Trump: To impeach or not to impeach?

Even under free and fair elections, democracy can fall to demagogues, would be dictators, kleptocrats, criminals or morons. Can such elected representatives be removed before their term ends?

Impeachment is the removal of elected representatives by legal means other than by elections. By definition, impeachment must be a last resort weapon used in democracy for special circumstances. These must be clearly defined in the constitution and should not be based on the whim of the electorate that might have changed its mind about the elected representatives.

The electorate must bear the burden of its ill-defined choices until the end of the mandate given to the elected representatives. This a question of principle and also a practical rule to avoid that representatives elected by a small margin of votes be subject to the swings in the opinion of the electorate.

However, there are special circumstances when impeachment is necessary and acceptable. For instance, if due to serious illness the elected representative is unable to fulfil his job. Likewise, if the representative committed a serious crime (e.g. treason or bribery) or wants to circumvent the law to suppress democracy.

Nevertheless, such circumstances must be clearly defined to avoid confusing serious with minor offenses. Let me illustrate this issue using as an example the American President. Despite his drawbacks identified in a previous post, Donald Trump was elected by a narrow majority and has many of the flaws that may be seen as a reason for impeachment.

Mr Trump is clearly a person with many personality tracts deemed as disqualifying for the office of president. He is erratic in his behaviour and a compulsive liar obsessed with his ego.

Does this mean he is sufficiently mentally ill to be incapable of doing his job? Clearly, psychiatrists can not give a definitive diagnostics. Moreover, it is a well-known fact that several world leaders were mildly schizophrenic or paranoid. So mental illnesses should be carefully graded before concluding that they are a reason for impeachment.

Yet, such assessment should not be separated from the policies pursued. For instance, while in the past Nero could only burn Rome, in our time a deranged personality may trigger a nuclear holocaust capable of destroying mankind. So, unless Trump suddenly becomes excited by pressing the nuclear button there is no strong reason for his impeachment on this count.

Turning to serious crimes, the Trump campaign has been accused of violating financing rules or colliding with the Russians. Moreover, Trump has not hidden his sympathy towards dictators like Putin. Given that Russia was the traditional enemy of the USA, can his behaviour be considered treason as suggested by former heads of the intelligence services? So far, the Muller investigation has not yet presented its report. But, unless it provides strong evidence of treason, there is no sufficient reason to impeach Trump.

The fact that Trump likes to meet with dictators like Putin, Kim Jong-un and Xi Jinping and feels uneasy when dealing with traditional democratic US allies like Merkel, Trudeau and Abe, or, more seriously, wishes to reverse international alliances to become friendly with former foes and unfriendly with former allies, is this a legitimate shift in policy or treason? As long as he does not pass state secrets to those countries he cannot be condemned on treason grounds.

Likewise, when Trump declined to disclose his tax statements before the election, refused to reorganize his business interests to avoid conflicts of interest and selected key family members for office can this be considered a serious crime? As long as such behaviour does not violate any laws it may be reproachable but it is not a crime.

Similarly, the fact that he is often described as incompetent, idiot, ignorant, racist, sexist or narcissistic cannot be used to impeach him since these tracts are not impeachable.

Note that the many Trump flaws were well known by the electorate. In 1999, well before the election, his would be trade secretary Will Ross, described the following about Trump: “The Taj Mahal casino was within sight, perhaps haps 150 yards away, its main, drive-up entrance on a side street off the Boardwalk. "On a bright sunny day in August, you'd think normal people would walk from the helipad into the casino," said Ross. "No. A stream of limos." As he recounted the scene, he made a sweeping motion with his hand to illustrate the arrival of four stretch limousines, their chauffeurs garbed in black shirts and white ties. Everyone climbed in, and the procession moved at about a half a mile per hour down the Boardwalk in front of the Taj as policemen shooed people out of the way. The level of electricity in the air was palpable as people screamed "Donny! Donny!" and eagerly shoved their cameras at his car. Ross imagined that this could not be much different from the return of a third world country's dictator from a trip abroad”. Excerpts from Hilary Rosenberg. The Vulture Investors (Kindle Locations 3820-3825). Kindle Edition”.

But, when one considers cases of obstruction of justice and witness tampering (e.g. comments on the Muller investigation and undue pressure on the FBI and witnesses) here we may find reasons for impeachment. However, these have to be materially significant. For instance, the fact that he tweets obnoxious comments about witnesses is not enough to convict him for obstruction of justice. Just as with the Clinton impeachment, on the grounds that he had lied about his affair with an intern, such conviction would be revoked by the US Senate. In such cases we need an independent assessment of the gravity of the imputed misdemeanour.

Finally, we need to consider if numerous border-line reasons for impeachment should be added to give sufficient reason for impeachment. In criminal justice, if someone is convicted of (or pleads guilty to) multiple offenses in the same case, the judge has the power to decide that sentences be served concurrently or sequentially which often makes the sentence duration vary between a few months and dozens of years. If the same reasoning were applied in the case of impeachment then it would be for a supreme court to decide if someone like Trump should be removed from office. Although this parallel has its attractions, it is prudent not to leave such discretionary power to a single body, especially if there are no strong guarantees about its independence (e.g. in the USA the president nominates judges to the Supreme Court).

So, unless there is strong evidence that clearly defined grounds for impeachment exist, elected politicians should not be removed from office through impeachment.

However, clearly defined grounds for impeachment are not enough to guarantee the perversion of democracy. We need an equally well defined due process. While it is reasonable to accept that other elected representatives might initiate the impeachment process, together with the attorney general, it should not be for them to decide. Here the decision should belong to the highest court in the land.

To conclude, well defined and subject to proper due process, impeachment is acceptable in a democracy as a last resort.

However, the proper and legitimate way of removing elected representatives is at the end of their mandate through the vote in periodic, fair and free elections.