For excitable Democrats, it was enough to leap from Watergate to talk of impeachment. “We’re actually pretty close to considering impeachment,” Kentucky Democratic Representative John Yarmuth told a home-state television station after Comey’s firing. In fact, impeachment proceedings probably aren’t imminent. Republican leadership in the House and Senate will see to that. But we’re a big step closer after credible reports indicate that in February Trump asked Comey to drop an FBI investigation into former national security adviser Michael Flynn.
“I think we’re in impeachment territory now for the first time,” said David Gergen, a former White House aide to both Democrats and Republicans, including Nixon, on CNN. And Florida Democratic Representative Ted Deutch wrote on Twitter: “Asking FBI to drop an investigation is obstruction of justice. Obstruction of justice is an impeachable offense.”
What would impeachment actually take? It’s a two-step process. If the House of Representative impeaches—or charges—a president, then the Senate holds a trial and either acquits or convicts. Any House member can start the process by alleging the president has committed “treason, bribery, or other high crimes and misdemeanors.” A simple majority of the House can approve an article of impeachment; two-thirds of the Senate must vote to convict. In a presidential impeachment trial, the chief justice of the Supreme Court presides.
A central question is what sort of crime, aside from treason and bribery, constitutes a high crime or misdemeanor. Broadly, what the authors of the Constitution had in mind were abuses of official authority. Obstruction of justice is a classic high crime. Federal criminal law is expansive on the topic. It punishes anyone who “corruptly or by threats of force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.”
The articles of impeachment against both Nixon and President Clinton included obstruction allegations. Nixon, accused of trying to stymie probes of the Watergate scandal, avoided impeachment by resigning in 1974. Clinton was impeached in 1998 for his testimony about the Monica Lewinsky scandal but acquitted in the Senate. (Nixon and Clinton faced Congresses controlled by the opposing party, underscoring that, unless Democrats gain more power, impeachment of Trump remains a long shot.)
In federal court, proving obstruction beyond a reasonable doubt can be tough. That’s in large part because the law requires the defendant to have acted “corruptly,” a reference to the person having provable criminal intent. According to reports about the Comey memo describing his Feb. 14 White House meeting with Trump, the president asked Comey to drop his investigation of Flynn because the former national security adviser “is a good guy” who didn’t do anything wrong. Before broaching the subject, Trump is said to have ushered other administration officials out of the Oval Office so he could speak to Comey privately.