There is a lot of buzz going around about an article that appears in the latest New Yorker Magazine. I started reading it last night (still trying to catch up with all the magazines and TV DVR stuff), and have captured the online article to make it available here for those of you who may not be able to find it. It is worth your time: (it is a long one)
MAY 8, 2017 ISSUE
HOW TRUMP COULD GET FIRED
The Constitution offers two main paths for removing a President from office. How feasible are they?
By Evan Osnos
Hours after Donald Trump's Inauguration, a post appeared on the official White House petitions page, demanding that he release his tax returns. In only a few days, it gathered more signatures than any previous White House petition. The success of the Women's March had shown that themed protests could both mobilize huge numbers of people and hit a nerve with the President. On Easter weekend, roughly a hundred and twenty thousand people protested in two hundred cities, calling for him to release his tax returns and sell his businesses. On Capitol Hill, protesters chanted "Impeach Forty-five!" In West Palm Beach, a motorcade ferrying him from the Trump International Golf Club to Mar-a-Lago had to take a circuitous route to avoid demonstrators. The White House does all it can to keep the President away from protests, but the next day Trump tweeted, "Someone should look into who paid for the small organized rallies yesterday. The election is over!"
On Tax Day itself, Trump travelled to Kenosha, Wisconsin, where he would be among his supporters again, giving a speech at Snap-on, a manufacturer of high-end power tools and other gear. Wisconsin has emerged as one of Trump's favorite states. He is the first Republican Presidential candidate to win there since 1984. He included the state in a post-election "thank-you tour." Another visit was planned for shortly after the Inauguration, but it was cancelled once it became clear that it would attract protests.
By this point in George W. Bush's term, Bush had travelled to twenty-three states and a foreign country. Trump has visited just nine states and has never stayed the night. He inhabits a closed world that one adviser recently described to me as "Fortress Trump." Rarely venturing beyond the White House and Mar-a-Lago, he measures his fortunes through reports from friends, staff, and a feast of television coverage of himself. Media is Trump's "drug of choice," Sam Nunberg, an adviser on his campaign, told me recently. "He doesn't drink. He doesn't do drugs. His drug is himself."
Trump's Tax Day itinerary enabled him to avoid the exposure of a motorcade; instead, he flew on Marine One directly to Snap-on's headquarters. Several hundred protesters were outside chanting and holding signs. But the event's organizers had created a wall of tractor-trailers around the spot where Trump would land, blocking protesters from seeing Trump and him from seeing them.
Snap-on's headquarters, a gleaming expanse of stainless steel, chrome, and enamel, provided a fine backdrop for muscular American manufacturing, though in fact the firm closed its Kenosha factory more than a decade ago. Nick Pinchuk, the C.E.O., led Trump past displays of Snap-on products, showing him a car hooked up to state-of-the-art diagnostic equipment ("It's a different world!" Trump mused), and a table of Snap-on souvenirs, including small, colorful metal boxes that Pinchuk said some customers buy to hold ashes after a cremation. "That's kind of depressing," Trump said.
An auditorium was packed with local dignitaries and Snap-on employees. As "Hail to the Chief" played on the sound system, Trump stepped onto the stage. He stood in front of a sculpture of an American flag rippling in the wind, made from hundreds of Snap-on wrenches. Behind him was a banner: "buy american—hire american." For a moment, the President, wearing a red tie, leaning on the lectern, looked as if he were back on the campaign trail. "These are great, great people," he began. "And these are real workers. I love the workers."
"We don't have a level playing field," he said. It was a treasured campaign line, to which he now added a vow of imminent progress: "You're gonna have one very soon." After Republicans abandoned their first effort to enact health-care reform, and courts blocked two executive orders designed to curb immigration from predominantly Muslim countries, he was determined to dispel any sense that his Administration had been weakened. "Our tax reform and tax plan is coming along very well," he assured the crowd. "It's going to be out very soon. We're working on health care and we're going to get that done, too."
Trump's approval rating is forty per cent—the lowest of any newly elected President since Gallup started measuring it. Even before Trump entered the White House, the F.B.I. and four congressional committees were investigating potential collusion between his associates and the Russian government. Since then, Trump's daughter Ivanka and her husband, Jared Kushner, have become senior White House officials, prompting intense criticism over potential conflicts of interest involving their private businesses. Between October and March, the U.S. Office of Government Ethics received more than thirty-nine thousand public inquiries and complaints, an increase of five thousand per cent over the same period at the start of the Obama Administration. Nobody occupies the White House without criticism, but Trump is besieged by doubts of a different order, centering on the overt, specific, and, at times, bipartisan discussion of whether he will be engulfed by any one of myriad problems before he has completed even one term in office—and, if he is, how he might be removed.
When members of Congress returned to their home districts in March, outrage erupted at town-hall meetings, where constituents jeered Republican officials, chanting "Do your job!" and "Push back!" The former South Carolina governor Mark Sanford, who is now a Republican congressman, told me that he'd held eight town halls in his district. Trump won South Carolina by nearly fifteen points, so Sanford was surprised to hear people calling for him to be impeached. "I'd never heard that before in different public interactions with people in the wake of a new President being elected," he told me. "Even when you heard it with the Tea Party crowd, with Obama, it was later in the game. It didn't start out right away."
Trump's critics are actively exploring the path to impeachment or the invocation of the Twenty-fifth Amendment, which allows for the replacement of a President who is judged to be mentally unfit. During the past few months, I interviewed several dozen people about the prospects of cutting short Trump's Presidency. I spoke to his friends and advisers; to lawmakers and attorneys who have conducted impeachments; to physicians and historians; and to current members of the Senate, the House, and the intelligence services. By any normal accounting, the chance of a Presidency ending ahead of schedule is remote. In two hundred and twenty-eight years, only one President has resigned; two have been impeached, though neither was ultimately removed from office; eight have died. But nothing about Trump is normal. Although some of my sources maintained that laws and politics protect the President to a degree that his critics underestimate, others argued that he has already set in motion a process of his undoing. All agree that Trump is unlike his predecessors in ways that intensify his political, legal, and personal risks. He is the first President with no prior experience in government or the military, the first to retain ownership of a business empire, and the oldest person ever to assume the Presidency.
For Trump's allies, the depth of his unpopularity is an urgent cause for alarm. "You can't govern this country with a forty-per-cent approval rate. You just can't," Stephen Moore, a senior economist at the Heritage Foundation, who advised Trump during the campaign, told me. "Nobody in either party is going to bend over backwards for Trump if over half the country doesn't approve of him. That, to me, should be a big warning sign."
Trump has embraced strategies that normally boost popularity, such as military action. In April, some pundits were quick to applaud him for launching a cruise-missile attack on a Syrian airbase, and for threatening to attack North Korea. In interviews, Trump marvelled at the forces at his disposal, like a man wandering into undiscovered rooms of his house. ("It's so incredible. It's brilliant.") But the Syria attack only briefly reversed the slide in Trump's popularity; it remained at historic lows.
It is not a good sign for a beleaguered President when his party gets dragged down, too. From January to April, the number of Americans who had a favorable view of the Republican Party dropped seven points, to forty per cent, according to the Pew Research Center. I asked Jerry Taylor, the president of the Niskanen Center, a libertarian think tank, if he had ever seen so much skepticism so early in a Presidency. "No, nobody has," he said. "But we've never lived in a Third World banana republic. I don't mean that gratuitously. I mean the reality is he is governing as if he is the President of a Third World country: power is held by family and incompetent loyalists whose main calling card is the fact that Donald Trump can trust them, not whether they have any expertise." Very few Republicans in Congress have openly challenged Trump, but Taylor cautioned against interpreting that as committed support. "My guess is that there's only between fifty and a hundred Republican members of the House that are truly enthusiastic about Donald Trump as President," he said. "The balance sees him as somewhere between a deep and dangerous embarrassment and a threat to the Constitution."
The Administration's defiance of conventional standards of probity makes it acutely vulnerable to ethical scandal. The White House recently stopped releasing visitors' logs, limiting the public's ability to know who is meeting with the President and his staff. Trump has also issued secret waivers to ethics rules, so that political appointees can alter regulations that they previously lobbied to dismantle.
On the day that Trump spoke in Wisconsin, the Citizens for Responsibility and Ethics in Washington (crew), a prominent legal watchdog group, expanded a federal lawsuit that accuses Trump of violating the emoluments clause of the Constitution, a provision that restricts officeholders from receiving gifts and favors from foreign interests. The lawsuit cites the Trump International Hotel, half a mile from the White House, which foreign dignitaries have admitted frequenting as a way to curry favor with the President. ("Isn't it rude to come to his city and say, 'I am staying at your competitor'?" an Asian diplomat told the Washington Post in November.) The suit, first filed in January, in the Southern District of New York, is partly an effort to pry open the President's business records. Two plaintiffs involved in the hotel-and-restaurant industry joined the current case, arguing that Trump's businesses enjoy unfair advantages. "This isn't about politics; I'm a registered Republican," Jill Phaneuf, a plaintiff who books receptions and events for hotels, has said. "I joined this lawsuit because the President is taking business away from me."
crew is best known for its role in exposing the ethics violations of Tom DeLay, the former House Majority Leader, who, in 2006, resigned under indictment; and of Jack Abramoff, a lobbyist who went to prison for corruption the same year. Richard Painter, the vice-chair of crew's board, was formerly the chief ethics lawyer in George W. Bush's White House. He said that the Bush Administration maintained a policy of forbidding senior officials from retaining business interests that conflicted with their responsibilities, as some in Trump's White House have done. "We never had controversies over divestment," Painter told me. "They'd ask, 'What is Hank Paulson' "—who became Treasury Secretary in 2006—" 'going to do?' 'He's going to sell his Goldman Sachs stuff.' It was pretty cut and dried."
Meanwhile, nine months after the F.B.I. started investigating Russian interference in the campaign, it continues to examine potential links between Trump's associates and the Kremlin. Michael Flynn, who resigned as Trump's national-security adviser after acknowledging that he lied about his contact with Russia's Ambassador, is seeking immunity in exchange for speaking with federal investigators, raising the prospect that he could reveal other undisclosed contacts, or a broader conspiracy. Robert Kelner, Flynn's lawyer, wrote in a statement, "General Flynn certainly has a story to tell, and he very much wants to tell it, should the circumstances permit." The F.B.I. is also investigating Paul Manafort, Trump's former campaign chairman, after it was reported that Manafort received millions of dollars in cash payments from pro-Kremlin groups in Ukraine; and Carter Page, a foreign-policy adviser to the Trump campaign until last September. The F.B.I. has described Page, in court filings, as having connections to Russian agents.
The White House maintains that it was unaware of any links to the Kremlin, and the details of the investigations are classified. But select members of Congress who oversee the intelligence agencies have access to the findings. Recently, one of them, Senator Mark Warner, of Virginia, the ranking Democrat on the Intelligence Committee, privately told friends that he puts the odds at two to one against Trump completing a full term. (Warner's spokesperson said that the Senator was "not referring specifically to the Russia investigation, but rather the totality of challenges the President is currently facing.")
In a gesture intended to convey transparency, Jared Kushner and Trump's outside adviser Roger Stone have offered to speak to the Senate Intelligence Committee, but Newt Gingrich, a Trump campaign adviser who, when he was Speaker of the House, led the push for Bill Clinton's impeachment, believes it is a risky maneuver. "Anybody who goes in front of a congressional hearing for something that is being investigated by the F.B.I. is in immediate danger of perjury in the most innocent way, and I think that's really dangerous," Gingrich told me. "None of these guys understand that this is a war, and, if the left can put them in jail, they're going to put them in jail."
It's not clear how fully Trump apprehends the threats to his Presidency. Unlike previous Republican Administrations, Fortress Trump contains no party elder with the stature to check the President's decisions. "There is no one around him who has the ability to restrain any of his impulses, on any issue ever, for any reason," Steve Schmidt, a veteran Republican consultant, said, adding, "Where is the 'What the fuck' chorus?"
Trump's insulation from unwelcome information appears to be growing as his challenges mount. His longtime friend Christopher Ruddy, the C.E.O. of Newsmax Media, talked with him recently at Mar-a-Lago and at the White House. "He tends to not like a lot of negative feedback," Ruddy told me. Ruddy has noticed that some of Trump's associates are unwilling to give him news that will upset him. "I don't think he realizes how fully intimidating he is to many people, because he's such a large guy and he's so powerful," Ruddy went on. "I already sense that a lot of people don't want to give him bad news about things. I've already been approached by several people that'll say, 'He's got to hear this. Could you tell him?' "
There has been considerable speculation about Trump's physical and mental health, in part because few facts are known. During the campaign, his staff reported that he was six feet three inches tall and weighed two hundred and thirty-six pounds, which is considered overweight but not obese. His personal physician, Harold N. Bornstein, issued brief, celebratory statements—Trump's lab-test results were "astonishingly excellent"—mentioning little more than a daily dose of aspirin and a statin. Trump himself says that he is "not a big sleeper" ("I like three hours, four hours") and professes a fondness for steak and McDonald's. Other than golf, he considers exercise misguided, arguing that a person, like a battery, is born with a finite amount of energy.
Secrecy about a President's health has a rich history. "No one in the White House wants to emphasize the fact that the President might be too ill to carry out his responsibilities," Robert E. Gilbert, a political scientist at Northeastern University who studies Presidential health, told me. "They want everyone to think that the President is able to surmount any problem, no matter how serious, because they are thinking of reëlection, and they are thinking of the judgment of history." Although John F. Kennedy's tan was often described as a sign of vigor, it was caused by Addison's disease, an endocrine disorder, which Kennedy and his aides hid for decades, and which left him dependent on multiple medications.
Yet it is impossible to conceal the sheer physical strain of the Presidency. Studying the medical records of Presidents since Theodore Roosevelt, Michael Roizen, the chairman of the Cleveland Clinic's Wellness Institute, has concluded that "unrequited stress"—the absence of peers and friends—takes the greatest toll. Kennedy, who liked to compare his critics to hecklers at a bullfight, quoted a poem by the matador Domingo Ortega: "Only one is there who knows / And he's the man who fights the bull." A 2015 study, led by Anupam Jena, of Harvard Medical School, analyzed the life expectancy of five hundred and forty politicians in seventeen countries. Jena found that the lives of elected leaders are, on average, 2.7 years shorter than those of the runners-up.
The Framers of the Constitution planned ahead for the death of Presidents—hence, Vice-Presidents—but they failed to address an unnerving prospect: a President who is alive and very sick. Had Kennedy survived being shot, and been left comatose, there would have been no legal way to allow others to assume his powers. To fend off that possibility, the Twenty-fifth Amendment was added to the Constitution in February, 1967. Under Section 4, a President can be removed if he is judged to be "unable to discharge the powers and duties of his office." The assessment can be made either by the Vice-President and a majority of the Cabinet secretaries or by a congressionally appointed body, such as a panel of medical experts. If the President objects—a theoretical crisis that scholars call "contested removal"—Congress has three weeks to debate and decide the issue. A two-thirds majority in each chamber is required to remove the President. There is no appeal.
However, the definition of what would constitute an inability to discharge the duties of office was left deliberately vague. Senator Birch Bayh, of Indiana, and others who drafted the clause wanted to insure that the final decision was not left to doctors. The fate of a President, Bayh wrote later, is "really a political question" that should rest on the "professional judgment of the political circumstances existing at the time." The Twenty-fifth Amendment could therefore be employed in the case of a President who is not incapacitated but is considered mentally impaired.
A study by psychiatrists at Duke University, published in the Journal of Nervous and Mental Disease, in 2006, made a striking assertion: about half the Presidents they studied had suffered a mental illness at one time or another. The researchers examined biographies and medical histories of thirty-seven Presidents, from Washington to Nixon, and found that forty-nine per cent met the criteria for a psychiatric disorder—mostly depression, anxiety, and substance abuse—at some point in their lives. Ten Presidents, or about one in four, had symptoms "evident during presidential office, which in most cases probably impaired job performance."
Some of these illnesses had far-reaching historical consequences. Just before Franklin Pierce took office, in 1853, his son died in a train accident, and Pierce's Presidency was marked by the "dead weight of hopeless sorrow," according to his biographer Roy Franklin Nichols. Morose and often drunk, Pierce proved unable to defuse the tensions that precipitated the Civil War.
Years after the death of Lyndon B. Johnson, it emerged that, as the war in Vietnam intensified, he exhibited symptoms of profound paranoia, leading two of his assistants to secretly seek the advice of psychiatrists. Johnson imagined conspiracies involving the Times or the United Nations or élites whom he called "those Harvards." He took to carrying, in his jacket pocket, faulty statistics that he recited about "victory" and troop commitments in Vietnam. "For a long time, Johnson succeeded," one of the assistants wrote, "not in changing reality, but in deceiving much of the country and, perhaps, himself."
Only one Administration is known to have considered using the Twenty-fifth Amendment to remove a President. In 1987, at the age of seventy-six, Ronald Reagan was showing the strain of the Iran-Contra scandal. Aides observed that he was increasingly inattentive and inept. Howard H. Baker, Jr., a former senator who became Reagan's chief of staff in February, 1987, found the White House in disarray. "He seemed to be despondent but not depressed," Baker said later, of the President.
Baker assigned an aide named Jim Cannon to interview White House officials about the Administration's dysfunction, and Cannon learned that Reagan was not reading even short documents. "They said he wouldn't come over to work—all he wanted to do was watch movies and television at the residence," Cannon recalled, in "Landslide," a 1988 account of Reagan's second term, by Jane Mayer and Doyle McManus. One night, Baker summoned a small group of aides to his home. One of them, Thomas Griscom, told me recently that Cannon, who died in 2011, "floats this idea that maybe we'd invoke the Constitution." Baker was skeptical, but, the next day, he proposed a diagnostic process of sorts: they would observe the President's behavior at lunch.
In the event, Reagan was funny and alert, and Baker considered the debate closed. "We finish the lunch and Senator Baker says, 'You know, boys, I think we've all seen this President is fully capable of doing the job,' " Griscom said. They never raised the issue again. In 1993, four years after leaving office, Reagan received a diagnosis of Alzheimer's. His White House physicians said that they saw no symptoms during his Presidency. In 2015, researchers at Arizona State University published a study in the Journal of Alzheimer's Disease, in which they examined transcripts of news conferences in the course of Reagan's Presidency and discovered changes in his speech that are linked to the onset of dementia. Reagan had taken to repeating words and using "thing" in the place of specific nouns, but they could not prove that, while he was in office, his judgment and decision-making were affected.
Mental-health professionals have largely kept out of politics since 1964, when the magazine Fact asked psychiatrists if they thought Barry Goldwater was psychologically fit to be President. More than a thousand said that he wasn't, calling him "warped," "impulsive," and a "paranoid schizophrenic." Goldwater sued for libel, successfully, and, in 1973, the American Psychiatric Association added to its code of ethics the so-called "Goldwater rule," which forbade making a diagnosis without an in-person examination and without receiving permission to discuss the findings publicly. Professional associations for psychologists, social workers, and others followed suit. With regard to Trump, however, the rule has been broken repeatedly. More than fifty thousand mental-health professionals have signed a petition stating that Trump is "too seriously mentally ill to perform the duties of president and should be removed" under the Twenty-fifth Amendment.
Lance Dodes, a retired assistant clinical professor of psychiatry at Harvard Medical School, believes that, in this instance, the Goldwater rule is outweighed by another ethical commitment: a "duty to warn" others when he assesses that a person might harm them. Dodes told me, "Trump is going to face challenges from people who are not going to bend to his will. If you have a President who takes it as a personal attack on him, which he does, and flies into a paranoid rage, that's how you start a war."
Like many of his colleagues, Dodes speculates that Trump fits the description of someone with malignant narcissism, which is characterized by grandiosity, a need for admiration, sadism, and a tendency toward unrealistic fantasies. On February 13th, in a letter to the Times, Dodes and thirty-four other mental-health professionals wrote, "We fear that too much is at stake to be silent any longer." In response, Allen Frances, a professor emeritus at Duke University Medical College, who wrote the section on narcissistic personality disorder in the Diagnostic and Statistical Manual of Mental Disorders—IV, sought to discourage the public diagnoses. Frances wrote, "He may be a world-class narcissist, but this doesn't make him mentally ill, because he does not suffer from the distress and impairment required to diagnose mental disorder. . . . The antidote to a dystopic Trumpean dark age is political, not psychological."
To some mental-health professionals, the debate over diagnoses and the Goldwater rule distracts from a larger point. "This issue is not whether Donald Trump is mentally ill but whether he's dangerous," James Gilligan, a professor of psychiatry at New York University, told attendees at a recent public meeting at Yale School of Medicine on the topic of Trump's mental health. "He publicly boasts of violence and has threatened violence. He has urged followers to beat up protesters. He approves of torture. He has boasted of his ability to commit and get away with sexual assault," Gilligan said.
Bruce Blair, a research scholar at the Program on Science and Global Security, at Princeton, told me that if Trump were an officer in the Air Force, with any connection to nuclear weapons, he would need to pass the Personnel Reliability Program, which includes thirty-seven questions about financial history, emotional volatility, and physical health. (Question No. 28: Do you often lose your temper?) "There's no doubt in my mind that Trump would never pass muster," Blair, who was a ballistic-missile launch-control officer in the Army, told me. "Any of us that had our hands anywhere near nuclear weapons had to pass the system. If you were having any arguments, or were in financial trouble, that was a problem. For all we know, Trump is on the brink of that, but the President is exempt from everything."
In the months since Trump took office, several members of Congress have cited concern about his mental health as a reason to change the law. In early April, Representative Jamie Raskin, a Maryland Democrat and a professor of constitutional law at American University, and twenty co-sponsors introduced a bill that would expand the authority of medical personnel and former senior officials to assess the mental fitness of a President. The bill has no chance of coming up for a vote anytime soon, but its sponsors believe that they have a constitutional duty to convene a body to assess Trump's health. Representative Earl Blumenauer, of Oregon, introduced a similar bill, which would also give former Presidents and Vice-Presidents a voice in evaluating a President's mental stability. Of Trump, he said, "The serial repetition of proven falsehoods—Is this an act? Is this a tactic? Is he just wired weird? It raises the question in my mind about the nature of Presidential disability."
Over the years, the use, or misuse, of the Twenty-fifth Amendment has been irresistible to novelists and screenwriters, but political observers dismiss the idea. Jeff Greenfield, of CNN, has described the notion that Trump could be ousted on the basis of mental health as a "liberal fantasy." Not everyone agrees. Laurence Tribe, a professor of constitutional law at Harvard, told me, "I believe that invoking Section 4 of the Twenty-fifth Amendment is no fantasy but an entirely plausible tool—not immediately, but well before 2020." In Tribe's interpretation, the standard of the amendment is not "a medical or otherwise technical one but is one resting on a commonsense understanding of what it means for a President to be 'unable to discharge the powers and duties of his office'—an inability that can obviously be manifested by gross and pathological inattention or indifference to, or failure to understand, the limits of those powers or the mandatory nature of those duties."
As an example of "pathological inattention," Tribe noted that, on April 11th, days after North Korea launched a missile, Trump described an aircraft carrier, the U.S.S. Carl Vinson, as part of an "armada" advancing on North Korea, even though the ship was sailing away from North Korea at the time. Moreover, Tribe said, Trump's language borders on incapacity. Asked recently why he reversed a pledge to brand China a currency manipulator, Trump said, of President Xi Jinping, "No. 1, he's not, since my time. You know, very specific formula. You would think it's like generalities, it's not. They have—they've actually—their currency's gone up. So it's a very, very specific formula."
Lawrence C. Mohr, who became a White House physician in 1987 and remained in the job until 1993, came to believe that Presidential disability must be understood to encompass "very subtle manifestations" that might impair the President's capacity to do the job. A President should be evaluated for "alertness, cognitive function, judgment, appropriate behavior, the ability to choose among options and the ability to communicate clearly," Mohr told a researcher in 2010. "If any of these are impaired, it is my opinion that the powers of the President should be transferred to the Vice-President until the impairment resolves."
In practice, however, unless the President were unconscious, the public could see the use of the amendment as a constitutional coup. Measuring deterioration over time would be difficult in Trump's case, given that his "judgment" and "ability to communicate clearly" were, in the view of many Americans, impaired before he took office. For those reasons, Robert Gilbert, the Presidential-health specialist, told me, "If the statements get too strange, then the Vice-President might be able to do something. But if the President is just being himself—talking in the same way that he talked during the campaign—then the Vice-President and the Cabinet would find it very difficult."
The power of impeachment is a more promising tool for curtailing a defective Presidency. The Framers considered the ability to eject an executive so critical that they enshrined it in the Constitution even before they had agreed on the details of the office itself. On June 2, 1787, while the delegates to the Constitutional Convention, in Philadelphia, were still arguing whether the Presidency should consist of a committee or a single person, they adopted, without debate, the right to impeach for "malpractice or neglect of duty." They gave the House of Representatives the power to impeach a President for "treason, bribery or other high Crimes and Misdemeanors" by a simple majority vote, and they gave the Senate the power to convict or dismiss the charges, setting a high bar for conviction, with a two-thirds majority.
But what would "high Crimes and Misdemeanors" mean in practice? In 1970, during an unsuccessful effort to impeach the Supreme Court Justice William O. Douglas, Representative Gerald Ford argued that an impeachable offense was "whatever a majority of the House of Representatives considers it to be at a given moment in history." That was an overstatement—the President was never intended to serve at the pleasure of Congress—but it contained an essential truth: impeachment is possible even without a specific violation of the U.S. Criminal Code. When Alexander Hamilton wrote of "high Crimes," he was referring to the violation of "public trust," by abusing power, breaching ethics, or undermining the Constitution.
The first test came with the impeachment of Andrew Johnson, in 1868. Johnson, who became President after Lincoln's assassination, was a combative Tennessean, sympathetic to the Southern states, and was uncomfortable in Washington, which he disparaged as "twelve square miles bordered by reality." He mocked the legislative branch as "a body called, or which assumes to be, the Congress," and vetoed the Civil Rights Bill of 1866, which was intended to confer citizenship on freed slaves. Congress was incensed; Senator Carl Schurz, of Missouri, compared Johnson to "a wounded and anger-crazed boar." Eventually, the President engineered a showdown with Congress, by deliberately breaking a law against firing a Cabinet secretary without Senate consent. As a result, the House moved to impeach him, accusing him of "denying" the work of another branch of government and "preventing the execution" of laws passed by Congress. Johnson was acquitted in the Senate by one vote.
David O. Stewart, the author of "Impeached," a history of the case, told me that it established a crucial point: impeachment is not a judicial proceeding but a tool of political accountability. "Because of the unique powers of the executive, we are depending on a single person to be wise and sane," Stewart said. "If, in fact, there are enough people who no longer think those are both true, impeachment is designed to deal with that." For this reason, actual evidence of misconduct may not be the most important criterion in determining which Presidents get impeached. "The most important thing is political popularity," Michael J. Gerhardt, a professor of constitutional law at the University of North Carolina, told me. "A popular President is unlikely to be threatened with impeachment. Second is your relationship with your party—how strongly are they connected to you? Third is your relationship with Congress, and fourth is the nature of whatever the misconduct may be."
By far the most valuable lessons about impeachment come from Richard Nixon. In 1974, Nixon resigned shortly before he could be impeached, but his misjudgments—political, psychological, and legal—have illuminated the risks to Presidents ever since. In 1972, Nixon's White House oversaw the bugging of the Democratic National Committee offices at the Watergate complex and the ensuing coverup. That was illegal and unethical, but it did not guarantee Nixon's downfall, which came about because of two critical mistakes.
First, when the scandal emerged, the President underestimated the threat. "There were any number of steps that could have made it go away," Evan Thomas, the author of "Being Nixon," told me. "They could have cleaned house and fired people." But Nixon assumed that his supporters would never believe the accusations. "He was ahead by thirty-four points in the polls in August, 1972," Thomas went on. "He could have taken his clothes off and run around the White House front yard and he was going to win reëlection."
As the scandal ground on, Nixon made his second mistake: he flouted the authority of a coequal branch of government. In October, 1973, Nixon refused to obey a federal appellate-court ruling that ordered him to turn over tapes of conversations in the Oval Office, and he forced out the investigation's special prosecutor, Archibald Cox. For nine months, Nixon continued to resist—in effect threatening the basic constitutional system—until, in July, 1974, the Supreme Court ruled that he had to comply. By then, the damage was done, and the House Judiciary Committee launched impeachment hearings. By thwarting other branches, Nixon weakened his support in Congress and convinced the country that he had something to hide. Until that point, much of the public had not focussed on the slow, complex investigation, but interviews at the time show that Nixon's stonewalling made people pay attention, and he never recovered. "Well, everything has added up to his incompetence over the last few months, and I don't think the American people should stand for it any longer," a woman interviewed in New York by the Associated Press said. "In fact, I just signed an impeach petition."
By August, many of his top aides had been indicted, and polls showed that fifty-seven per cent of the public believed that Nixon should be removed from office. On August 6th, after a tape recording surfaced which captured him orchestrating the coverup, he was abandoned by Republicans who had previously derided the Watergate scandal as a witch hunt. Senator Barry Goldwater, of Arizona, told colleagues, "Nixon should get his ass out of the White House—today!" On August 9th, Nixon sent a letter to Secretary of State Henry Kissinger: "Dear Mr. Secretary, I hereby resign the Office of President of the United States. Sincerely, Richard Nixon."
A quarter century later, the Bill Clinton impeachment yielded two related lessons—one about the path into crisis, and one about the path out of it. The first lesson was that investigations beget investigations. In January, 1994, when a special prosecutor started looking into Bill and Hillary Clinton's investments in Whitewater, a failed Arkansas real-estate deal, there was no way to anticipate that it would conclude, nearly five years later, with Clinton's impeachment for trying to cover up an affair with Monica Lewinsky, a twenty-two-year-old White House intern. Many raged against the conduct of that inquiry, accusing Kenneth Starr, the independent counsel, of abusing his powers, but the outcome demonstrated that a White House under investigation is in danger of spiralling into crisis.
The second lesson of the Clinton impeachment comes from the strategy adopted by his legal team. Learning from Nixon's fate, the lawyers realized that congressional Democrats would abandon Clinton if they concluded that he had lost the trust of the public. Gregory Craig, one of the lawyers who directed Clinton's defense, told me recently, "The fundamental point is that it's a political process." He and his team spent less energy on disputing the details of evidence than on maintaining support from fellow-Democrats and from the public. They painted Clinton as the victim of a partisan quest to exploit an offense—covering up an affair—that was not on the scale of abuse that the Framers had in mind. "To be honest, we pursued a strategy that embraced polarization," Craig recalled. "I gave a statement to the press that said this is the most unfair process since the Inquisition in Spain. Some arcane historical reference came out of my mouth. I said, 'It's like they've tied up President Clinton, put him in a closet in the middle of the night and turned off the lights, and they're whipping him.' "
The strategy succeeded. By the time the House impeached Clinton, on December 19, 1998, his approval rating had risen to more than seventy per cent—his highest level ever. "It's a vindictive party that just went out to get him," a man at an American Legion post in San Diego told a reporter, in December, just before the House voted to impeach. When the case reached the Senate, Clinton's lawyers capitalized on his popularity and presented his misdeeds in the broader context of his Presidency. In closing arguments, Charles Ruff, the White House counsel, asked, "Would it put at risk the liberties of the people to retain the President in office?" The Senate acquitted Clinton on all charges.
Were Trump to face impeachment, his lawyers would likely try to present him as a victim of a partisan feud, but his unpopularity would be a liability; Republicans in Congress would have little reason to defend him. Nonetheless, the Clinton impeachment may contain an even larger warning for Democrats in pursuit of Trump. "It's pretty important to be seen in sorrow rather than anger," Stewart, the historian of impeachment, said. "Don't emerge red in tooth and claw. That's not merely tactical—it's good for the country, because you should only pursue impeachment if you really have to."
Not long ago, the topic of impeaching Trump occupied a spot on the fringe of Democratic priorities somewhere around the California secessionist movement. "If you'd have asked me around Election Day, I would have said it's not realistic," Robert B. Reich, Clinton's Secretary of Labor, told me in April. "But I'm frankly amazed at the degree of activism among Democrats and the degree of resolution. I've not seen anything like this since the anti-Vietnam movement. " In April, Reich, who is now a professor of public policy at the University of California, Berkeley, released an animated short, mapping out the path to impeachment, and it became an unlikely viral hit, attracting 3.5 million views on YouTube in the first twenty-four hours.
Because the Republican leadership in the House of Representatives will almost certainly not initiate the ouster of a Republican President, the first step in any realistic path to impeachment is for Democrats to gain control of the House. The next opportunity is the 2018 midterm elections. Republicans have been relatively confident, in part because their redistricting in 2010 tilted the congressional map in their favor. But Douglas Holtz-Eakin, a Republican economist and the president of the right-leaning American Action Forum, believes that the chances of control shifting to the Democrats is greater than many people in either party realize. "After a party takes the House, the Senate, and the White House, they typically lose thirty-five seats in the House in the next midterm," he told me. "Republicans now hold the House by twenty-three seats, so, as a going proposition, they're in trouble. They need to do really, really well."
Unfortunately for the congressional G.O.P., unpopular Presidents sow midterm fiascos. Since 1946, whenever a President has had an approval rating above fifty per cent, his party has lost an average of fourteen seats in the midterms, according to Gallup; whenever the rating has been below fifty per cent, the average loss soars to thirty-six seats. Steve Schmidt, the Republican consultant, is concerned that, in 2018, the Party faces a convergence of vulnerabilities akin to those which pertained during the 2006 midterms, whose outcome George W. Bush characterized as "a thumping." Schmidt told me, "The last time Republicans lost control of the House of Representatives, it was on a mix of competency—Iraq and Katrina—and corruption in government, with the Tom DeLay Congress." The Trump Administration has a comparable "basic competency issue," he said. "The constant lying, the lack of credible statements from the White House, from the President on down to the spokesperson, the amateurishness of the threats to the members of Congress, the ultimatums, the talk of 'enemy lists' and retribution."
Tom Davis, who twice led Republican congressional-election efforts during fourteen years as a representative from Virginia, believes that his former colleagues are overly complacent. "These guys need a wake-up call. They're just living in la-la land," he said. He pointed out that regardless of the final outcome of an attempt to impeach—the two-thirds majority in the Senate remains a high bar to clear—Democratic control of the House would immediately make Trump more vulnerable to investigations. "If the gavels change hands, it's a different world. No. 1, all of his public records, they will go through those with a fine-tooth comb—income taxes, business dealings. At that point, it's not just talk—they subpoena it. It gets ugly real fast. He has so far had a pass on all this business stuff, and I don't know what's there, but I've got to imagine that it's not pretty in this environment."
If Democrats retake the House, the Judiciary Committee could establish a subcommittee to investigate potential abuses and identify specific grounds for impeachment. The various investigations of Trump already in process will come into play. In addition to allegations of business conflicts and potential Russian collusion, Trump is facing dozens of civil proceedings. In a case in federal court, he is accused of urging violence at a campaign rally in Louisville, Kentucky, in March, 2016, where he yelled, referring to a protester, "Get 'em out of here." In a New York state court, he is facing a suit brought by Summer Zervos, a former contestant on "The Apprentice," who alleges that he sexually assaulted her in 2007. The constitutional question of whether a President could be impeached for offenses committed before he took office is unsettled, but, as Clinton's case showed, civil proceedings contain risks whenever a President testifies under oath.
Many scholars believe that the most plausible bases for a Trump impeachment are corruption and abuse of power. Noah Feldman, a Harvard Law School professor who specializes in constitutional studies, argues that, even without evidence of an indictable crime, the Administration's pattern of seemingly trivial uses of public office for private gain "can add up to an impeachable offense." Last week, after the State Department took down an official Web page that showcased Trump's private, for-profit club, Mar-a-Lago, Feldman told me, "A systematic pattern shown through data points would count as grounds for impeachment." He said that economic analysis of the former Italian Prime Minister Silvio Berlusconi's self-enrichment proves the concept. "Berlusconi is said to have gained at most one per cent per business transaction from his Presidency, but that added up to more than a billion euros," Feldman said.
Allan J. Lichtman is an American University historian who has correctly forecast every Presidential election since 1984 (including Trump's victory). In April, he published "The Case for Impeachment," in which he predicted that Trump will not serve a full term, because of a "Nixonian" pattern of trespassing beyond constitutional boundaries. He cited an incident in late January, during the legal battle over Trump's first executive order on immigration. James L. Robart, the U.S. district judge who blocked the order, rejected the White House's claim that the court could not review the President's decision, ruling that the executive must "comport with our country's laws, and more importantly, our Constitution." Trump's response was a further violation of democratic norms: he disparaged Robart as a "so-called judge" and said that he should be held responsible for future terrorist acts on Americans. "If something happens blame him and court system. People pouring in. Bad!" Trump tweeted.
Senator Richard Blumenthal, a Connecticut Democrat who is on the Judiciary Committee, believes that the Administration's actions denigrating or denying the power of equal branches of government portend a "constitutional crisis" akin to Nixon's refusal to accept the appellate-court judgment regarding the White House tapes. Last week, lawmakers from both parties announced that White House officials had refused a request from an oversight committee to turn over internal documents related to the hiring and resignation of Michael Flynn. In a letter to the House oversight committee, Marc T. Short, the White House director of legislative affairs, said that the Administration is withholding documents because they "are likely to contain classified, sensitive and/or confidential information." Blumenthal told me, "I foresee a point that there will be subpoenas or some kind of compulsory disclosure issued against the President or the Administration by one of the investigative bodies—the F.B.I. or the Intelligence Committee or an independent commission, if there is one—and, at that point, there may be the sort of confrontation that we haven't really seen in the same way since United States versus Nixon."
Trump campaigned as a dealmaker who could woo disparate Republicans. Though there was no natural Trumpist wing of the Party, he was expected to ally with the three dozen conservative members of the Freedom Caucus, who tended to admire his anti-establishment populism. But the relationship descended into acrimony almost immediately. After the caucus objected to part of Trump's effort to repeal and replace Obamacare, leading to the collapse of the bill, Trump publicly threatened to target its members in next year's elections. "The Freedom Caucus will hurt the entire Republican agenda if they don't get on the team, & fast," he tweeted. "We must fight them, & Dems, in 2018!"
He went after individual members as well. At one point, he threatened to support a primary challenger against Mark Sanford, the South Carolina congressman. I asked Sanford if he regarded the threat as a bargaining tactic. "I think it was genuine," he said. "It certainly wasn't said in a way that suggested a bluff and then a wink and a nod." Sanford said, of the level of support for Trump among Republicans in Congress, "In general, the mood of the conference is that we're in the same boat together." But he added a caveat: "This has to fundamentally be a game of addition, not just subtraction. I'm not sure the Administration has fully grasped that concept yet. You're probably not adding to the list of permanent allies and friends." He went on, "I think that there's a degree of immunity that has come with the way that he has broken all of the past molds. But I would also argue that there's a half-life to that."
Trump is not faring much better with moderate Republicans. At a meeting in March, Charlie Dent, a seven-term centrist congressman from Pennsylvania, expressed misgivings about the health-care plan, and Trump lashed out. "He said something to the effect that I was destroying the Republican Party," Dent told me. "And that the tax reform is going to fail because of me, and I'd be blamed for it." In targeting Dent, Trump found an unlikely antagonist. Dent co-chairs an alliance of fifty-four moderate Republicans so resolutely undogmatic that they call themselves simply "the Tuesday Group." Dent said that he remains ready to back Trump "when the President is on the right track," but he left no doubt that he would break when his conscience requires it. "We have to serve as a check. I mean, that's kind of our one power. We should accept that."
William Kristol, the editor-at-large of The Weekly Standard, one of the most prominent conservative critics of Trump, told me that the Administration's failure to get any bills passed was stirring frustration. "Most Republicans, I would say, wanted him to succeed and were bending over backwards to give him a chance," Kristol said. "I think there was pretty widespread disappointment. You kind of knew what you were getting in terms of some of the wackiness and also some of the actual issues that people might not agree with him on—trade, immigration—but I think that just the level of chaos, the lack of discipline, was beginning to freak members of Congress out a little bit."
Trump has been meeting with congressional Republicans in small groups. By and large, they have found him more approachable than they expected, but much less informed. "Several have been a little bit amazed by the lack of policy knowledge," Kristol said. "God knows Presidents don't need to know the details of health-care bills and tax bills, and I certainly don't, either—that's what you have aides for. But not even having a basic level of understanding? I think that has rattled people a little bit." He added, "Reagan may not have had a subtle grasp of everything, but he read the briefing books and he knew the arguments, basically. And Trump is not even at that level."
When I asked Kristol about the chances of impeachment, he paused to consider the odds. Then he said, "It's somewhere in the big middle ground between a one-per-cent chance and fifty. It's some per cent. It's not nothing."
The history of besieged Presidencies is, in the end, a history of hubris—of blindness to one's faults, of deafness to the warnings, of seclusion from uncomfortable realities. The secret of power is not that it corrupts; that is well known. "What is never said," Robert Caro writes, in "Master of the Senate," about Lyndon Johnson, "is that power reveals." Trump, after a lifetime in a family business, with no public obligations and no board of directors to please, has found himself abruptly exposed to evaluation, and his reactions have been volcanic. Setting a more successful course for the Presidency will depend, in part, on whether he fully accepts that critics who identify his shortcomings are capable of curtailing his power. When James P. Pfiffner, a political scientist at George Mason University, compared the White House crises that confronted Nixon, Reagan, and Clinton, he identified a perilous strain of confidence. In each case, Pfiffner found, the President could not "admit to himself that he had done anything wrong." Nixon convinced himself that his enemies were doing the same things he was; Reagan dismissed the trading of arms for hostages as the cost of establishing relations with Iran; Clinton insisted that he was technically telling the truth. In Pfiffner's view, "Each of these sets of rationalizations allowed the Presidents to choose the path that would end up damaging them more than an initial admission would have."
Law and history make clear that Trump's most urgent risk is not getting ousted; it is getting hobbled by unpopularity and distrust. He is only the fifth U.S. President who failed to win the popular vote. Except George W. Bush, none of the others managed to win a second term. Less dramatic than the possibility of impeachment or removal via the Twenty-fifth Amendment is the distinct possibility that Trump will simply limp through a single term, incapacitated by opposition.
William Antholis, a political scientist who directs the Miller Center, at the University of Virginia, told me that, thus far, the President that Trump most reminds him of is not Nixon or Clinton but Jimmy Carter, another outsider who vowed to remake Washington. Carter is Trump's moral and stylistic opposite, but, Antholis said, "he couldn't find a way to work with his own party, and Trump's whole message was pugnacious. It was 'I alone can fix this.' " Like Trump, Carter had majorities in both chambers, but he alienated Congress, and, after four years, he left the White House without achieving his ambitions on welfare, tax reform, and energy independence.
Oscillating between the America of Kenosha and the America of Mar-a-Lago, Trump is neither fully a revolutionary nor an establishmentarian. He is ideologically indebted to both Patrick Buchanan and Goldman Sachs. He is what the political scientist Stephen Skowronek calls a "disjunctive" President, one "who reigns over the end of his party's own orthodoxy." Trump knows that Reaganite ideology is no longer politically viable, but he has yet to create a new conservatism beyond white-nationalist nostalgia. For the moment, all he can think to do is rekindle the embers of the campaign, to bathe, once more, in the stage light. It lifts him up. But what of the public? Does he understand that all citizens will have a hand in his fate?
When Trump's speech in Kenosha was over, he walked across the stage to sign an executive order. "Get ready, everybody," he said. "This is a big one." Since taking office, he had issued twenty-four executive orders, and the signings had become a favorite way of displaying his power. The scope of this order was modest—it merely established studies of visas and imports—but he described it as "historic."
He uncapped a pen and, just before he signed the order, he said, "Who should I give the pen to? The big question, right?" There was nervous laughter, and he called some local and visiting politicians up to the stage to stand beside him while he signed. Then he said, "This is a tremendous honor for me," and tried his joke again: "The only question is, who gets the pen?" He held up the signed order to the cameras, as always, pivoting left, then right, and grinned broadly.
He stepped down from the stage and walked along the front row of the audience, shaking hands, before his Secret Service detail escorted him toward Marine One. He was going straight back to Washington. The audience, kept in place until he was safely extricated, milled about awkwardly. The theatrical atmosphere dissipated, leaving behind the remainder of an ordinary Tuesday at work.
I approached a woman who introduced herself as Donna Wollmuth. She was sixty-eight years old, and she worked in Snap-on's warehouse, packing boxes for shipment. I asked her what she thought of Trump's comments. "I believe in it," she said. "And I believe in America. I want the jobs back here."
At first, I wondered if she was merely repeating Trump's slogans, but it became clear that she had thought hard about his message. Her story was of the kind that has become a stock explanation for Trump's rise. For twenty-three years, she operated a sewing machine, making briefs and sportswear at Jockey. When the plant closed, in 1993, and production moved offshore, she found a job at the Chicago Lock factory ("Five years later, they closed") and then one at Air Flow Technology, making industrial filters. After fourteen years there, she was earning almost seventeen dollars an hour, but in 2015 she was laid off. "I lost my job there because they hired somebody that they could pay seven dollars less. It was a lot of immigrants there. Let's put it that way. I'm sure you know what I mean." She didn't like the way it sounded, but she wanted me to understand. "I'm just so stuck on this immigration thing. I really am, because I've lived through it, giving benefits and everything to people that aren't here legally."
Wollmuth had almost always voted for Democrats, but she had come to believe that her family—she has seven grandchildren and stepgrandchildren—faced a dark future. When Trump entered the race, Wollmuth was turned off by his antics. "He's gotta learn to keep his mouth shut," she said, but his pledge to reënergize American manufacturing was too specific and attractive to ignore. She took a chance on Trump, as did many of her neighbors. After going for Obama by large margins in the previous two elections, Kenosha County sided with Trump, by just two hundred and fifty-five votes out of more than seventy-one thousand cast.
That is a fragile buffer. In late April, Trump promoted the results of a Washington Post/ABC News poll showing that only two per cent of those who voted for him regretted doing so. When I asked Wollmuth if she had any regrets, she made it clear that it was the wrong question. "I don't want to be disappointed, and I hope he's really trying," she said. "I'd like to believe that. I'd like to see it happen. I've got mixed emotions with him so far."
Walking out of Snap-on's headquarters, through the chanting crowd, I wondered whether Trump could see the protesters from his chopper. He knows the unpredictable potential of a crowd. I remembered something that Sam Nunberg, the Trump campaign adviser, had told me about Trump's fixation on crowds. "I said to him once, 'I understand it's the biggest. Who gives a shit? Who cares at this point? What we care about is votes,' " Nunberg said. "And he says, 'No. It's got to be.' Some of it was he was seriously concerned about the country. He also wanted to see where this went and what it was. The crowds and energy showed him it was a movement." ♦
Evan Osnos joined The New Yorker as a staff writer in 2008, and covers politics and foreign affairs. He is the author of "Age of Ambition: Chasing Fortune, Truth, and Faith in the New China."
Trump has the intellectual depth of a coat of paint.