Impeachment: The California Factor

Richard Rubin
Attorney Richard Rubin has taught at the University of San Francisco, Berkeley and Golden Gate University, is a regular columnist for the Marin Independent Journal and was Chair of the California Commonwealth Club Board of Governors, 2017-2019.

Like so much in politics the modern history of impeachment runs through California.

Richard Nixon, a Republican and the nation’s 37tth president born in Yorba Linda, chose to resign before he would most certainly have been impeached.

House Speaker and Democrat, Nancy Pelosi, a San Franciscan by adoption and second only in line to the presidency, is cautioning fellow Democrats to go slower before taking that fateful step.

The impeachment clause—Article II of the Constitution—which calls for a president’s removal from office has been only sparingly used and rightly so.

Pelosi’s reluctance to invoke it although she appears to be moving ever closer, points up the perils of doing so either too soon or too late.

Lawmakers consider it the nuclear option—but its lethality is questionable if a vast majority are not willing—as least not yet— to apply it.

What is not debatable is that, when inserting it, the framers had in mind a chief executive with monarchical ambitions prepared to run roughshod over the nation’s laws and system of justice.

Donald Trump fits that description more than any leader in U.S. history.

Although the Special Prosecutor, Robert Mueller, felt either legally constrained from or was unwilling to reach the conclusion that Trump repeatedly obstructed justice, he also did not find sufficient evidence to exonerate him.

Consensus is growing that the President of the United States has committed crimes for which he must be held accountable and Pelosi has said she favors “keeping all options on the table.”

The frustration we are seeing among the most liberal activists whose ranks grew considerably after the 2016 midterm elections and over which she has less control suggests they are displeased with the pace of events.

What is vexing for them is the fact that the framers seem to have given more protection to a wayward president than they like or they perhaps intended!

Whether Trump’s alleged felonies suit the definition of “high crimes and misdemeanors” would have to be first determined, not by the Justice Department or in a court of law but in the political arena where passions and partisanship can count more than evidence!

At least 61 House Democrats including 10 Californians excluding Pelosi say now they would like impeachment proceedings to begin immediately. However that leaves 33 other members of the state’s Democratic delegation still noncommittal and the 14 GOP members stone-silent to date.

Just 9 percent of state Republicans and 39 percent of independents support impeachment proceedings, and likely voters oppose even starting them by 54 percent to 42 percent–well short of affirmation.

Nationwide, the latest Quinnipiac University poll shows 56 percent of Democrats in favor of impeachment and 95 percent of GOP voters opposed.

These numbers help to explain why the Democratic leadership may be leery of moving too quickly.

Even so, impeachment is not a legal remedy for the commission of crimes for which Trump might not be convicted until long after he is re-elected.

Impeachment could either strengthen that result or thwart it—and that’s the Democrat’s dilemma.

Regardless, unless Congress passes new laws, sitting presidents will remain unindictable and can even be pardoned as Richard Nixon was by his successor, Vice President Gerald Ford, who was thought to later pay the price when he was beaten by Jimmy Carter.

Legal actions that have spun off from the Mueller investigation and others independent of it are going forward in a half dozen venues and could take months if not years to be fully adjudicated—by which time  Trump could contend he was vindicated if he prevails in 2020.

Proponents of the go-slower approach, including Pelosi, feel that compiling the most air-tight record through committee hearings is the best way of hastening his departure and rushing to impeachment could backfire.

The impeachment-now advocates feel the constitution has already taken a sufficient battering, there is little time to waste, and the process even if begun today will take months to conclude.

The disclosures and  investigation following the Watergate break-in leading to Richard Nixon’s resignation took 26 months beginning to end by which time public opinion favoring impeachment had solidified overwhelmingly. One after another, key administration figures offered highly damaging testimony.

The entire though redacted Mueller report was given to Congress on April 18th —less than 2 months ago– and not one witness has answered summons to appear.

Ultimately one of the articles the House returned during the Nixon imbroglio was for obstruction of justice, holding him in contempt for his unwillingness to turn over the infamous tape recordings and for lying to Congress.

Former GOP leader, Sen. Howard Baker of Texas, asked the pivotal question about Nixon which has echoed down through the ages, “What did he know and when did he know it?”

The first follow-up question for Trump would probably be: “What did he do about it?”

Trump’s defiance of congressional demands that witnesses be allowed to testify by Intelligence Committee Chair, Adam Schiff (Los Angeles), and Financial Services Chair, Maxine Waters (Los Angeles) and others goes well beyond Nixon’s stone-walling.

The immediate jump-start of impeachment proceedings it is argued, notwithstanding near-zero certainty of affirmation by the Senate would further energize Democrats and might even embolden some conflicted Republicans to vote against Trump.

That opinion has been voiced by Rep. Jared Huffman, a Northern California congressman (D-Marin and North Coast counties) who was among the first to call for impeachment.

Impeachment skeptics like to point out that Bill Clinton—only the second president to be impeached—not only completed his term but left office with high approval ratings.

The analogy may not be apt, Huffman contends.

Trump has retained strong popularity among his base though it is more difficult to gauge the depth of that support and whether it might not be wearing thin if the violations in the Mueller report are put on full public display.

A growing number of impeachment advocates such as Huffman, one of the younger House members whose advice is increasingly sought, put little stock in popularity ratings which as he points out “can change even overnight and radically” as they did with Nixon.

Both those in favor of and opposing impeachment now share at least one thing in common: They are convinced that the machinations of Attorney General William Barr who challenged the Special Counsel’s findings and impugned his integrity was an open invitation to Congress to investigate further.

Mueller has already performed an invaluable public service even if he chose to temper his conclusions. If he agrees to testify, it could either sway many of the impeachment hold-outs or do little to advance the argument depending upon what he says.

What is far more disturbing to members of Congress is this president’s unvarnished and relentless efforts to subvert an equal branch of government.

That could be the linchpin—an offense too far which members on both sides of the aisle will not tolerate and which could turn public opinion in one direction.

If that happens the scales will tilt irrevocably toward impeachment and Pelosi, a shrewder politician than most, may be counting on it.

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