By Lanny J. Davis
Tuesday night’s decision by the House Judiciary Committee to recommend impeachment on two counts of Donald Trump for on Abuse of Power and constitutional violations and obstruction of a congressional impeachment and (illegal violation of subpoenas) are quite serious. They are also quite different than the circumstances and charges faced by President Bill Clinton in the highly partisan December 1998 impeachment vote on two counts in 1998 by a lame duck Congress.
I spent most of 1998 and the first two months of 1999 as a volunteer on TV and in print media after I left the White House as President Clinton’s special counsel arguing that President Clinton had not committed an impeachable offense. I now strongly believe that President Trump has. The two situations faced by Mr. Clinton and Mr. Trump were and are much different. Here are three facts showing these differences.
Difference number one – nature of conduct: Mr. Trump abused his presidential power and violated his oath of office by asking the head of a foreign power for two favors “though”during his July 25 telephone conversation with Ukraine President Zelensky that were in Trump’s personal political interest, not the national interest: first, to investigate Democrats on working with Ukraine to help Hillary Clinton in the 2016 presidential election; and second, to investigate Vice President Biden and his son. It is a fact both those specific requests for two favors followed virtually immediately after Mr. Zelensky asked Mr. Trump for military aid to help Ukraine defend against Russian aggression in the East.
But there was no evidence that President Clinton abused presidential power or risked our democratic elections. Rather his conduct involves personal conduct and mistakes. Thus, the Republican House in December 1998 failed to approve the proposed impeachment on “ abuse of power” by a large margin— 285-148. Moreover — note this forgotten fact — the partisan Republican House also rejected a finding of lying under oath by President Clinton even during the civil deposition of Paula Jones — by a 229-205 vote.
Difference number two: obstruction of congressional impeachment inquiry. President Trump refused to comply with duly authorized subpoenas for documents and testimony as part of an impeachment congressional inquiry. If allowed as a precedent, this would defeat the Impeachment Clause the founders intended to check a dictatorial lawless president.
Indeed, Mr. Trump ordered members of his Cabinet and others illegally to defy congressional subpoenas, including those subpoenas not the subject to a federal court challenge.
In sharp sharp contrast, Mr. Clinton voluntarily submitted documents to Congress and appeared before a Grand Jury to testify. For this reason — again a fact falsely contradicted by Republicans and many MSM cable pundits and hosts — the 1999 55-person, majority Republican U.S. Senate during the impeachment trial could not muster a majority of 51 on any count voted by the House.
Fact: the 55-member Republican Senate resoundingly defeated the House charge of perjury before the Grand Jury, by a margin of 55-45 (i.e., 10 Republicans joined 45 Democrats to vote to reject the House charge and vote for acquittal). They could not deliver even 51 out of 55 votes in support of obstruction.
Difference number three: the level of public support for impeachment and removal.
As of last week, most national public opinion polls showed support for Mr. Trump’s impeachment and removal to be at or near one-half the country. And this is before the House Judiciary Committee presents its specific proposed impeachment counts starting Wednesday night in prime time and the evidence backing them up; and before the evidence is further explained during a nationally televised Senate trial.
Contrast this with Mr. Clinton’s numbers – and Richard Nixon’s. In 1998-99, there was never support for Clinton’s impeachment and removal higher than the 30s. Not even close. Regarding Mr. Nixon, he never reached above 50 percent support for impeachment and removal until the final days before his resignation, in August 1974 after “smoking gun” tape was revealed. Another contrast between Clinton and Trump is that Mr. Clinton ultimately admitted publicly his personal misconduct and apologized. Perhaps that is one of the major differences in public on opinion job approval ratings, which certainly affect attitudes towards impeachment.
Despite enjoying a hot economy as an incumbent president, Mr. Trump remains in double-digit negative opinion measuring unfavorable job approval vs. favorable job approval. Meanwhile, thorough the 1998-99 impeachment process, Mr. Clinton remained well above 50 percent in job approval. Indeed, Mr. Clinton left office on January 20, 2001, with the highest job approval ratings since modern polling was invented for a second-term president. See here.
Now the public debate begins: Did Mr. Trump commit an impeachable offense, and should he be removed from office prior to the November elections?
In the case of Mr. Trump, I believe the Founders would say, based on their writings and the words of the Constitution, Yes. I believe they would say: If you don’t impeach a president for asking a foreign power to interfere in a U.S. presidential election to dig up dirt on a political opponent for his own political purposes, then when would you? If you allow a president to refuse to comply with congressional-issued subpoenas for documents and testimonies during an impeachment inquiry, then what would be left of the Congress’ power to impeach to challenge a president who believes he or she is above the law and is unaccountable for violating his oath of office?
Those are the two questions that congressional Democrats and Republicans should debate in good faith in the next several months. If not now, when?
Lanny Davis, an attorney in Washington, served as President Clinton’s special counsel from 1996-98 and was a member of President George Bush’s Privacy and Civil Liberties Oversight Board in 2006-07. He is co-founder of the law firm of Davis Goldberg Galper PLLC and the strategic media and public affairs firm of Trident DMG. He authored, “Crisis Tales: Five Rules for Coping with Crises in Business, Politics, and Life” (2013). He has been an opinion columnist for The Hill for over 10 years. Follow him on Twitter @LannyDavis.