If impeachment talk is going to be bandied about, there are a few things you should bear in mind

Apparently, talk of impeachment is going to be in the air for the foreseeable future. Perhaps I don’t have to tell you why.

(As an aside and in case you hadn’t heard about it yet, the Washington Post last night broke a story about a conversation among Republican House leaders in which Majority Leader Kevin McCarthy, R-California, told a group of House Republicans last June that he believed Russian President Vladimir Putin was paying Trump. When others in the group asked if he was serious or joking, McCarthy replied, “I swear to God.” Speaker Paul Ryan swore everyone to secrecy. When the Post confronted Ryan about the story, he denied that the conversation had occurred. When told that the Post had a recording of it, Ryan changed to a claim that McCarthy’s remark had been a joke. I should add that the Post presented no information corroborating the idea that Trump was on Putin’s payroll, only that McCarthy said he believed this was so.)

At the moment, I don’t personally expect us to go very far down the road to impeachment of President Trump. If Trump is not going to serve his full four-year term, I think it is much more likely to result from his resignation than from actual impeachment. I don’t think he is enjoying his gig as much as he expected to. His ego needs are depthless. I don’t know of any chapter of his life story when he stuck with anything that became hard or unpleasant.

(Another aside: Perhaps you have heard about his astonishing display of self-pity yesterday, telling the graduating class of the U.S. Coast Guard Academy that no president in history has had to endure the kind of mistreatment he has, especially by the media.)

His bag of tricks isn’t working

I don’t think of Trump as particularly smart in the way most of us think of smarts. But I suspect he’s smart enough to notice soon that the bag of tricks that got him this far – lie constantly, admit nothing and certainly never any error, change the topic, blame Hillary, blame Democrats, fire someone, change the topic again, go on the attack, assign derogatory nicknames to all he surveys, fire anyone who disagrees with him, then fire anyone who can’t make his problems go away, tweet, tweet, tweet, rally the base by repeating to them promises that he won’t keep, ignore approval ratings, brag about how smart he is while demonstrating the opposite, wash, rinse, repeat, etc., etc. – isn’t working.

Trump has also had good luck in the past with forcing people he has treated unfairly to take him to court, then sic his lawyers on them until they realize they cannot come out ahead, and they settle.

But, in general, that strategy won’t work against the level of his upcoming adversaries, high-ranking government officials who aren’t in it for the money and who don’t pay their legal fees out of pocket. And he will soon discover that the tactics mentioned in the fat paragraph above don’t work in his new gig. I suspect (but obviously it’s just my personal hunch) he will slink off stage rather than endure a legal process where his threats don’t work and his lies are exposed and he is unable to pull off his usual trick of changing the subject.

But we don’t know that. And, if impeachment talk is going to be bandied about, there are a few things you should bear in mind. So, for all of those reasons plus the fact that I am both a history nerd and a Constitution nerd, here’s a bit of a primer on the constitutional process of impeachment:

The first of two steps

As a technical matter, “impeachment” refers only to the first step in a two-step process for removing a president (or other federal official) from office. The U.S. House of Representatives has the constitutional authority to “impeach” a president (or a vice president or other high officials of the federal government, including Cabinet members and Supreme Court justices), by a majority vote, on grounds of “high crimes and misdemeanors.”

So a House vote to impeach a president doesn’t remove the person from office. It only sets up a trial in the Senate, where the Constitution requires a two-thirds vote to convict the official. Conviction of an impeachable offense results in removal from office. (I feel the need to say again that I am not predicting we will head down the impeachment path any time soon, but we will surely be discussing it.)

In U.S. history, two presidents – Andrew Johnson right after the Civil War and Bill Clinton for crimes of the libido that turned into abuses of power/coverup — have been impeached. None has been convicted in the Senate and removed, although the removal vote on Johnson failed by a single vote.

Clinton’s case was tried in the Senate on two charges. The vote on conviction on one of the charges was 50-50, and on the other it was 55-45, with the majority voting to acquit. (And it takes a two-thirds vote the other way to convict.) The votes were overwhelmingly along party lines, with all Democrats voting to acquit on both charges and some minor variance among Republicans. Johnson and Clinton both served out their terms.

Nixon resigned before full House vote

If you are wondering why I haven’t mentioned Richard Nixon, it’s because he was neither impeached nor convicted. After the House Judiciary Committee voted for impeachment on three of the five charges under consideration, Nixon resigned before the vote on those charges could occur in the full House. So neither the final act of the House impeachment process, nor the Senate trial process, ever got under way. Nixon was the only president ever to resign or to fail to serve out his term for any reason other than death in office. Will Trump be the second?

The current partisan makeup on the U.S. House is 238 Republicans, 193 Democrats and four vacancies. The makeup of the current Senate is 52 Republicans, 46 Democrats and two independents who caucus with the Dems.

So, under the current makeup of the House, assuming all Democrats voted to impeach the current incumbent and the vacancies remained vacant, at least 23 Republicans would have to vote to impeach to send the matter to the Senate. In the Senate, assuming that all the Democrats and independents voted to remove Trump, it would still require 19 of the 52 Republicans to vote for removal to get to the two-thirds vote necessary to convict and remove from office.

At the moment, I do not take the possibility of that many Republicans voting to impeach or convict Trump very seriously. The best argument for its likelihood, on the basis of partisan analysis, is to note that Trump is not a regular Republican. Vice President Mike Pence is much more of a normal Republican. It’s possible to imagine that many Republican members of Congress would enjoy working with President Pence more than they are enjoying working with President Trump.

But, again leaving aside the substance of the charges against Trump that might arise to the “impeachable” level, Republicans in either house who voted to impeach or convict him would have to worry about the political impact in their states or districts such a vote would have on Trump’s admirers. On the final hand, such damning evidence could emerge that make it hard for Republicans to vote to acquit Trump.

Four grounds for impeachment

The Constitution lists four grounds for impeachment: “treason, bribery, high crimes and misdemeanors.” It’s confusing to modern ears, because it goes from two specific offenses that we think we understand (treason and bribery), a catch phrase for other serious offenses (“high crimes”) and then the big curve, “misdemeanors,” which modern Americans use to refer to the least serious offenses.

The framers of the Constitution went through several drafts of the language then fell back on “high crimes and misdemeanors” which was language the English Parliament had used the since 1386 to describe the grounds on which officials of the British crown could be removed. (I’m relying here on this article by the Constitutional Rights Foundation, which alludes to “offenses as varied as misappropriating government funds, appointing unfit subordinates, not prosecuting cases, not spending money allocated by Parliament, promoting themselves ahead of more deserving candidates, threatening a grand jury, disobeying an order from Parliament, arresting a man to keep him from running for Parliament, losing a ship by neglecting to moor it, helping suppress petitions to the King to call a Parliament, granting warrants without cause, and bribery.”)

The unifying theme was that they were all allegations that “the official had somehow abused the power of his office and was unfit to serve.”

In one of the famous “Federalist Papers,” (Federalist No. 65), which were public arguments in favor of ratifying the Constitution, future Broadway star Alexander Hamilton defined impeachable offenses as “those offences which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust.”

As evolved, the meaning of “high crimes and misdemeanors” amounts pretty much to any misdeeds that a majority of the House and two-thirds of the Senate agree is an impeachable offense. It’s pretty clear that a serious act of misconduct can be an impeachable offense, even if it is not literally a crime in the statute books. For example, in recent days you have read that President Trump could not have broken the law by divulging classified information to the Russians, because the president is empowered to declassify any information on the spot. (I’ve also seen that one disputed on the grounds that Trump didn’t use his presidential power to “de-classify” the information, just blurted it out to impress his Russian visitors.)

Definition up to members of Congress

But the key here, and maybe it’s the main point of this whole piece, is that it’s quite possible that an impeachable high crime and/or misdemeanor does not refer to a literal list of crimes on the statute books. “High crimes and misdemeanors” may very well be pretty much anything that a majority of the House and two-thirds of the Senate decides is an impeachable offense.

Many Democrats would support starting the impeachment process soon. But they would need a very significant number of Republicans for it to matter. Over the last few days, a growing number of Republicans have talked about taking some of the allegations against Trump seriously, maybe a growing openness to a serious nonpartisan or bipartisan investigation. And I don’t claim to know what will happen next or in any time frame. The key is that actual impeachment and removal would require a very large portion of Republicans to support it, and I have no clear idea of whether that could come about.

Lastly, Phillip Carter, writing for Slate, has begun drafting some of the articles of impeachment that he believes might useful.

Correction: In the previous version of this piece, the math on the current partisan makeup in the Senate and the number of Republican votes necessary to reach two-thirds were wrong. I regret the error. EB