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Why the 5/1 that President Trump will be impeached during his first term is not an attractive bet

November 17th, 2016

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Looking at the process and the politics

The man whose business methods can be charitably described as unconventional will take over the most powerful and most heavily scrutinised job in the world on 20 January next. Will his tenure end in impeachment? BetFred are offering 5/1 that Trump will be successfully impeached by 2020.

History of Presidential impeachment

No US President has been impeached and removed from office. Serious proceedings have been launched against three Presidents, Andrew Johnson in 1868, Richard Nixon in 1974 and Bill Clinton in 1998. Briefly, the Johnson and Clinton impeachments died in the Senate (Johnson by only one vote on three separate charges) and Nixon resigned before he could be tried. It is a lengthy and complex process, and effectively brings national political life to a standstill.

There are two conditions that need to be met for an impeachment to happen:

The law: The President must be accused of an impeachable offence; and

The politics: The President’s political support must have drained away to the extent that 2/3 of the Senate votes against him.

The law

Our American cousins do not share our enthusiasm for making up constitutional practice as we go along, and the impeachment process is tightly defined and consists of two stages.

Stage 1 – House

Section LIII of the Jefferson Manual on Congressional Procedure says that the House votes on articles of impeachment. For Clinton, those were drafted by the Judiciary Committee after an investigation by a Special Prosecutor, and this seems the most likely way that an impeachment of Trump would be initiated.

Stage 2– Senate

Stage two is set out in the Constitution. The relevant sections of the Constitution are Article 1 Section 3, which sets out the process:

The Senate shall have the sole Power to try all Impeachments.  .  When the President of the United States is tried, the Chief Justice shall preside:  And no Person shall be convicted without the Concurrence of two thirds of the Members present ...

and Article 2 Section 4, which describes the crimes for which they can be impeached:

The President shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors

One can assume that Trump will not be guilty of treason, at any rate as it is defined in the Constitution, where the definition is deliberately narrow. It also seems unlikely that he will be guilty of receiving a bribe, given the intense scrutiny of his finances and his enormous wealth. The odd-sounding and vague phrase “other high Crimes and Misdemeanors” is therefore crucial to whether Trump will be impeached. Rather surprisingly, the phrase goes back to 14th century English law and the impeachment of the Earl of Suffolk. But it currently understood to involve some bad action by the President in the course of his duties. If the President committed a murder outside the course of his duties, therefore, he could not be impeached, but would be dealt with through normal criminal law. Issuing himself a pardon for that murder, however, could render him subject to impeachment.

How likely is it that Trump will commit such crimes? My own impression is that it is fairly likely. His business methods seem on occasion to be one step above the criminal and people of 70, used to getting their own way, do not often change radically. In addition, the President must take so many decisions every day, and the scrutiny is so intense, that if people dig through enough trash cans they may well find things they can use against him. It is worth noting that a recent, well publicised book claimed that US law is so widely drafted that the average American professional commits three felonies per

day, and no doubt the President could be said to commit considerably more.

The politics

Impeachment has the appearance of a judicial process, with the House as Prosecutor and the Senate as the Judge, but impeaching an extremely popular President is unthinkable. Congressmen have to think of their own re-election, and the unpopularity of Clinton’s impeachment seems to have been a factor in the Republican losses in that year’s mid-terms. More than half the House must vote for the Articles, and two-thirds of the Senate must vote to convict. Much will depend on the crimes and the articles of impeachment, but the latter is a high hurdle. I doubt they will be met while the two Houses are in Republican hands, and while the President is relatively popular. This means that an impeachment is only likely after the 2018 mid-terms, and only then if there are heavy GOP losses in the House. Members of Congress will be chasing their own re-election and, given the obvious pointlessness of pursuing a President who could be out of office fairly soon anyway, the proceedings would have to be launched sometime in 2019.

So, there are two ways I think impeachment could happen:

Trump commit such an egregious abuse of power that even his own party desert him. I think that is possible, and, given how much many of them seem to despise him, an outside chance, but given that the President surrounds himself with lawyers, I think it unlikely;

The Democrats win control of the House and Senate in 2018, and try to blow some smaller scandal out of all proportion. This seems far likelier, but a quirk of the American system could save Trump. It is not mathematically possible for the Democrats to reach 67 Senators in 2018, since only 8 Republican seats (and two independents who caucus with the Democrats) are up for grabs. Even if the Democrats swept the House and all available Senate seats in 2018, therefore, they would have to persuade large numbers of their opponents to support them, as the Republicans utterly failed to do in 1999.

Finally, briefly, a word on the alternative. If Trump is impeached, America will be looking at President Pence. From his record, Pence is an anti-environmentalist, pro-trade, fundamentalist Christian. The Democrats who would probably have to lead any impeachment would want to be sure that facing him as an incumbent in 2020 would be better than facing a weakened Trump.

Betting

Given all the above, am I going to place the second political wager of my life on this question at 5/1? At this stage, I am not tempted. Too much needs to come together. As there is virtually no prospect of successful impeachment happening by the middle of next year, I will wait a few months and see what his style of government is like, and how deep his support is. If he is autocratic and his support is shallow, I would be tempted to wager at shorter odds than 8/1, say down to 5/1. If he seems to have charisma and luck, I’d struggle to back it at 20/1. Either way, I don’t think it will happen before 2019, barring some unprecedentedly awful act on Trump’s part. That can’t be ruled out, but is hardly something on which a cautious cove like me would risk his £50.

Either way, 2019 is the year to watch: if the midterms are unfavourable and if Trump is abusing his power, odds could shorten dramatically.

A guest slot by “Fishing”