Blog No. 162. Donald Trump and the “I” Word

The impeachment breezes that have been wafting through the air for months have recently grown a bit brisker. Tom Steyer, the billionaire hedge fund manager turned Democratic activist, has been promoting impeachment through a $20 million campaign of television ads. And, on November 15, several House Democrats introduced a resolution calling for the impeachment of the President. Yet it would be a mistake to think that impeachment is going to happen any time soon. Suzanne Garment, a contributing editor of RINOcracy.com, made that point in an October 21 piece for NBC News. Garment explained in some detail why Trump’s situation was, so far at least, not Watergate and concluded:

With Trump, what we know right now is that, unless many and varied things break in the same direction, we’ll be getting three more years. So while Nixon may seem the easy analogy, the jury is still out. We’re not there yet. We’re not even almost almost there.

To that I would add a personal note. In 1973, I was working in the White House Counsel’s office, a position to which I had been recruited by Suzanne Garment’s late husband, Leonard. In Len’s memoir, Crazy Rhythm, he vividly described a meeting on November 2, 1973 when he and Fred Buzhardt and I met and compiled a list of the known problems confronting us—a staggering assortment going far beyond the matter of the Watergate break-in. The following day, Garment and Buzhardt flew to Key Biscayne to suggest to Nixon that he should consider a resignation. They met with Nixon’s Chief of Staff, Alexander Haig, but Nixon declined to see them and they returned to Washington to soldier on. (I left the White House at the end of the month, Garment remained on the staff but took on other duties and Buzhardt was superseded as Nixon’s chief Watergate counsel by James St. Clair.)

In hindsight, Garment, Buzhardt and I were wrong, or at least quite premature. Despite what we felt was a strong case for resignation, Nixon would survive in office for another nine months and resign only after disclosure of the “smoking gun” tape on which he was heard instructing Bob Haldeman to have the CIA ask the Justice Department to halt the Watergate investigation on national security grounds. But for the existence and disclosure of that tape–of which Garment, Buzhardt and I had no knowledge the previous November—Nixon might well have survived until the end of his term. The House would likely have impeached him, but the Senate might well have failed to convict (just as the Senate would many years later in the case of Bill Clinton).

Returning to the Trump situation, those who wish for a Trump impeachment have placed their hopes largely on the investigation by Special Counsel Robert Mueller. Those hopes have been heightened by a recent report that lawyers representing former National Security Adviser Mike Flynn are no longer co-operating with Trump’s lawyers. It is a reasonable inference that Flynn has “flipped” and agreed to provide testimony in exchange for lenience for Flynn and for his son, who has also been said to be potentially subject to charges. It is, however, a considerable leap to assume that Flynn’s testimony, whatever it might be, would be sufficiently damning to sustain an impeachment.

The underlying difficulty of impeachment lies in the fact that Republicans presently control both the House and in the Senate. That could be reversed if there is a Democratic wave in 2018, but Democratic control of the Senate seems unlikely, given that Democrats have more seats to defend than Republicans. As Newsweek pointed out, “Overall, 25 of the 35 seats up are held by Democrats, five of them in states Trump carried by double-digit percentages, while Hillary Clinton carried only one state (Nevada) and came close in only one other (Arizona) where Republican seats are up.” On the other hand, some observers, including Politico, have suggested that if Roy Moore should lose in Alabama, the Senate will be “in play” in 2018. Still, even if the Democrats gained control of the Senate by a narrow margin, they would have to attract significant Republican votes to gain the two-thirds required to convict.

Ideally, voting to impeach or to convict should not be done on a purely partisan basis but, given the country’s polarized state has become, it will be hard to escape a “tribal” approach to the issue. One small example of how entrenched Trump supporters may be was afforded by a CNN focus group. A video of the group shows Mark Lee, an Alabama small business owner of Jamaican background, proclaiming his faith in Trump in no uncertain terms: “If Jesus Christ gets down off the cross and tells me Trump is with Russia, I would tell him, ‘Hold on a second. I need to check with the president if it’s true.” If Mr. Lee would not take the word of Jesus Christ, it is doubtful that he would find Robert Mueller more persuasive. If Lee is not entirely representative of Trump supporters, he is probably not unique either.

What kind of evidence might the Mark Lees of the country find compelling? What would be the equivalent of the tape that brought down Richard Nixon? The first Article in the Democrats’ impeachment resolution relates to the firing of James Comey and Mueller is reportedly looking into that action. But the facts relating to that event appear to have been fairly well aired: even if Mueller were to conclude that the firing was an obstruction of justice, it would probably not change many hearts and minds. If Trump were to fire Mueller, that might be another matter. Preet Bharara, the highly respected U.S Attorney in Manhattan who was dismissed by Trump, has opined that firing Mueller would be grounds for impeachment. Perhaps. But Nixon, it may be remembered, survived for many months after firing Archibald Cox, the action that prompted the resignation of his Attorney General and Deputy Attorney General.

With respect to the Russian investigation itself, much has been spoken and written about “collusion,” but collusion is not a legal term and may or may not include conduct that is cognizable in court or an impeachment proceeding. And what has emerged so far smacks not so much of collusion as a clumsy and unseemly flirtation. Hypothetically, General Flynn might provide some substance if he were to testify that when he spoke with Russian Ambassador Kislyak, and the sanctions against Russia were discussed, he did so at the express direction of then President-elect Trump. That would be an arguable violation of the Logan Act, but probably not the stuff of impeachment without more. David Brooks, who has been skeptical of the scandal, did some hypothesizing on the NewsHour on November 24, “It could be Flynn could be there to say Trump did offer to get rid of the sanctions if they would help with the election. And that would be the conversation that really would turn this into a major political story.” Any such arrangement, of course, would have been made before the election and long before Flynn’s conversation with Kislyak in December 2016.

Another possibility is that sanctions relief, and Trump’s curious affection for Russia and Putin, can be related to Russian financial involvement in the Trump business empire. While Trump has denied any such involvement, the media that he regards as hostile and unfair has somehow never gotten around to asking him to explain the 2008 statement by Donald Jr.:

And in terms of high-end product influx into the US, Russians make up a pretty disproportionate cross-section of a lot of our assets; say in Dubai, and certainly with our project in SoHo and anywhere in New York. We see a lot of money pouring in from Russia. There’s indeed a lot of money coming for new-builds and resale reflecting a trend in the Russian economy and, of course, the weak dollar versus the ruble.

Russian involvement in the Trump business is one matter on which Trump’s tax returns might well shed light. It is not known whether Mueller has obtained or will obtain the returns, but some experts have opined that such access is likely. Back in September, an article in USNews confidently asserted:

It now appears likely special counsel Robert Mueller has crossed what President Donald Trump has said is a clear red line by gaining access to the president’s tax returns as part of a broadening investigation looking for links between Trump’s business interests, his presidential campaign and Russia.

In fact, it seems almost certain the FBI–special counsel investigation has its hands on the president’s tax returns.

Nevertheless, whether Mueller in fact has the Trump tax returns, as well as what they might show, remain matters of speculation. And impeachment cannot be based on speculation.

The other Articles in the Democrats’ impeachment resolution are not promising. Two of the Articles allege violations of the Emoluments clause based on business activities of the Trump Organization. Whatever technical merit the arguments might have, they are unlikely to gain wide support in the public or Congress. The two remaining Articles are based on Trump’s criticism of federal judges and the media. The arguments are fair grounds for political debate but have little substance in the context of impeachment. If the Democrats should win control of the House in 2018, and decide to seek impeachment, they will have to produce a far more compelling document to go forward.

Prior to the election, the opinion was expressed in these pages that Donald Trump was unfit for the Presidency, and Trump’s conduct in the first year of his administration has only fortified that opinion. Nevertheless, that generalized view, however well-grounded, is not a basis for impeachment, nor is there anything in the present record that would sustain such an action. Unless and until a solid basis appears, calls for impeachment are futile. They are, moreover, counterproductive because they will serve only to convince Trump supporters that any serious attempt at impeachment is simply a political attack. The wiser course is to remain calm and see what develops from the Mueller investigation (and the investigations being carried on in the House and Senate). In the meantime, however, Republicans should at least find the courage to oppose policies of the administration in foreign and domestic matters that are misguided or dangerous.