Trump, inauguration and impeachment

On November 9, lots of people got egg on their face, including me. I had to explain to friends and colleagues why I was so adamant Trump wouldn’t win. It’s cold comfort that there is a long list of esteemed analysts in the US who also got this wrong and far more publicly than I did. For one, eminent Professor Larry Sabato at the University of Virginia, and creator of Sabato’s Crystal Ball, said on Fox News on November 9th: “I don’t have egg on my face…I have omelette on my face!”

One other academic however stood out among the clamour of wrongness. Professor Allan Lichtmann had been claiming for months prior to the election that Trump was going to win. Professor Lichtmann predicted Trump’s win using a 13-point formula that had correctly predicted the previous 30-years worth of presidential elections. In his many congratulatory appearances on American television after the election, Lichtmann also offered a new, second prediction. A prediction based, he admits, not on a rigorous academic formula or test of any sort, but on gut instinct. This new prediction was that Donald Trump would be impeached as president, removed from office using a constitutionally defined impeachment procedure, for any number of conflicts of interests that it is illegal for the president to have under the US Constitution.

This is, to be sure, one hell of a prediction. No president has ever been removed from office. Two, Andrew Johnson and Bill Clinton, were successfully impeached by the US House of Representatives (the lower chamber), but crucially not confirmed by the Senate (the upper chamber) as required for any removal from office to take place. Trump is also looking at two chambers – the House and the Senate – now under the control of his own Republican party. Why would Congressional Republicans want to impeach a Republican President? As Lichtmann claims, Trump is not a usual Republican. He is very unpopular among voters and has legitimacy questions hanging over him. Moreover – Congressional Republicans cannot hope to control him. He’s a loose cannon. If Vice President Mike Pence was to replace an impeached Trump, Congressional Republicans would have a far more predictable, standard Republican conservative to deal with.

The politics of this is not fanciful. Most Republicans would likely prefer the predictable Pence.

With the politics above, we also have important aspects of law to consider. The clause of the US Constitution that would prompt impeachment proceedings is called the ‘emoluments clause’. A posh word for compensation, the emoluments clause was devised so that early US presidents in the 18th Century would not only be bribed or bought by foreign powers, but they would have no financial entanglements whatsoever with foreign interests.

Two legal debates arise as relevant to Donald Trump. The first asks what sort of interests does Trump have overseas that would create these ‘conflicts of interest’? put another way, would he benefit unfairly or unduly through being president and would the interests of the country be compromised as a result? (Hence the term, ‘conflict of interest’)

What we do know is the following: he has financial interests in as many as 25 countries (including Russia); he has not disclosed any of these assets and interests (nor his tax returns) formally, meaning we only know about those aspects it’s impossible to hide; he has refused to do what incoming presidents usually do to avoid conflicts of interest – sell these assets and interests or put them into a blind trust. Instead he’s decided to give them to his two sons, which doesn’t remove the problem at all as these are family members clearly under his influence. We are, in essence, waiting for a leak of documentary information which confirms Trump will benefit financially, or at least potentially could, from his overseas interests. We have seen something similar just this week involving his ties to Russia.

The second aspect of the emoluments clause is whether this clause applies to the president at all. Based on frantic attempts by pro-Trump Republican commentators, it appears this is the avenue through which they will deny Trump is an impeachment prospect. Trying to claim that the emoluments clause applies to all federal office holders except the president seems a strange ploy, but also perhaps indicates that they cannot bring themselves to deny that Trump does have international conflicts of interests. Their best bet is that this clause doesn’t apply to the president.

Three Harvard professors in constitutional law, Eisen, Painter and Tribe, however contradict this and agree with Lichtmann: the emoluments clause is a serious threat to Trump. He needs to sell his investments and put them into a trust. Quickly. They claim there is no doubt that the clause applies to the President and that his interests almost certainly entail the sort of conflict of interest that would breach the emoluments clause.

How would impeachment therefore come about? A Republican Congress would still need good reason to entertain articles of impeachment against a fellow Republican. Would an avalanche of public fury be enough for them to bring articles of impeachment? Maybe, but maybe not. Remember, Trump is very unpopular despite winning, plus he lost the popular vote by nearly 2.9 million nationally. The other factor is the US Supreme Court. Any number of Democratic party politicians are right now devising a lawsuit that will demand the judiciary decide whether the emoluments clause has been breached in Trump’s case. If this gets to the US Supreme Court and its Justices decide that ‘yes, this breaches the emoluments clause’, it is hard to imagine Congress not bringing articles of impeachment.

Only Congress can impeach the president. The Supreme Court can only give them a nudge. If Congress resists this, the result would be public outcry and a constitutional crisis worse than anything Americans’ have seen since the civil war.