Even with evidence of ‘high crimes,’ impeaching Trump would probably fail

History shows it’s harder than it looks to remove a president from office.

Trump’s reported hush payments to women during the 2016 campaign: “It may be an impeachable offense if it goes to the question of the president procuring his office through corrupt means.” 

.. Democrats would investigate Trump’s retaliations against media sources that have reported news about him that he doesn’t like as abuses of “instruments of state power.”

.. three-quarters of self-identified Democratic voters in this month’s elections support impeachment

.. they may well be right that Trump’s actions — on several fronts — could clear the threshold of “high crimes and misdemeanors.” But no one should suffer illusions about the likely result of any impeachment attempts.

.. Being deemed unfit for office — the condition intended by the Founding Fathers to trigger impeachment in the House — has never been enough to get the Senate to remove a president.

History suggests that there wouldn’t be a successful conviction by two-thirds of senators without two other conditions in place:

  1. A chief executive must also be deeply unpopular. And
  2. booting him from office must seem more advantageous for the opposition in the next election than letting him remain there.

.. “High crimes and misdemeanors,” he says, “ought to be held to those offenses which are rather obviously wrong, whether ‘criminal,’ and which so seriously threaten the order of the political society as to make pestilent and dangerous the continuance in power of their perpetrator.”

Lawmakers laid a trap. In February 1867, they overrode Johnson’s veto of the Tenure of Office Act, which required the Senate’s consent for the president to fire and replace identified executive branch officers, including the secretary of war — at that time Edwin Stanton, a strong advocate of U.S. military occupation of the South. On Feb. 21, 1868, Johnson removed Stanton, who refused to leave his office even to go home or to Cabinet meetings.

.. if impeached, Johnson’s successor would have been Ohio’s Benjamin Wade — the Senate’s president pro tempore — who was, to put it mildly, unsuited for the presidency. (For years, he dared challengers to attack him in the Senate, having prominently placed two loaded pistols on his desk when he came into the chamber.)

Stormy Daniels: The Crime and the Cover-Up

When the mainstream media fawned over the Obama administration, I was glad to have the conservative media as an alternative because much of the criticism was pointed and thoughtful. But now that we have an administration I usually agree with on policy led by a president who is, at best, a deeply flawed man, I find the cable coverage almost completely useless. Much of the opposition to Trump is unhinged — though, having had some time to reflect on it, the natural impulse of Trump critics to conflate policy disagreements with personal revulsion over Trump’s character is, if not excusable, at least understandable. Even Trump fans (and there are many we’ve visited with in California) tend to temper their praise with grumbling over the president’s antics. Meanwhile, much of conservative media sounds eerily like the mainstream media during the administration of Bill Clinton, even as comparisons to that deeply flawed man have become the leitmotif of Trump apologia.

.. It is simply not a defense of Trump to argue that Clinton did worse. President Clinton, as Fox commentators were wont to remind viewers not so long ago, was not impeached over sexual improprieties. He was impeached over illegal and unethical actions taken to cover up sexual improprieties, the untimely revelation of which might have cost him the presidency. Parading out Juanita Broderick and Paula Jones as a reminder of how bad Clinton was, and how indifferent the media was to how bad Clinton was, does not improve Trump’s perilous position. In the mid-to-late Nineties, we on the right full-throatedly argued that Clinton was unfit for office not merely because of the tawdry behavior (though that certainly was relevant), but because of the fraudulent abuses undertaken to conceal the tawdry behavior, some of which involved actionable misconduct.

.. the lesson from Clinton’s impeachment that I tried to draw in Faithless Execution: The further removed misconduct is from the core responsibilities of the presidency, the less political support there will be for the president’s removal from office.

.. A lot of the commentary about Clifford is of the all-or-nothing variety: Staunch Trump critics believe her every word; staunch Trump defenders reject her in toto. In nearly 20 years as a prosecutor, dealing with countless witnesses of suspect character, I learned that things rarely work that way.

.. There appears to be no doubt at this point that: (a) Cohen paid Clifford $130,000 for her silence; (b) the payment came on the eve of an election that Trump appeared to have little chance of winning and won by the narrowest of margins, meaning disclosure would likely have been fatal; and (c) the agreement went to absurd lengths to obfuscate Trump’s involvement, including the use of pseudonyms for Trump (Dennis Denniston) and Clifford (Peggy Peterson) and the use of an obscure Delaware company (Essential Consultants LLC) as a vehicle to make the payment. Even though Cohen has risibly claimed that he paid Clifford on his own accord, with no involvement by his client (Trump) or the Trump organization, at least two Trump lawyers (Cohen and Jill Martin) have been involved in the energetic legal efforts to keep Clifford silent — efforts that President Trump has now formally joined.

.. it does not matter that one may not be a fan of the campaign-finance laws — they are the law, and as we’ve seen, they can be enforced by criminal prosecution. It does not matter that one may not be a fan of the special-counsel appointment of Robert Mueller — he is the prosecutor, and it is a commonplace for prosecutors, and especially quasi-independent prosecutors, to investigate crimes that are disconnected from the original rationale for the investigation (compare, e.g., Kenneth Starr’s shift from Whitewater to the Lewinsky scandal in the investigation of President Clinton).

Inside the FBI: Anger, worry, work — and fears of lasting damage

In the 109 years of the FBI’s existence, it has repeatedly come under fire for abuses of power, privacy or civil rights. From Red Scares to recording and threatening to expose the private conduct of Martin Luther King Jr. to benefiting from bulk surveillance in the digital age, the FBI is accustomed to intense criticism.

What is so unusual about the current moment, say current and former law enforcement officials, is the source of the attacks.

The bureau is under fire not from those on the left but rather conservatives who have long been the agency’s biggest supporters, as well as the president who handpicked the FBI’s leader.

.. Wray’s defenders say there is a more strategic reason for the new director’s approach — by relying on long-standing law enforcement policies and procedures, he believes the FBI can navigate through the current political storms and get back to a position of widespread trust across the political spectrum, according to people familiar with his thinking.

.. “Following established process is important,” one person said. “Process can protect us.”

.. Comey’s firing shocked the FBI’s workforce. In the aftermath, many employees posted pictures of him at their desks or other workspaces.

.. Others express doubts about emulating Mueller’s detached approach, worried that Wray’s calculation not to publicly spar with the president may lead to a gradual erosion of the bureau’s reputation and clout.

.. On Friday, over Wray’s objection, Trump authorized the release of the Nunes memo and declared, “A lot of people should be ashamed of themselves and much worse than that.’’

.. He has called his own attorney general “beleaguered” and claimed the bureau’s reputation was “in tatters.”

.. Sen. Ron Johnson (R-Wis.) said on Fox News there was “evidence of corruption — more than bias but corruption — at the highest levels of the FBI,” and pointed to texts between two key officials who were once assigned to both the Clinton and Trump probes suggesting a “secret society” at the FBI. Those messages about a “secret society” are now widely seen to be a joke, but that has not diminished Republicans’ fervor

.. it conducts criminal investigations independently and without regard to the will of the chief executive. Trump has defied that norm. He asked Comey for a vow of loyalty, then inquired with Andrew McCabe, who replaced Comey after Trump fired him, for whom he voted.

.. The memo itself, though, doesn’t prove the case. It doesn’t have the kind of evidence in it that you would need to see to say that there was an abuse of that authority.”

..  While the president might now feel he wants the bureau under his firm control, Hosko said, he might regret that if a like-minded president took office and ordered investigations of Trump or his family.

.. Current and former law enforcement officials expect the struggle for control of the FBI to intensify.

.. “Republicans think this is just part of the war they are fighting.”

A Reckoning for the FBI

The House memo reveals disturbing facts about the misuse of FISA.

The memo confirms that the FBI and Justice Department on Oct. 21, 2016 obtained a FISA order to surveil Carter Page, an American citizen who was a relatively minor volunteer adviser to the Trump presidential campaign.

.. The memo adds that former FBI Deputy Director Andrew McCabe told the committee in December 2017 that “no surveillance warrant would have been sought” without the dossier.

.. But the FBI failed to tell the court that Mr. Steele and Fusion were the main sources for that Yahoo article. In essence the FBI was citing Mr. Steele to corroborate Mr. Steele.

.. The FBI retained Mr. Steele as a source, and in October 2016 he talked to Mother Jones magazine without authorization about the FBI investigation and his dossier alleging collusion between Russia and the Trump campaign. The FBI then fired Mr. Steele, but it never told the FISA judges about that either. Nor did it tell the court any of this as it sought three subsequent renewals of the order on Mr. Page.

.. Mr. Steele and Fusion then leaked the fact of the investigation to friendly reporters to try to defeat Mr. Trump before the election. And afterward they continued to leak all this to the press to cast doubt on the legitimacy of Mr. Trump’s victory.

.. No matter its motives, the FBI became a tool of anti-Trump political actors.

.. President Trump should declassify it promptly, along with Senator Chuck Grassley’s referral for criminal investigation of Mr. Steele.

.. note that Democrats aren’t challenging the core facts that the FBI used the dossier to gain a FISA order or the bureau’s lack of disclosure to the FISA judges.

.. As to the claim that the release tarnishes the FBI and FISA court, exposing abuses is the essence of accountability in a democracy.

.. The question of FISA abuse is independent of Mr. Mueller’s work

.. Mr. Trump would do well to knock off the tweets lambasting the Mueller probe

.. Mr. Trump and the White House should consider the remedy of radical transparency.