President Trump is trying to drill one message into voters’ heads as the midterm elections approach: if they want to secure the border, repeal and replace Obamacare and further his “America First” agenda, they must elect more Republicans to the Senate to bypass Democratic opposition. But there is another reason for Trump to want to put more Republicans in the Senate: it might further insulate him against any attempts to remove him from office if Democrats take the House.
Conventional wisdom has it that if Democrats take back the House in the midterm elections, which the majority of polls peg as the likeliest outcome, they will quickly move forward with articles of impeachment against the president. Some House Democrats have pursued impeachment votes before, over the objections of party leadership. A Democratic majority might find it difficult to tune out these voices, even if legal experts caution against a speedy resort to impeachment.
“If the Democrats take the House and impeach the president immediately, in my opinion that would be an exceptionally unwise step. They would do so under circumstances that all but guarantee — barring an extraordinary revelation — the president’s ultimate acquittal in the Senate,” Joshua Matz, a former clerk for Supreme Court Justice Anthony Kennedy, Georgetown Law professor and author of To End The Presidency: The Power Of Impeachment, told the Washington Examiner. “The president would then offer that judgment to the public as a vindication of his claim that there is an elite liberal conspiracy to thwart his agenda. There are people who think that you should impeach the president on the principle of the thing. That’s nice for them. But if the goal is to stabilize democracy and thwart abuse of power, impeaching without any credible likelihood of removing the president is probably a fool’s errand.”
Matz argues that if Democrats truly believe there are questions about serious abuses of power, Congress is already bestowed with substantial investigative authority.
“If the Democrats take the House and believe there are questions about grave abuses of power, the responsible thing to do is undertake investigations, use their subpoena powers, and find out whether or not there are legitimate grounds for ending this presidency,” Matz said. “Impeachment is not meant to be a cry of partisan rage that flashes and fails on the Senate floor. It is meant to actually do something. It is completely unclear what the end game of impeachment is when there isn’t a super-majority in the Senate to support it.”
While the current Senate makeup would likely not meet the two-thirds bar for impeachment in the Senate, the House could still move impeachment proceedings.
“There is precedent for that,” Philip C. Bobbitt, a leading constitutional theorist and professor at the University of Texas at Austin School of Law, told the Washington Examiner. “There was an impeachment in the 1820s that did not go forward. They felt they could easily indict the president, but they were so doubtful of getting a conviction in the Senate they just dropped it.”
Bobbitt says it all comes down to what happens with special counsel Robert Mueller’s investigation. If he passes along damning evidence of the president that changes the mood of the Senate, there could very well be a chance the Senate convicts the president.
“Special counsel Robert Mueller could hand the House a road map that, once exposed, changes the mood of the Senate,” Bobbitt explained. “Depending on what the Mueller report said, my bottom line is that I could imagine the House Judiciary Committee going forward with articles of impeachment. If they did not, in the course of the investigation, find evidence, if they didn’t produce the kind of bombshells that would sway the Senate, they they would drop the process altogether.”
