The Chances That Congress Will Impeach Trump Might've Gone Up, Thanks To The Midterms

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Developments in Washington D.C. this week are raising questions about the fate of President Donald Trump now that Democrats retook control of the House of Representatives in Tuesday's midterm election. As the political fallout ensues, one question now is whether Congress will impeach Donald Trump. Well, the answer, this expert says, isn't really about can, but rather about will.

Elite Daily spoke with lawyer and impeachment expert Barbara Radnofsky, author of A Citizen's Guide to Impeachment, about what might happen to the president now that the House is blue. "Mr. Trump and those in his family who hold high civil office are clearly impeachable," Radnofsky says in an email. "The key will be whether and when the House is able to build the political will to go beyond investigations and process to proceed." In other words, they can impeach; the question is, will they.

With a solid majority in the House, Democrats now have the votes needed to move an impeachment to trial in the Senate. But the impeachment equation still has a lot of unknown variables at this point. For one thing, a majority vote in the House would move any impeachment trial to the Senate, where it would still require a two-thirds vote of 67 to remove the president (or other federal official) from office. Given that Republicans still hold the Senate, it would be an uphill battle.

But could the House make that move? It's iffy. For one thing, House Minority Leader Nancy Pelosi (who may take over the role of Speaker of the House) has said that she doesn't necessarily support impeachment. "I get criticized in my own party for not being in support of it," she told PBS's Judy Woodruff on Nov. 6. "But I'm not. If that happens, it would have to be bipartisan, and the evidence would have to be so conclusive." The caveat? "It depends on what happens in the [special counsel Robert] Mueller investigation," she said.

Radnofsky agrees that the findings of Special Counsel Robert Mueller's investigation into possible collusion between the Trump campaign and Russia might have bearing. Though Mueller probably wouldn't go so far as to make any recommendations on impeachment, much less to indict a sitting president, the House would take any findings seriously. "Such high civil officers who are described as co-conspirators — indicted or not — seem high on the list for consideration for impeachment," she says. "Such people represent a direct threat to our system of government."

Some Democrats have been waiting for Mueller's report to see what the implications are for the president before they'll entertain any impeachment consideration, and it's still not clear when this report might be released, or what it might contain.

But there's another way Democrats might get the facts they need to impeach outside of Mueller: House investigations and subpoenas. Because Democrats now also wield control of House committees that oversee investigations, they can use that power to obtain information that would lay the evidential groundwork.

Mr. Trump's misconduct violates the fundamental rules of our Constitution.

Beyond whatever Mueller's report may show, the president appears vulnerable. Radnofsky notes that Congress doesn't necessarily need any indictment or crime to impeach Trump; the standard is only that they deem that Trump poses a significant threat to the country or office. "Incompetence causing massive harm is every bit as impeachable as intentional misconduct causing such harm," she says.

But Trump's move Wednesday to appoint Matthew Whitaker as acting attorney general, replacing Jeff Sessions, may also have bearing on impeachment. Whitaker, a DOJ official who's publicly denounced Mueller's probe, now has the power to choke off the investigation through a number of ways. Sessions' resignation was also apparently done at Trump's request, raising anew questions about obstruction of justice. Trump is reportedly already under investigation for obstruction of justice by Mueller for firing former FBI Director James Comey in May 2017. The White House had not returned Elite Daily's request for comment on the Sessions' resignation or Whitaker's appointment at the time of publication.

"This is a constitutionally perilous moment for our country and for the president," said incoming chair of the House Judiciary Committee, Democratic Rep. Jerrold Nadler in a statement, responding to news about Whitaker's appointment. "If he abuses his office in such a fashion, then there will be consequences."

"The firing of Jeff Sessions will be investigated and people will be held accountable," Nadler added. "This must begin immediately, and if not, then a Democratic Congress will make this a priority in January."

"Certainly the recent appointment of Whitaker helps develop the impeachment grounds (interference with administration of justice among them)," Radnofsky says. "Mr. Trump's misconduct violates the fundamental rules of our Constitution which embraces Rule of Law."

But Democrats won't necessarily pull the impeachment lever without serious consideration, she guesses. "I think they will act responsibly, meaning they will not rush into spending all of their time on impeachment, but rather plan and strategize what's best to protect the country from harm."

But the House may not even have to resort to reopening or beginning an investigation of its own: Mueller, CNN reported Thursday, has begun writing up his final report. It's unclear what it will contain, when it might be presented to Whitaker, and whether it will be seen by Congress or the public.

As Radnofsky underscores, the key is not if Trump is impeachable, but if Democrats feel strongly enough to move on it — and when.