It’s an all but foregone conclusion that the House of Representatives will impeach Donald Trump, and it is almost as certain that the Senate will not convict him. For those who are convinced of the president’s venality, the latter prospect makes it imperative that the formal indictment in the House — the articles of impeachment — be detailed and all-encompassing.
The articles’ content, the exact way they focus the effort to hold Trump accountable, could possibly sway the eventual verdict, as senators ponder individually the moral choice between party loyalty and the rule of law. As important, the way the charges are conceived and written will affect how history remembers this “grand inquest of the nation.” Was it merely misbegotten politics or a legitimate attempt to adjudicate incontrovertible high crimes and misdemeanors?
The House proceedings against President Trump represent only the fourth impeachment in American history. In two of the others, the prosecution of the president was flawed or tainted to begin with. In the third, the Nixon non-impeachment impeachment (his resignation truncated the process), the House presented a masterful set of articles — succinct, persuasive, accessible and exacting. That experience not only justified the national trauma of the process. It serves as the model for a proper and successful proceeding today.
In America’s first attempt to remove a president, in 1868, Andrew Johnson’s opponents in Congress accused him of dismissing his secretary of War, Edwin Stanton, in violation of a law cooked up specifically to deny him that privilege. That law, the Tenure of Office Act, was so cockeyed it was repealed in 1887, and the U.S. Supreme Court declared it an unconstitutional breach of executive power in 1926.
In other words, although there was a decent case for impeaching Johnson, the House “indictment” mostly concentrated on mistakenly applied, narrow legal technicalities instead of a sweeping and compelling rationale for the extraordinary act of removing the president from office. The Senate failed to convict Johnson by one vote, and history sees the whole proceeding as a travesty.
In the 1990s, Bill Clinton without question perjured himself about a highly inappropriate sexual relationship with a White House intern. For most observers, then and now, his lies didn’t rise to the level of high crimes and misdemeanors.
By contrast, the sober, fair and exhaustive proceedings against Richard Nixon in 1974 featured overwhelming evidence of substantial “high crimes” that fell squarely within the Constitution’s boundaries. In recommending three articles of impeachment to the full House, the final report of the House Judiciary Committee presented a compelling explanation of Nixon’s culpability that left no doubt about what the outcome would have been and should have been, had Nixon not resigned: conviction in the Senate.
All three of the overarching charges against Nixon apply equally to President Trump. They can be summarized as obstruction of justice, abuse of power and defiance of legitimate subpoenas. The challenge now is to reduce all that we have learned from the Robert S. Mueller III investigation (and the resulting court cases), the congressional investigations, the hush money payments, the emoluments infractions and the Ukraine scandal into a comprehensible, accurate and significant litany of particulars that justify those charges. To define the essence of such widespread allegations of corruption is a daunting task.
Given the seriousness of the Ukraine allegations, which go to the sanctity of U.S. elections, the heart of our national security and the support due hard-pressed allies, the House should probably devise a separate fourth article of impeachment under the heading “Violation of the Oath of Office.” By mixing domestic politics with foreign policy for his own gain, as multiple witnesses have testified, Trump failed to “preserve, protect and defend the Constitution” and did not “take care that the laws be faithfully executed.”
Because it will summarize the strongest and best understood of the charges against Trump, Article 4 might take center stage in the House Judiciary Committee hearings, the debate in the full House and at the Senate trial. Its passage alone in the Senate would remove Trump from office.
All the charges, however, must also be debated fully and voted upon solemnly. An impeachment based on a single article, however outrageous the violation, could be seen as too narrow a rationale for presidential removal. And the more minimal and narrow the articles, the more quickly and easily the Republican Senate, and history, can dismiss them.
For all its shoddiness. the impeachment proceeding against Andrew Johnson provides several lessons worth remembering. Instead of harping on the technicalities of the trifling Tenure of Office Act, the impeachment might have focused on the real case for his removal: Johnson was systematically undermining Reconstruction. He had vetoed the Civil Rights Act of 1866 and the 14th Amendment to the Constitution (Congress overrode both vetoes), and he had sought to return the freedmen to a semblance of slavery.
Johnson’s opposition, the Radical Republicans, did make an effort to encompass the overarching enormity of what they understood to be Johnson’s transgressions. The 11th article of impeachment — known as the omnibus article — was a broad-gauged, sweeping statement of the president’s alleged abuses, framed to capture the larger issue of a president denying the very validity of Congressional legislation and denying that he had any obligation to honor its dictates.
The leader of the Radicals, Pennsylvania Rep. Thaddeus Stevens, who was a House manager in Johnson’s Senate trial, understood the stakes. He scoffed at the previous articles as insignificant and technical. He called the omnibus article “the gist and vital portion of this whole prosecution.” But his last-ditch effort didn’t persuade the Senate.
Nancy Pelosi’s House of Representatives might want to consider adding a more solidly based omnibus article to the charges against Trump. A fifth article that defines the totality of the case against the president might not ultimately win over the two-thirds majority of the Senate necessary to remove him. But it could memorably capture the entirety of the case against this president, and stand as the enduring judgment of history.
James Reston Jr.’s latest book is “The Impeachment Diary: Eyewitness to the Removal of a President.”