Week of August 24, 2018

Trump, Impeachment, and Media Hype


The news that Trump’s lawyer has plead guilty to campaign violations has created a media storm and reopened questions about impeaching Trump or unseating him another way.

However, there are two questions that impact on the case: did Trump violate campaign contribution laws and even if he did, can he even be removed quickly.

The answer to both of those is no. There are serious questions about the illegality of what he did. Even so, there little chance of a Trump impeachment and conviction.

Actually, the chances of Trump being reelected in 2020 are greater than of his being impeached and convicted.

According to former Federal Elections Committee chairman Bradley Smith, there is nothing illegal to paying off a mistress, even if Trump’s lawyer pleads guilty to doing it. In the Washington Post, Smith said, “regardless of what Cohen agreed to in a plea bargain, hush-money payments to mistresses are not really campaign expenditures…The problem is that almost anything a candidate does can be interpreted as intended to “influence an election,” from buying a good watch to make sure he gets to places on time, to getting a massage so that he feels fit for the campaign trail, to buying a new suit so that he looks good on a debate stage. Yet having campaign donors pay for personal luxuries — such as expensive watches, massages and Brooks Brothers suits — seems more like bribery than funding campaign speech.”

“That’s why another part of the statute defines “personal use” as any expenditure “used to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate’s election campaign.” These may not be paid with campaign funds, even though the candidate might benefit from the expenditure.”

“But let’s go in that direction. Suppose Trump had used campaign funds to pay off these women. Does anyone much doubt that many of the same people now after Trump for using corporate funds, and not reporting them as campaign expenditures, would then be claiming that Trump had illegally diverted campaign funds to “personal use”? Or that federal prosecutors would not have sought a guilty plea from Cohen on that count? And that gets us to a troubling nub of campaign finance laws: Too often, you can get your target coming or going.”

Given this, it is questionable if Trump actually violated FEC regulations. And, if he did, he joins other presidents, including Obama, Bush, and Clinton – whose violations led to fines, not criminal charges.

In the end, the calls for impeachment are political and are coming from the same Democrats who called for Trump’s impeachment even before he took the oath of office.

However, pushing for impeachment is politically risky. The Republican lost seats in Congress when they impeached Clinton and the Democratic leadership is heeding that history. Democratic Congressional Minority leader Nancy Pelosi has said that impeachment is not a priority. Clearly, the subject is one they prefer to ignore until after the mid term elections and after gaining a majority in the House (if they do win a majority).

Since Trump can’t be indicted and tried while serving as president, it comes down to finding another way to unseat him. Here are the most common options.


The most frequently mentioned method for removing Trump is impeachment. However, in the 242 years of the United States, it has never been successful. Two presidents have been impeached, but neither of them were convicted and removed from office. The first was Andrew Johnson 150 years ago (Johnson was the vice president for Lincoln and took office when Lincoln was assassinated in 1865). The second impeachment was of Bill Clinton 22 years ago.

The standard for impeachment is politically high. The Constitution calls for impeachment for, “Treason, bribery, or other high crimes and misdemeanors.”

The problem is that at this time (despite the media talk about the Cohen guilty plea), there is no evidence of Trump committing treason, bribery, or other high crimes and misdemeanors.

Some have argued that impeachment is okay in order to remove a president that is a threat to the current government, the United States, or is doing something that they feel is immoral. These could include firing the Attorney General or Special Prosecutor.

The problem with this rational is that these actions are legal and constitutional for the president to do. And, any attempt to “criminalize” such actions would set a dangerous precedent for the future. Even liberal law professors agree that this is a dangerous route to take.

If clear documentary evidence of Trump committing crimes came forth or the Democrats took over the House of Representatives in the November mid-term elections, they could pass articles of impeachment because it only requires a simple majority.

The problem is the US Senate, where the trial takes place, and which requires 67 votes to convict. That is a high hurdle given the fact that Trump remains very popular in many parts of the country. In fact, a Rasmussen poll released on Friday showed that 50% of voters don’t think the Cohen guilty plea will impact Trump. They also reject impeachment as a strategy.

Baring clear criminal behavior, Trump would have enough support to survive such a challenge.

There is also the political cost of an impeachment, as was seen by Republicans in the mid-term elections in 1998. Voters were unhappy with a Congress involved in impeachment rather than solving the problems of the country. And, they punished the GOP for its action.

Consequently, don’t expect the Congress to opt for impeachment unless Democrats have a clear case and a chance to win conviction.

Peaceful transition through resignation

This could be called the “Nixon Option.” Once clear evidence came out that Nixon had tried to obstruct the investigation into Watergate, Nixon’s support collapsed, and senior GOP congressmen and senators went to the White House and asked Nixon to resign. They argued that staying in office would damage the Republican Party in the upcoming elections.

Nixon did resign. However, the GOP suffered one of its worst election cycles in 1974 anyway.

This, however, is the most peaceful type of transition and would do the least damage to the US.

Unless Trump gets tired of fighting the Democratic opposition, the chances that he resigns are low. Also note that unlike the case with Watergate, no Republican Congressmen or Senators have asked for Trump to resign.

Although there are Republican leaders who would prefer Trump to be out of office, Trump’s voter base is still strong and anyone in the GOP trying to force Trump out of office now would most likely damage their own chances in the next election. In fact, the last thing any Trump opponents want is for the mid-term election to become a referendum on impeaching Trump because Trump is likely to prevail.

25th Amendment of the Constitution

Some prefer this option as it can accomplished quickly and avoids the months of rancor of an impeachment and trial.

The 25th Amendment, proposed by Congress and ratified by the states in the aftermath of the assassination of President John F. Kennedy, provides the procedures for replacing the president or vice president in the event of death, removal, resignation, or incapacitation.  The Watergate scandal of the 1970s saw the application of these procedures, first when Gerald Ford replaced Spiro Agnew as vice president. Then he replaced Richard Nixon as president after Watergate. Then Ford appointed Nelson Rockefeller to fill the resulting vacancy as vice president.

Section 4 is the section that is most applicable for the current situation. It states, “Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.”

In other words, if Vice President Pence and the majority of the president’s cabinet decide that Trump is unable to discharge the position of president, the Vice President becomes acting president.

Of course, in this case, Vice President Pence is the key player. If Pence doesn’t feel that Trump is incapacitated, this option will not work. If he does, the transfer of power could just take hours.

While the 25th Amendment allows for a quick transfer of power, the aftershocks could rip the nation apart because it also allows the president to challenge any charges of incapacity. It says, “Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.”

In other words, if Pence says Trump is unable to be president, Trump can challenge it. If the Vice President and majority of the cabinet continue to say the President is unable to carry out the office of president, it goes to Congress to determine the fitness of Trump. It would take a 2/3 vote in both the House and Senate to remove Trump – which would be harder than impeaching Trump.

Needless to say, the 21 days that Congress has to determine the fitness of Trump would be a politically unstable time that could see civil unrest as pro-Trump and anti-Trump forces take to the streets in order to influence their congressmen and senators. And, no doubt, the losers of the vote would probably remain in the streets rioting.

This is not an option that would do the government or nation any good.

Quasi or extralegal methods

This is the most unlikely scenario. It assumes massive demonstrations against Trump similar to the Arab Spring or the Orange Revolution in the Ukraine.

The protests would have to be widespread, large, and receiving the tacit support of military and law enforcement. This would place the president in a position to either resign or flee the country.

Although there are segments of the population that are upset with Trump, there is not the level of opposition to Trump that would engender widespread protests.

In addition, there is no evidence that either the military or law enforcement is upset with Trump enough to tacitly support his illegal ouster.

While this may be the dream scenario of some revolutionaries, it is very unlikely.


The chances that Trump will leave office before 2020 are remote at this point in time.

Trump has a sizable degree of support and polls show that those people who voted for Trump are standing by him. Trump’s massive rally in West Virginia this week proves it. Politicians who ignore this are making a big mistake.

There is also the possibility of serious civil unrest if Trump is removed without serious criminal evidence.   In an interview with Sky News, the president’s lawyer and former Mayor of New York City, Rudy Giuliani, said Thursday “the American people would revolt” if President Donald Trump was impeached.

“You could only impeach [Trump] for political reasons, and the American people would revolt against that.”

Resignation and a peaceful transition are likely only if solid evidence against Trump exists and his political support has collapsed. Then he may resign to avoid impeachment as Nixon did.

In looking at the dynamics behind any ouster of Trump, one must look at where Trump’s support lies and where the opposition comes from. Trump is an outsider and his support comes from outside the Northeast and Pacific Coast. Polls show he remains strong there and voters still like his promise to fight Washington.

Meanwhile, it is Washington that is trying to oust Trump.

As long as voters in Middle America don’t like Washington and Washington doesn’t like Trump, he will keep the support to not only stay in office, but likely win reelection in 2020.