Around midday on Monday, Congressman Al Green, a Democrat from Texas, held a press conference to call for the impeachment of Donald Trump. The firing of FBI director James Comey, Green said, was an obstruction of justice falling clearly into that basket of “high crimes and misdemeanors” prescribed in the constitution as grounds for impeachment.
Green should have waited five hours. Because by the time the sun went down on Monday, advocates for Trump’s impeachment had a lot more to work with.
Late on Monday afternoon, the Washington Post reported that Trump had divulged highly classified material to Russian diplomats in an Oval Office meeting last week – material so sensitive that homeland security officials scrambled to place calls to US intelligence agencies afterwards to warn them that the information had leaked, via the president’s mouth, to Moscow.
Trump told Russian foreign minister Sergei Lavrov and ambassador Sergey … about spying by an unnamed US partner that had revealed an alleged Islamic State plot involving laptop computers and airplanes, the Post reported.
The White House trotted out national security adviser HR McMaster on Monday evening to call the Post report “false” – but then the president, on Tuesday morning, as much as confirmed it on Twitter, although he did not specify the information was classified.
“As president I wanted to share with Russia (at an openly scheduled WH meeting) which I have the absolute right to do, facts pertaining … to terrorism and airline flight safety,” Trump wrote. “Humanitarian reasons, plus I want Russia to greatly step up their fight against Isis and terrorism.”
The episode has once again stoked the chorus calling for the impeachment of Trump, a chorus that has steadily built over the four months of the Trump presidency.
Legal analysts say that Trump is correct in noting his “absolute right”, as president, to share information as he pleases. The president’s discretion overrides any categorical classification, and there has been no assertion that Trump broke a law by allegedly sharing the information.
The president may, however, have broken his oath of office, according to analysis at Lawfareblog, whose top six analysts joined in a byline to write: “It’s very hard to argue that carelessly giving away highly sensitive material to an adversary foreign power constitutes a faithful execution of the office of president.”
The blog notes that allegations of oath violations have been central to every previous case of impeachment or near impeachment.
“Let’s not minimize it,” legal scholar Alan Dershowitz said on CNN late Monday. “Comey is in the wastebasket of history. Everything else is off the table. This is the most serious charge ever made against a sitting president of the United States. Let’s not underestimate it.”
The case against Trump was, to some minds, already strong. A campaign is under way to impeach Trump for allegedly violating constitutional bans on receiving certain gifts. Others have argued for an arcane application of constitutional law under which the vice-president and cabinet together might declare the president unfit to serve.
Green was not alone in seeing the firing of Comey as the last straw. As FBI director, Comey was leading an investigation into alleged ties between the Trump presidential campaign and Russian operatives. Trump told interviewer Lester Holt last week that the Russian investigation was on his mind when he fired Comey.
“And in fact when I decided to just do it, I said to myself, I said ‘you know, this Russia thing with Trump and Russia is a made-up story, it’s an excuse by the Democrats for having lost an election that they should have won’,” Trump said.
To many ears, the lines were a blank admission of obstruction of justice à la Nixon. In a Saturday Night Live parody of the scene, Holt, played by Michael Che, stops the interview to ask his production team: “So … did I get him? Is this all over?” Holt listens to his earpiece. “No, I didn’t? Nothing matters? Absolutely nothing matters any more?”
Who has been impeached before?
Two presidents, Bill Clinton (1998) and Andrew Johnson (1868). (Congress may also impeach judges.) Articles of impeachment were passed against Richard Nixon by a congressional committee, but Nixon resigned before the House of Representatives could vote on the matter, meaning that technically he was not impeached.
Impeachment does not mean expulsion from office. Under the constitution, impeachment happens in the House of Representatives if a majority approves articles of impeachment previously approved in committee. Then impeachment goes to the Senate, where a two-thirds majority vote is required to convict the president, upon which he would be removed from office.
Both Johnson and Clinton were impeached in the House but then acquitted in the Senate and remained in office.
What can a president be impeached for?
“Treason, bribery, or other high crimes and misdemeanors”, the constitution says. Needless to say, there’s debate over what all those terms mean.
Johnson was charged with breaking the law by removing the US secretary of war, which, in the aftermath of the civil war, was not his decision as president to make. Clinton was charged with obstruction of justice and with perjury, for allegedly lying under oath to a federal grand jury about his affair with Monica Lewinsky.
Had Nixon not resigned, he might have been convicted in the Senate on one of three charges: obstruction of justice, abuse of power or defiance of subpoenas. In any case, Gerald Ford, who was Nixon’s vice-president and who succeeded him, pardoned Nixon of any crimes a month after Nixon resigned.
Can a president be removed apart from through impeachment?
Theoretically, yes, under the aforementioned 25th amendment, which was ratified relatively recently, in 1967, to clear up succession issues made painfully urgent by the assassination of John F Kennedy.
The 25th amendment describes a process by which a president may give away power owing to his or her own disability, and a separate process by which power may be taken from a president owing to disability or inability.
The key players in the second case are the vice-president and the top 15 members of the cabinet. If the former and a majority of the latter decide the president is “unable to discharge the powers and duties of his office”, they submit that information in writing to the House speaker (currently Paul Ryan) and Senate president pro tempore (currently the Utah Republican senator Orrin Hatch) and just like that, the vice-president would be acting president.
The president may challenge such a decision, at which point a two-thirds majority in both chambers of Congress would be required to stop the president from regaining power.
It’s conceivable that Trump would not go quietly if his cabinet and vice-president Mike Pence were to gang up on him.
How long do impeachment proceedings take?
There isn’t much precedent to say, but the Clinton case proceeded through Congress relatively quickly, in about three months. That example may be misleading, however, owing to the years-long investigation of Bill and Hillary Clinton, including the Lewinsky affair, by the special prosecutor Kenneth Starr, which preceded it. Starr handed his report and research to the House judiciary committee, which therefore had no need to conduct a time-consuming investigation of its own.