You are Speaker of the House of Representatives -- will you impeach the president?

Lincoln was moved by the wounded and dying men. . . .For him it was impossible to drift into the habitual callousness of the sort of officialdom that sees men only as pawns to be shifted here and there. . . .Is it possible to recall anyone else in modern history who could exercise so much power and yet feel so slightly the private corruption that goes with it?  Here, perhaps, is the best measure of Lincoln's personal eminence in the human calendar -- that he was chastened and not intoxicated by power.

--  Richard Hofstadter, "The American Political Tradition" (1948) 

American historian Richard Hofstadter has been described as having no heroes to worship. Clearly, though, he thought highly of Lincoln, and with good reason.

Hofstadter's analysis of Abraham Lincoln's exercise of the powers of the presidency would make excellent reading for any future American president.  The conditions during Lincoln's presidency were extraordinary.  We should expect similar restrained behavior from any other president.  It should be easy -- since the Civil War, there has been no further threat of secession.

The voting public has the option to deny reelection to any president who does not equal or exceed Lincoln's measure of restraint.  And, if something in presidential conduct is deemed to be immediately amiss and harmful to the nation, and therefore should not await a coming election, the Constitution provides for impeachment and possible removal from office.

Read what follows as if you have been elected to Congress.  You are experienced in governing, respected by most, feared and disliked by some (apparently including today's president), and liked by many -- currently those who like you are much more numerous than those who dislike you, but that could change.  "It's politics" as the saying goes.  

You are the Speaker of the House of Representatives.  Don't pretend that your name is Nancy.  It's whatever it is, and you are the Speaker.

Soon, you are going to have to make a major political and governing decision.  It might become the most important decision of your career.  You will have to answer this question:  Should the president be impeached?

Impeachment starts in the House.  Committees investigate actions by the president that could be impeachable, as defined by the Constitution:  "treason, bribery, or other high crimes and misdemeanors."  If the results of the investigations fit into any of those categories, then the Judiciary Committee draws up articles of impeachment.  The articles describe the accusations of presidential misconduct, each one of which would merit removal from office.  Once approved by the House, impeachment moves to the Senate where Representatives from the House plead the case.  At the conclusion of the testimony, the Senate votes on each article individually.

Removal from office requires a two-thirds vote of the Senate.

As the Speaker, you are in control.  Each one of the 435 Representatives in the House has something to say about impeachment, so you are probably hearing 435 (at least) different sets of opinions on whether or not to impeach the president; that's a lot to absorb.  But Congress has rules -- yes, it actually has rules, and for the most part those rules are followed and they don't change very often -- and when all those rules are said and done what it amounts to it that the Speaker is in control.

By the way, you have probably already assumed this, but just so there's no confusion:  You are a Democrat, because Democrats are in a solid majority in the House.  Republicans, however, have 53 of the 100 Senate seats.

The Mueller report is out, although at this point all that you have seen is the redacted version.  That's the one delivered by the Attorney General after he and his staff have gone through all 448 pages with black markers and covered up the stuff that they think, for one reason or another, should not be shared with the public.  Let's not agonize over the hidden pieces; the picture of this puzzle will become clear in time.

You and your staff and all your Democrat Representatives and their staffs have read the report.

You wouldn't want to be the subject of the report.

The report's pages are organized into two volumes.  They are named Volume I and Volume II.  In using those names the Special Counsel showed that he has no imagination, which could be a good thing in this case.

The Introduction to Volume I begins on the ninth page of the document, and an Executive Summary begins on the twelfth page of the document.  Together they are ten pages.  The Introduction survived the redaction process in its entirety; not so the Executive Summary.

The Introduction to Volume II begins on the 213th page.  Together with the Executive Summary, they occupy the first eight pages of Volume II.  Once again, the Introduction is clear, and parts of the Summary are redacted.

In reading only those 18 pages you learn:

1. The Special Counsel has determined that "the Russian government interfered in the 2016 presidential election in sweeping and systematic fashion."
2. The Russian operations "favored presidential candidate Donald J. Trump and disparaged presidential candidate Hillary Clinton."
3. The investigation concluded that "the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the [Trump] Campaign expected it would benefit electorally from information stolen and released through Russian efforts." 
4. The Special Counsel, acting "as an attorney in the Department of Justice," was not in a position to make a "criminal accusation against a sitting President" in the matter of obstruction of justice.
5. However, the Special Counsel went to considerable efforts to include several shiny nuggets regarding the president's intent to obstruct justice ( Volume II: page 4, "The appointment of a Special Counsel and efforts to remove him;" and related material on pages 5, 15, 31, 32 and elsewhere outside of the introductory and summary pages).
6. And, finally, regarding a potential charge against the president of obstruction of justice:  ". . .while this report does  not conclude that the President committed a crime, it also does not exonerate him."  Also, "no person is above the law."

Do you begin the impeachment process now?

The bar that must be crossed to qualify for presidential impeachment is low.  Constitutional law scholars might say otherwise, but you know the uneven history of impeachment.

Presidential impeachment has been used three times.  Only once did it cause the removal of the president, and that episode comes with a qualification.  If the goal of impeachment is to remove the president from office, then impeachment's track record is not good.

The first impeachment was of Andrew Johnson, successor to Abraham Lincoln.  The case against Johnson was stated in almost a dozen articles of impeachment.  One accused Johnson of making speeches that "attempt to bring into disgrace, ridicule, hatred, contempt and reproach, the Congress of the United States."  This was amplified by the next one which claimed harm because of Johnson's "Bringing disgrace and ridicule by his aforementioned words and actions."

(Yes, I know, it's tempting to consider a little copy/paste at this point, but give it a pass.)

The House of Representatives' impeachment case focused on Johnson firing his Secretary of War without the advice and consent of the Senate.  This sounds odd, and it should, because there is no such constitutional requirement.  But Congress had passed a piece of legislation (Tenure of Office Act) over Johnson's veto that added this requirement to the Constitution's advice and consent clause.  Congress did this when it became apparent that Johnson wanted to replace Lincoln's appointee with one of his own.  (The Act subsequently faded into near-obscurity and was repealed twenty years later.)

Nowhere in the articles of impeachment was there mention of the real reason.  It was political:  Congress was controlled by Republicans who had their own ideas of post-Civil War southern states reconstruction to which Johnson, a Tennessee Democrat, was opposed.

The case for impeachment failed in the Senate, thanks to some Republican senators who didn't have the stomach for the extra-Constitutional manipulation.  Johnson served out his term as president, but by then had no chance of winning a second term.  The Republican legislative strategy for Southern Reconstruction was firmly in place.  (Johnson was elected a U.S. Senator and served briefly until his death.)

Impeachment of Bill Clinton (a Democrat) also failed in the Senate.  The articles for his impeachment were briefer than for Johnson:  perjury in testimony to a grand jury, and obstruction of justice, both in connection with his attempts to conceal extramarital relationships.  However, these were the result of a special counsel-like investigation into a decades-old real estate deal.  Failing to discover evidence of wrong-doing, the investigation went elsewhere and stumbled upon the affairs.

When Erskine Bowles, Clinton's Chief of Staff, questioned Newt Gingrich, Republican Speaker of the House, on why he was going to impeach Clinton, Gingrich's answer was:  Because we can.

The only other presidential impeachment episode concerned Richard Nixon.  In the wake of the Watergate affair -- which included considerable amounts of independent investigation and the infamous "Saturday Night Massacre" -- the House Judiciary Committee prepared articles for impeachment.  Within a few days, but before a House vote on the matter, Nixon resigned.

If the goal of impeachment is to remove the president from office, then impeachment has failed in both cases where it was pursued in its entirety.  The only time it succeeded was when the post-investigative process had just barely started.   The results of the investigations were by themselves conclusive.

The House has the obligation to consider possible breaches of the rule of law, such as obstruction of justice.  If the Mueller report raises the possibility of such a breach, failure of the House to follow up with further investigation could be considered an abandonment of the rule of law.

As things stand now, a two-thirds Senate vote to remove the president seems unlikely.  Revelations from House investigations might change that, but until the investigations happen and the results are revealed to the public, there is no way of knowing if removal can be a sure thing. 

The Speaker, as the highest-ranking elected Democrat office-holder in the country, has the obligation of minding the politics of the thing as well as the legal issues.  A president who does not come close to meeting the standard set by Lincoln is not necessarily impeachable, but could become increasingly vulnerable politically.

You have three choices:  Ramp up the impeachment talk; use your very large Speaker's thumb to squash any talk of impeachment; and, conduct further investigations while going easy on the impeachment talk.

You are the Speaker of the House of Representatives.  What are you going to do?