an impeachment would be for the country (and how alienating it would be to millions of Trump supporters), McConnell also has to weigh institutional damage. A Senate impeachment trial on a heedlessly rushed time frame would necessarily have to shed many due-process protections. It would be a dangerous precedent — the Framers wanted impeachment to be hard to do, lest Congress have too much control over the president. As a practical matter, could anything resembling a credible trial be started and finished in what would be less than a week? Would it be worth the trouble given that, no matter what, Trump’s term ends in just a few days?

 

I don’t think so . . . although Congress, like the vice president and top executive officials, clearly must be prepared to act in rapid, bipartisan fashion if the president does or tries to do anything reckless between now and then.

 

All that said, what would happen if the House were to reconvene for a quickie impeachment, the Senate were to determine that it was obliged to conduct a trial, and the president had no way of running out the clock?

 

Well then we’re in the Nixon-Goldwater scenario. We’re beyond talking about what happened. We’re down to the math. In an impeachment trial, it requires the votes of 67 senators to convict and remove a president. There are 48 Democrats in the Senate, and they’d all vote to impeach. If 19 Republicans would vote with them, the president would be expelled — it gets down to 17 Republicans once the Georgia Democrats arrive.

 

Right or wrong is not the issue. It’s just the numbers.

 

For what it’s worth, I suspect that more Senate Republicans would oppose conducting an impeachment proceeding at this late stage than would oppose removing the president if there were such a trial. But to repeat the point I was trying to make on Twitter, if impeachment is realistically being contemplated, the president should consider resigning, because there is a good chance he would lose.

 

Resignation would be better for the country and better for the president — at least if he negotiated favorable terms. A pardon by Pence would be beneficial. Trump would get some peace of mind, but the government would not be making much of a concession: As noted above, the president’s incitement is not a prosecutable federal crime; a pardon would not affect the ongoing state investigation in New York; and while Trump’s more vindictive critics would have him prosecuted for jay-walking if they could, Biden and his attorney general nominee, Judge Merrick Garland, undoubtedly realize that the hounding of the former Republican president by the new Democratic administration — after a partisan slugfest of a campaign and the noxious Obama-Biden legacy of using the Justice Department to investigate political adversaries — would be bad politics and terrible for the country. They will want to move on from Trump, not make him a martyr.

 

Moreover, it would be much better for the institution of the presidency if Pence pardoned Trump than if Trump pardoned himself. Pence could justify it, as President Gerald Ford did for Nixon, as a matter of helping the country move on from a divisive controversy. For his part, Trump would probably have to agree not to seek public office again. Otherwise, there would be political pressure to proceed with Trump’s impeachment — even if he has already left office — in order to trigger the disqualification penalty that the Constitution makes attendant to conviction at an impeachment trial.

 

I continue to hope we can get through the next eleven days without all this drama. That is out of my hands, though, just as it is out of yours, dear reader. If the officials with the whip hand are determined to exercise it, then it’s not a morality play: It’s a chess game of time and numbers – until a Barry Goldwater inevitably knocks on the door and says, “Checkmate.”