The Question Democrats Have to Answer Before They Can Impeach

The lawmakers who most want to oust President Trump don’t agree on what the party’s strongest case against him is.

House Judiciary Committee Chairman Jerry Nadler
House Judiciary Committee Chairman Jerry Nadler (J. Scott Applewhite / AP)

Updated on September 12 at 10:18 a.m. ET

Democrats clamoring to impeach President Donald Trump scored a victory of sorts this morning when the House Judiciary Committee voted to launch a formal investigation that could result in the adoption of articles of impeachment for consideration by the full House.

But the panel’s decision to broaden its probe beyond the issues covered by former Special Counsel Robert Mueller has put a whole new question before the party: If Democrats decide to move against Trump, what exactly should they impeach him for?

Although impeachment backers are still far from the 218 votes they’d need to pass articles off the floor, a majority of House Democrats now favor launching a formal inquiry. But more than a dozen interviews we conducted with lawmakers this week found that even those who support the effort are unsure which of the multitude of offenses they believe Trump has committed would make the strongest case for his removal. That uncertainty over the precise target of a potential impeachment is the latest obstacle to an effort that, months after Democrats regained power in the House, has yet to really win over the broader public.

For months, the debate over impeachment had centered on the twin allegations that Mueller had spent more than two years investigating: a conspiracy between the Trump campaign and Russia to interfere in the 2016 election, and possible obstruction of justice by the president to halt Mueller’s inquiry. But his failure to pursue the president’s indictment or to explicitly recommend action by Congress has prompted some impeachment supporters to argue that there are juicier targets for the Judiciary Committee, namely Trump’s alleged efforts to personally profit from the presidency and his potential violation of the Constitution’s emoluments clause—the prohibition on federal officials receiving gifts or payments from foreign governments.

“The original sin of this president is converting the presidency into an instrument of self-enrichment,” said Representative Jamie Raskin of Maryland, an impeachment backer and a former constitutional-law professor on the Judiciary Committee. In an interview, Raskin said that while the possible instances of obstruction of justice laid out in Mueller’s report were “terribly serious,” the allegations of corruption against the president—including his constant promotion of his properties around the world and their repeated patronage by foreign governments, federal agencies, and even the vice president—are “easily digestible” and “compelling.”

“The American people get that the president is not supposed to be holding office to get rich,” echoed Representative Madeleine Dean of Pennsylvania, another Democrat on the committee. “It is about payoffs, pardons, and profiteering.”

As Congress returned this week from its summer recess, we asked House Democrats who support an effort to remove Trump to name the single most impeachable action he has taken in office. Many were hard-pressed to answer, instead rattling off a list of alleged offenses that included those outlined in the Mueller report, violations of the emoluments clause, the president’s orders for his Cabinet members and former aides to ignore congressional subpoenas, his reported dangling of pardons to Homeland Security officials who violate immigration laws, and his hush-money payments to women with whom he allegedly had affairs.

All of those allegations are now part of the Judiciary Committee’s investigation, and Chairman Jerry Nadler has said that the panel could decide whether to recommend articles of impeachment by the end of the year.

Democrats don’t necessarily have to choose—they can impeach the president for any number of offenses they deem high crimes and misdemeanors. “When the president violates the law, we should hold impeachment proceedings,” said Representative Seth Moulton of Massachusetts, who recently dropped out of the Democratic presidential primary. “If there’s one or another [alleged offense] that gains more popularity in the press, that’s fine. But if someone robs an art museum and kills a security guard on the way out, you prosecute both crimes because they’re crimes.”

Party leaders, however, are highly sensitive to public opinion as they tiptoe toward a confrontation that, for now, most voters do not support. Speaker Nancy Pelosi has told her members that the public “is not there” on impeachment and that if the House moves forward, its case must be “as strong as possible.”

“Really, the challenge is figuring out which of the many grounds are the most powerful, which will strike Americans as the most reasonable grounds for moving ahead with this,” Representative Tom Malinowski of New Jersey said in an interview.

It will be up to the Judiciary Committee to make that case—to decide what allegations to pursue and what, if anything, to discard. “Right now we’re in the exploration and investigatory phase, so we need to look at everything. But that has to be winnowed down to a compelling case,” said Representative Gerry Connolly of Virginia, a Democrat who came out in support of impeachment proceedings last month.

Republicans have characterized the Democratic investigations as a fishing expedition undertaken by a party disappointed by the conclusions of the Mueller report and the former special counsel’s underwhelming performance during his testimony before Congress in July. “Their first effort at impeachment seems not to have worked. So now they’re looking for another path to impeachment,” Representative Liz Cheney of Wyoming, the third-ranking Republican in the House, told reporters at the Capitol on Tuesday. “They have been determined to impeach this president at all costs since he was elected, regardless of the Constitution.”

Unsurprisingly, Democrats do not take the GOP critique seriously. “Give me a break,” Raskin said in an interview. “The only reason we’re dealing with a profusion of investigations is because we’re dealing with such a profusion of crimes. It just never ends with Donald Trump.”

Yet lawmakers who have not come out for impeachment remain concerned that the party, in its zeal to respond to activists seeking a confrontation with the president, will conflate issues that represent mere policy differences with crimes that warrant investigation. “There are a lot of people unhappy with a lot of the things that the president is doing, and they’d like to sort of put them all in a basket and deal with it by way of impeachment,” Representative Susan Wild of Pennsylvania told reporters after a town hall in her district last month. The Democrat has said she is “not there yet” on impeachment. “I tend to be fairly pragmatic and process-oriented, and a lot of the things that people are unhappy with are not necessarily impeachable offenses, you know?” she added.

For now, the main debate among pro-impeachment Democrats seems to be whether there’s a stronger case in the president’s alleged corruption and violation of the emoluments clause, or whether the Mueller report still provides the best and most obvious evidence of impeachable offenses.

“I think the gravest concern we all ought to have is his bromance with Vladimir Putin, his attempt to truncate an ongoing criminal investigation of Russian interference with the election,” Connolly said. “That is very serious business.

“I don’t think we’re limited to the Mueller report, but the Mueller report—and Mueller himself virtually said so—is a road map to impeachment,” he added.

Other lawmakers said that while they find the obstruction allegations against the president to be both powerful and impeachable, the examples of Trump’s profiting off the presidency are occurring in public view, and therefore make for an easier sell to Americans. There’s “overwhelming evidence” against Trump in Mueller’s findings, but the emoluments violations constitute “corruption, plain and simple,” said Representative David Cicilline of Rhode Island. Unlike many of the allegations in the Mueller report, the Democrat added, “these are areas where the public has actually seen the conduct that is the subject of the investigation. They’ve seen the president engage in conduct in which he’s clearly benefiting himself and his family, so it’s done in plain view.”

Democrats like Cicilline praised the Judiciary Committee for formalizing an impeachment investigation many of them have been seeking for weeks or months—even if some top Democrats continue to resist using the I-word to describe it. But at the heart of the debate over the path forward is a frustration among some impeachment backers that the combination of stonewalling from the Trump administration and Pelosi’s opposition to an aggressive impeachment push has slowed the whole effort to a crawl. While they, too, want the party to make its best case against Trump, they see a president who adds to his rap sheet by the day, a Democratic leadership that prefers to fight him in court rather than by impeachment, and a committee whose investigation some think is overly deliberate and methodical.

Whether on obstruction or corruption, these Democrats say, the time to act is coming. “If we were to require that we were to investigate every single event and every act of this president before we would make a full recommendation, that could go on for years,” Cicilline said. “So I think we’re going to have to make a judgment at some point that we have sufficient evidence.”