Blog No. 142. Impeachment in the Air?

Donald Trump figured out a way to get the story of the Comey firing out of the headlines. That troublesome story was pushed to one side by a report in the Washington Post on Monday, that in meeting last week with the Russian foreign minister and Russian ambassador, Trump had revealed highly classified intelligence. The intelligence concerned a threat to civil aviation by the Islamic State using laptop computers and had been furnished to the United States by a Middle Eastern ally. According to the Post, Trump made the disclosure in the course of boasting about what “great intel” he gets.

The White House, recognizing the seriousness of the matter, sent the National Security Adviser, H.R. McMaster, to brief reporters outside the White House where he called the story “false,” stressing that the President had not disclosed any intelligence “sources and methods.” The Post story, however, had not claimed that sources and methods had been disclosed directly. Rather, as the Post made clear, the point was that from the details given by the President, such information could be readily be developed by Russia:

He did not reveal the specific intelligence-gathering method, but he described how the Islamic State was pursuing elements of a specific plot and how much harm such an attack could cause under varying circumstances. Most alarmingly, officials said, Trump revealed the city in the Islamic State’s territory where the U.S. intelligence partner detected the threat.

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The identification of the location was seen as particularly problematic, officials said, because Russia could use that detail to help identify the U.S. ally or intelligence capability involved. Officials said the capability could be useful for other purposes, possibly providing intelligence on Russia’s presence in Syria. Moscow would be keenly interested in identifying that source and perhaps disrupting it.  

McMaster did not address that point, or the fact that a strong protest is certain to be raised by the unidentified Middle Eastern ally (one that had reportedly expressed concern in the past over the potential disclosure of sensitive information). McMasters took no questions and his statement, described by some as a “non-denial denial” raised more questions than it answered. It did nothing to quell the controversy, but may have done serious damage to his own reputation. The front page of today’s New York Daily News carried a full-page photo of Trump wth the Russians and the banner headline “Leaker of the Free World.”

The disclosure of classified information by the President would not appear to be crime, or an impeachable offense, because the President has the authority to determine how classified information is to be handled. On the other hand, the problematic disclosure can only aggravate the President’s “Russia Problem” in general, and stoke the continuing outrage over the Comey firing. Last Friday, an op-ed column in the New York Times by Erick Erickson, a well known figure on the right, observed that after the firing of FBI Director James Comey, “the media and political left ignited with talk of impeachment.” Such talk, Erickson argued was a “fantasy.” Yet the “talk” that Erickson decried has not been confined to extreme partisans of the far left.

On Sunday, the Washington Post published an op-ed by the eminent constitutional scholar Laurence H. Tribe, entitled “Trump must be impeached. Here’s why.” Tribe has long been an unmistakable Democrat (having, among other things, represented Al Gore in Bush v. Gore), but he is widely respected within the profession. After reviewing the facts that have emerged thus far with respect to the Comey firing, Tribe argued that they fit the definition of the impeachable offense of obstructing justice:

…an obvious effort to interfere with a probe involving national security matters…. The question of Russian interference in the presidential election and possible collusion with the Trump campaign go to the heart of our system and ability to conduct free and fair elections. 

The Wall Street Journal, sometimes a critic of Trump but in recent days more a defender, lost no time in attempting to rebut Tribe in a Monday editorial:

Mr. Tribe is offended that Mr. Trump said in an interview that he didn’t like the Russia probe and that was on his mind when he fired Mr. Comey.

But this is an absurd standard. Presidents often disagree with decisions their deputies make, and sometimes they fire them for it. Are we supposed to believe that if a President opposes something an FBI director is doing, then a President can’t fire him?

Mr. Tribe is establishing a standard by which an FBI director—or even an Attorney General—could never be fired. All a director would have to do is begin a single investigation that might affect the President, and then he would be liberated from supervision. This would de facto strip the President of his constitutional authority to supervise the executive branch.

Although the Journal distorted Tribe’s argument and the “standard” it implies, an obstruction of justice charge may be a stretch. Much remains to be known about Trump’s action and its motivation, and it may be that Trump was motivated more by childish petulance than a serious intent to impede the FBI’s Russia investigation. A first step in obtaining additional information should be to obtain public testimony under oath by Comey, Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein. It has been announced that Rosenstein will brief the entire Senate behind closed doors on Thursday, but while that may be helpful, it is no substitute for public testimony. In addition,Congress should obtain include all pertinent documents (as well as tapes, if any, of Trump-Comey conversations). Congressional inquiry should proceed forthwith: it need not, and should not, wait for the House Judiciary Committee to take up the issue of impeachment.

Whatever the theoretical merits of a Trump impeachment, it is clear that the Republican-controlled Congress is a very long way from having the political appetite for anything of the sort. Tribe acknowledged as much, but probably understated the political headwinds to impeachment:

It will require serious commitment to constitutional principle, and courageous willingness to put devotion to the national interest above self-interest and party loyalty, for a Congress of the president’s own party to initiate an impeachment inquiry. It would be a terrible shame if only the mounting prospect of being voted out of office in November 2018 would sufficiently concentrate the minds of representatives and senators today.

But whether it is devotion to principle or hunger for political survival that puts the prospect of impeachment and removal on the table, the crucial thing is that the prospect now be taken seriously, that the machinery of removal be reactivated, and that the need to use it become the focus of political discourse going into 2018.

Thus far, the response to the Comey firing by Republicans in Congress has been muted at best, and the reason is obvious: the firing appears to have generated little in the way of anger or even concern on the part of Republican voters. On Friday, ABC News published results of a poll showing that 79 percent of Republicans approved Comey’s ouster and only 13 percent disapproved. This contrasted with disapproval by 78 percent of Democrats (vs. approval of 14 percent) and disapproval by 45 percent of Independents (with 35 percent approval.) Over all, Trump averaged a 41 percent job approval in the three days following Comey’s firing Tuesday, roughly steady with where he has been for most of his presidency.

Also on Friday,The Washington Post published  poll results showing that despite the various missteps and failures of the administration, support for Trump among Republicans had remained strong at 84% and also that Republicans were broadly supportive of his position in firing Comey. That 84% approval was, the Post headline said, “The one little number that–so far—is all the protection Donald Trump needs.” Moreover, if that support remains substantially intact, it is unlikely that the 2018 election would make impeachment feasible. To be sure, some Republicans may be endangered in states and districts where significant support from Independents, and even from a few Democrats, may be crucial. Still, even if the Republicans were to lose control of both houses, which seems unlikely, Democrats would be far from the 2/3 majority in the Senate required to convict Trump and remove him from office.

The future, of course, may bring dramatic events that could change the calculus, as it did in the case of Richard Nixon when, after the “smoking gun” tape had been revealed, senior Republican leaders visited Nixon and told him that impeachment was inevitable. One cannot know whether an equally dramatic event lies ahead in Trump’s future, but his capacity to generate self-inflicted wounds should not be underestimated. Nevertheless, unless and until some gripping event emerges, impeachment will probably remain a fantasy. Indeed, talk of impeachment may be counterproductive in that it will likely have little effect other than to further convince Trump supporters that complaints over Trump’s conduct are simply part of a plot to reverse the result of the 2016 election. On the other hand, without using “the i word” prematurely, Republicans on Capitol Hill should support thorough and rigorous investigations and refuse to be intimidated, by sour tweets or otherwise. That course is required for their moral, as well as electoral, survival.