The Constitution is, actually, rather vague on what constitutes an impeachable offense. According to Donald Trump, you cannot impeach a president if the economy is doing well, but of course, Donald Trump has never read the Constitution, and probably cannot read. What the Constitution actually says about impeachment is that it is reserved for "treason, bribery or other high crimes and misdemeanors." The really problematic part is that word, "misdemeanors." Treason, we can define, and it isn't defined the way Trump defines it. Bribery is similarly clear. "High crimes" is most easily defined in terms of felonies. The biggest question mark is the misdemeanors part. Anyway, though, what do we have on Trump?
The clearest case against Trump is that he is committing emoluments violations. He is running a business from the Oval Office, and steering business from foreign governments to his own properties by his position as president. That's a good case for an emoluments violation. Michael Cohen named him as a conspirator to violate campaign finance law in a criminal way in the Stormy Daniels case. Add to that the "catch-and-kill" arrangement that Trump had with other stories that AMI kept bottled up, and you have a pattern, and Trump is at the center. The Mueller investigation didn't provide anything on Trump, personally, in terms of criminal conspiracy, or even the more loosely-defined term, "collusion." All of the collusion was done by his flunkies, which means you can't impeach him for it. The trickier thing was obstruction of justice. Mueller came to no conclusion, although William Barr, of course, said from the beginning, before even seeing the report, that the president was immune from any such charges, so Barr's opinion should be ignored. This is where we get into the distinction between the felony charge of obstruction of justice and that term in the Constitution, "misdemeanor." To charge someone under obstruction, you need "criminal intent," meaning there must be an underlying crime, and the problem for Mueller, and I called him on this, was that if he didn't have the goods on Trump engaging in criminal conspiracy, then finding an obstruction charge was a shaky thing.
Here's the thing, though. That's the US criminal code. "High crimes." What about "misdemeanors?" The term is less clearly codified. Consult your local lawyer, which I ain't, for what constitutes true misdemeanors at any given level of government, but at the federal level, the term is weird because it is usually a state/local thing.
So, if not the federal crime of "obstruction of justice," what about attempted obstruction of justice? Sideshow Bob may have complained about charges of "attempted murder" because there is no Nobel for "attempted chemistry," but in the federal code, there really isn't a charge for attempted obstruction. Still... Remember how Trump escaped the charge, under Mueller's report, for the McGahn matter. He told McGahn to fire Mueller, and McGahn didn't. Had McGahn followed Trump's orders, that would have been obstruction, according to Mueller. Under the federal code, that's a question mark, and for question marks, give it to the defendant, generally, although I don't like the idea of "give it to the defendant" in a matter like this when "give it to the defendant" means leave the most corrupt and dishonest person in history in the most powerful position in the world. Given the phrasing in the Constitution, though, the lower standard gives Congress a pretty clear way to say no dice, so to speak, to the guy who was too stupid to make money with a casino. Trump attempted to obstruct justice, and just because he failed, that may clear him in terms of criminal law, but in terms of the misdemeanors part of Article II Section 4, that's really not someone who is fit to hold office. Add that to firing Comey, dangling pardons, coordinating with Manafort during Manafort's proffer agreement, and while you may not be able to meet the criminal conviction standard of obstruction, the extent of corrupt actions Trump took, by any abstract ethical standard, is staggering.
Next, tax fraud. The real reason Congress needs his tax returns is that anyone with a brain is 99.9999999999999999999999999999999999999999999999% certain that Trump is currently committing tax fraud, while also hiding other illegal activities in his taxes. The statute of limitations is up on the money he illegally funneled from his father and hid from the IRS, but anyone who thinks he stopped committing tax fraud is as stupid as the people who enrolled in Trump University, which brings me to...
Fraud is a crime. Trump settled in civil court for damages done to those taken in by his con with Trump University, but fraud is a crime, and Trump University is as clear a case of fraud as you will ever see in a politician. But it isn't the only one. The Trump Foundation has already been shut down because it, too, was fraud. And they were linked. Trump actually used donations made to his fraudulent charity, the Trump Foundation, to make an illegal campaign contribution to Pam Bondi, then Florida AG, to call off an investigation into the fraud that was the Trump University. Fraud upon fraud, with a dollop of illegal campaign contributions on top. When I say that Donald J. Trump is the most crooked politician in American history by far, this is not hyperbole. It isn't a close contest. Nixon, Harding, Long, Tweed... Take your pick. None of them can even come close to the extent and totality of Trump's corruption. Why? Because those corrupt politicians were politicians first, and crooks second. Trump is a crook first, and a politician second. Crook is his vocation. Politics? Merely his avocation.
Oh, and he uses an unsecured personal cell phone, after basing half of his campaign in 2016 on getting the rubes to chant, "lock her up!" because Clinton used a personal email account as Sec. State. Is that actually impeachable? No, but if stupidity and hypocrisy were, then throw his lying ass to the curb.
Point being, there is a lot here worthy of impeachment, and there has never been a politician more unfit for office than Donald J. Trump.
In a previous post, I made reference to the dramatic concept of Chekhov's gun. This is the principle that an element introduced to the audience must be used, or it is a narrative cheat. Impeachment, if it cannot be used, ever, is the constitutional equivalent of Chekhov's gun, and if we have reached the point at which impeachment is Chekhov's gun, then our constitutional order is as broken as a narrative structure that violates Anton's dramatic admonition. Hence, 'mate in three.
House Democrats have three options. Begin impeachment proceedings and follow through. Begin impeachment proceedings and don't follow through. Don't begin impeachment proceedings. Let's walk through them.
If House Democrats actually impeach Trump, here's what happens. First, the Senate acquits him. I will state this with 100% certainty. Regardless of the charges, regardless of what new evidence Congress could get from the tools that supposedly come from opening impeachment proceedings (more on this shortly), Republicans hold the conviction votes under 50%, and I state this with absolute, 100% certainty. I am a statistician, and disinclined to state anything with absolute, 100% certainty, but this I state with absolute, 100% certainty.
OK, I'll walk that back slightly. If wild, random events happen to kill enough Republican senators in states with Democratic governors, along with Republican governors in ways that have them weirdly replaced with Democrats, then more weird, random events kill the Republican senators from those states such that the weirdly-placed Democratic governors can appoint a bunch of Democrats...
Then the rash of lightning strikes, car accidents and heart attacks that somehow gave the Democrats 2/3 of the Senate would allow them to convict Trump.
Anyone bettin' on this? No? Even our moron President, who couldn't make money running a casino, could figure out the right bet here.
So, what happens if the Democrats impeach and then the Senate acquits? Trump wins in 2020. Period. As I have written before, the odds are in his favor anyway, since most incumbent presidents are re-elected, and the economy isn't showing signs of collapsing, but this becomes 1998 redux. Nancy Pelosi knows this, which is why she doesn't want to impeach. You go from a high likelihood of Trump winning in 2020 to near-certainty.
What if the Democrats begin impeachment proceedings but don't follow through? This is the logic of some of the current rumblings. Supposedly, by initiating impeachment proceedings, courts will look more favorably on subpoenas, etc. Several problems. First, Trump will never, under any circumstances, obey any court orders with respect to subpoenas. All enforcement powers are held by... the executive branch. Remember Andrew Jackson! He'll dare Congress to impeach him for that. That's exactly where this goes. He wants to be impeached!
I'm going to type that again, just to make this clear. Donald J. Trump wants to be the third president in US history to be impeached. Andrew Johnson, Bill Clinton, Donald Trump. That is his goal. He wants this. Democrats are walking into Trump's open arms. Maybe they should listen to that Access Hollywood tape again before walking into his open arms.
Why does he want to be impeached, or even have impeachment proceedings? See previous scenario. The impeachment proceedings themselves will still create the 2020 campaign dynamic he wants. We're back to the previous scenario, and Trump hands over zero information.
And if the Democrats don't impeach? Then essentially, the presidency is a branch above the law. A unitary executive, bordering on monarch with no checks or balances. And Trump still probably wins in 2020. By virtue of not being used, impeachment becomes a nonexistent process, and the executive becomes enshrined as an unchecked position informally.
That's democratic backsliding. Levitsky & Ziblatt territory. So, there's the trap. Democrats have three options, and none of them preserve the constitutional order. That's what I mean when I say, 'mate in three. We are sliding. Backwards, and there's nothing to give us any traction. Impeachment is simply not a tool that is any use, and if it isn't any use, then there aren't any processes.
Why not? Well, Levitsky & Ziblatt. Ideological collusion, by the Republican Party. They would rather reduce the corporate tax rate and install judges like Kavanaugh and Gorsuch than preserve anything like a small-d democratic order.
As I have written before, one of the most critical elements of democracy is that participants need to be willing to lose, referencing Loser's Consent, by Anderson et al. If one party doesn't consent to lose, and decides that it will tolerate any level of corruption to avoid losing, then that's it. 'Mate in three. The threshold for impeachment is 2/3 in the Senate, which would nearly always require bipartisan agreement. That means a party deciding that corruption on its own side no longer matters nullifies that portion of the Constitution.