John Yoo: Impeachment effort won't remove Trump from office – Is it worth the trouble?

Fox News Opinions 1 month ago
Trump Organization executive vice president Donald Trump Jr. reacts to first public impeachment testimony.

No American president has ever been removed from office by Congress. That is almost certain to remain the case at the conclusion of impeachment proceedings against President Trump that began public hearings Wednesday in the House of Representatives.

President Richard Nixon would likely have been removed in the Watergate scandal if he was impeached by the House and went on trial in the Senate, but he resigned in 1974 to avoid that.

Only two presidents have been impeached by the House – Andrew Johnson in 1868 and Bill Clinton in 1998, but both were acquitted when they went on trial in the Senate. At this time, this looks to be the likely outcome of impeachment proceedings against Trump.

If Trump’s impeachment ends without removal by the Senate – following the pattern of Johnson and Clinton – Democrats could be blamed for dragging the nation through a futile ordeal to remove Trump and then lose seats in the 2020 elections – as Republicans did after failing to convict Clinton.

In the televised impeachment hearings that began in the House Intelligence Committee Wednesday, we saw two distinguished and long-serving U.S. diplomats – acting Ambassador to Ukraine William Taylor and Deputy Assistant Secretary of State George Kent – carefully and unemotionally describe what they witnessed.

We saw a few minor squabbles between Intelligence Committee Chairman Adam Schiff, D-Calif., and Republican committee members who questioned his exclusion of their witnesses and lines of questioning.

But overall the hearings were relatively monotonous and made little progress on substance.

Few people will have changed their minds after watching all six hours of Wednesday’s testimony.

The facts remain the same.

On July 25, President Trump made a phone call to Ukrainian President Volodymyr Zelensky. In the course of the conversation, Trump asked for “a favor,” according to a rough transcript released by the White House.

The favor? That Zelensky investigate why Ukrainian prosecutors had not investigated the appointment of the unqualified Hunter Biden (son of then-Vice President Joe Biden) to a cushy spot on the board of the Burisma natural gas firm – reportedly at a salary of about $50,000 per month.

The Trump White House temporarily delayed nearly $400 million in U.S. foreign and military aid to Ukraine until the public announcement of the investigations. But the Ukrainians never announced or conducted such investigations, and the White House eventually released the funds. As a result, Trump provided far more effective assistance for Ukraine’s struggle against Russian aggression than the administration of President Barack Obama ever did.

Most of this story is already widely known, thanks to Democratic legislative malpractice. House Intelligence Committee Democrats had conducted depositions of Kent, Taylor and others behind closed doors, with little participation by the minority Republicans.

But Democrats then released their witnesses’ written testimony, after earlier leaking the high points of the questioning. With no new testimony, and all civil servants doing their best to be bland and nonpartisan (which, after all, is their job), the hearings Wednesday primarily only repeated what the news media had already published and broadcast.

The Wednesday televised hearing also provided few critical facts because of the White House’s decision to release the rough transcript of the July 25 Trump-Zelensky call, which reduced much of the public testimony to providing color and context to facts already known.

Take, for example, the “news” that Taylor had learned from staff of an overheard July 26 phone call between Trump and America’s ambassador to the European Union, Gordon Sondland. Trump allegedly asked Sondland about the “investigations,” and Sondland reportedly replied that the Ukrainians were “ready to move forward.”

When the aide asked Sondland what Trump thought of Ukraine, the ambassador reportedly replied that Trump cares “more about the investigations of Biden, which Giuliani was pressing for,” referring to Trump lawyer Rudy Giuliani. But this should come as no surprise.

The July 25 transcript already made clear that Trump cared enough about the investigations to raise the issue directly with President Zelensky.

And the already unreliable Sondland, who has had to correct his testimony and may be in the habit of exaggerating his role, added another level of hearsay to the tale. This made front-page headlines.

Unfortunately, the public hearings and the news coverage have focused on these marginal developments and have ignored the central question: do these facts justify President Trump’s impeachment and removal from office?

Impeachment is a two-step process.

First the House starts the process by impeaching the president on a charge of treason, bribery, or other “high Crimes” or “misdemeanors.” This is akin to bringing a criminal charge.

If a president is impeached – as happened with Andrew Johnson and Bill Clinton – the Constitution says the Senate has “the sole power to try” the case. The constitutional text underscores that the Senate plays a judicial role by including the word “try,” requiring the chief justice of the United States to preside at the president’s trial, and referring to “the Party convicted” if the Senate decides to remove the president from office.

Removal requires an affirmative vote by two-thirds of the senators present. If all 100 senators vote, that amounts to 67 votes needed to remove a president from office. Democrats and independents aligned with them control 47 seats in the Senate – meaning they would need the support of at least 20 Republican senators to remove Trump from office.

It seems clear that the type of conduct at issue here involving President Trump and Ukraine could supply the grounds for impeachment. The framers of the Constitution openly worried about a president who might use his foreign affairs powers for personal or political gain.

The framers had seen France’s King Louis XIV pay Britain’s King Charles II to remain neutral in the European wars. They believed that “high crimes and misdemeanors” – the grounds for impeachment and removal of a president – included abuse of the executive’s control over foreign policy.

But our nation’s founders also believed that impeachment should only come as a last resort. They expected that the American people would hold a president accountable for any abuses of power at the ballot box.

“At the end of four years, [the president] may be turned out of his office,” Gov. Edmund Randolph said during the 1788 Virginia convention called to ratify the Constitution. “If he misbehaves he may be impeached, and in this case he will never be reelected.”

Defenders of the Constitution designed impeachment to be a rare event, especially by making the requirement for removal a two-thirds vote of the Senate for treason, bribery, or other high crimes or misdemeanors, rather than “maladministration,” in their words.

The Federalists worried that the president otherwise would become too dependent on a Congress eager to use impeachment to fight political and partisan disputes.

It is on this point where the House impeachment hearings have proven so disappointing. House Democrats have not shown why a quid pro quo that never succeeded (assuming the facts in the worst light for the White House) and that involved a relatively small country at the periphery of American security interests should justify removal of a president, the undoing of the results of the 2016 election, and the preemption of the people’s verdict on Trump in 2020.


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