Trump’s Impeachment Prospects Have Little to Do with the Law

By David French

Sunday, January 07, 2018

On Thursday, the New York Times published yet another of its almost-weekly scoops about the Trump administration. This time, reporter Michael Schmidt detailed claims that Trump tried to use his White House counsel to lobby Jeff Sessions not to recuse himself from the Russia investigation, White House lawyers deliberately withheld accurate legal information from Trump as part of an apparent effort to stop him from firing Comey, and an aide to Jeff Sessions reportedly attempted to gather “dirt” on James Comey before Comey’s termination.

The article was framed around allegations that the president had potentially obstructed justice during the Russia investigation, and Schmidt noted that legal experts are “divided” as to whether there already exists enough evidence to bring an obstruction charge. In fact, immediately after the Times published its piece, the excellent Lawfare blog posted a special-edition podcast analyzing whether these new details materially advanced an obstruction case. The article did nothing to change my own view that so far there is insufficient publicly available evidence to conclude that Trump violated federal law.

But rather than spending time parsing the article and the relevant statutes, it’s time for some plain talk about impeachment. Any impeachment analysis will not ultimately turn on whether Trump violated the law. If we want to accurately analyze the prospects for impeachment, we have to understand that impeachment isn’t a legal proceeding. As my colleague Andrew McCarthy has explained in book-length detail, it’s a political process that’s influenced by legal arguments. The political branches of government make the decision. Members of the Congress — not the federal judiciary — determine if a president has committed “high crimes and misdemeanors” that require his removal from office.

Understanding this reality helps us understand the recent past. Why was Bill Clinton able to survive in 1998 in the face of overwhelming evidence that he committed perjury and obstructed justice? He was a popular president governing in a time of peace and prosperity. His average approval rating for his second term was a whopping 61 percent. House impeachment managers came forward with ample evidence of misconduct, but there was no chance that Democrat senators would vote to convict. Not only did the public (and much of the media) back the Democratic party in spite of the law, they arguably voted to punish Republicans for their impeachment efforts in the 1998 midterms.

What about Richard Nixon? As the Watergate scandal drip-dripped into the public square, overwhelming evidence of guilt accumulated, and the media thirsted for the president’s political blood, his approval rating plunged. He maintained a “loyal core” of 25 percent, but his disapproval spiked into the mid-sixties. Both men violated the law, but two different presidents operating in two different political environments achieved very different outcomes.

The lesson to take isn’t “unpopular presidents get impeached.” After all, George W. Bush hit dismal lows in his second term, but he never faced a realistic impeachment threat. The lesson instead is that the combination of credible claims of corruption or abuse of power, opposition-party control, and low public approval can drive a president out of office. Alter any one of these factors, and the president stays.

It’s for this reason that one can’t read the Times story, conclude that it doesn’t contribute to a legal obstruction of justice claim, and then decide that the case for impeachment is failing. Rather these stories represent their own “drip, drip” that not only hurt Trump’s popularity, they do so in a specific way that implies corruption. That’s the combination that advances the impeachment narrative.

The smarter members of Trump’s team understand this dynamic. Indeed, that’s why his best advocates (such as my old boss, Jay Sekulow) never forget that their legal arguments are not ultimately intended to persuade federal judges but rather the millions of citizen-jurists who are the court of public opinion. They know they can win a legal argument yet still lose if they alienate the public. Trump is highly unlikely to face actual federal prosecution, even if Mueller concludes he violated the law. Instead, he’ll face Congress, and Congress faces the people’s court.

So, where does Trump stand now? He’s in more peril than his supporters may understand. His base resides in a cocoon that’s thoroughly imbibed the opinions of its own tribe of legal experts. Some hear the phrase “obstruction of justice” and laugh. To them, the mere thought that the president has violated the law is unhinged #Resistance nonsense.

Outside of the base, however, two of the three preconditions for impeachment are perilously close to being met. Millions of Americans believe obstruction has already occurred. They listen to a parade of legal experts who claim Trump has already violated the law, and they’ve made up their own minds about Trump’s conduct. They may not be lawyers, but they believe something’s not right.

Even before Mueller completes his report, they’re satisfied that the president has abused his power, and this conclusion is supplemented by real concern that he’s unfit in other ways. Michael Wolff’s book advances the narrative that he’s unprepared for the presidency. His worst tweets unsettle the public. These factors taken together mean that Trump’s ending his first year with a 38.5 percent approval rating — a shockingly low number for a first-year president who’s presiding over economic growth, strong employment numbers, and military victory.

If Trump’s popularity slides further, and if the Democrats take the House, then he may well face the humiliation Bill Clinton endured — an impeachment vote in the House and a trial in the Senate — but with a media pursuing Trump with the same zeal that they pursued Nixon. Clinton enjoyed popularity and media backing. Nixon faced a shrinking base and unrelenting media hostility.

Three things can save Trump from this divisive and damaging fate, and only one of them is largely in his control. If Mueller exonerates Trump or the GOP retains the House, then Trump is safe. But Trump has virtually no influence over the Mueller investigation, and as of now the GOP is hoping to hold the House in spite of Trump. Democrats appear energized and ready to change the balance of power.

Trump has a much greater degree of control over his own popularity. He can’t change the past. The facts are the facts, and the evidence is the evidence. Millions of Americans have made up their minds about him. Their attitudes have hardened, and their ideas are fixed. Not everyone is ready to write him off, however, and he should be doing everything in his power to change the narrative, to divert attention from the drama of his presidency and instead focus on the policies and achievements of his presidency. Let’s be blunt: Provocative tweeting makes impeachment more likely. Rambling interviews make impeachment more likely. Anything and everything that’s likely to unsettle Americans, exhaust Americans, or provoke Americans is an action that brings him one tiny step closer to an involuntary exit.

Trump should view improving his public perception as a priority of the second year of the first term. But “less drama” is a tough sale for a president who’s dramatic by nature, built his brand on drama, and won a presidential election even as he crammed the news cycle with controversy. Yet when he beat Hillary Clinton, he ran against an unpopular person, one of the most-disliked politicians in American history. She couldn’t help but create drama all her own. If he “runs” against impeachment, he’ll be battling an idea — the alluring thought of a Trumpless government where his opponents promise that prosperity is possible without ceaseless panic.

In fact, with a modicum of self-discipline, it’s entirely possible to flip the script on hysteria and instability. All too many Democrats have pitched childish temper tantrums in response to conventional Republican reforms. They apply the same sky-is-falling, we’re-all-going-to-die hyperbole to tax cuts or individual mandate repeal that they do to the prospect of accidental nuclear war with Korea. A few months of peace and quiet in the White House — accompanied by peace and prosperity on the home front — could make a material impact. The first adults to act like adults may well win the day.

Trump fans who feel confident that he can beat the next progressive Democratic nominee must understand that Trump has to get there first. All the legal arguments in the world may not enough to save a president who won’t help himself.