America in constitutional crisis

Editor's note: Mike Cormack is a writer, editor and reviewer mostly focusing on China, where he lived from 2007 to 2014. He edited Agenda Beijing and is a regular book reviewer for the South China Morning Post. The article reflects the author's opinions, and not necessarily the views of CGTN.

Donald Trump is only the third president to be impeached in the United States. His predecessors however do not cast a telling light on what might happen next. Andrew Jackson and Bill Clinton were both cleared by the Senate, but Jackson, who succeeded Abraham Lincoln, was despised by Congress and contributed to a war between the two branches of government. Meanwhile, Clinton actually reached new heights of popularity on the day of his impeachment (73 percent of the population thought he was doing a good job), and was cleared to continue his presidency, which historians continue to rate fairly highly.

What ought to happen next is Trump would face a trial in the Senate, with 66 of 100 needed to vote to convict. But Republicans, who have 52 seats, have in many cases declared their belief that the impeachment is merely a political maneuver by Democrats and said that they would clear Trump. Senate Majority Leader Mitch McConnell thus said, "I'm not an impartial juror … I'm not impartial about this at all" and that "Everything I do during this, I'm coordinating with White House Counsel," precluding any possibility of a fair trial. And should Trump be cleared, he would take to Twitter to claim "TOTAL EXONERATION" after a "WITCH HUNT" – never mind his previous complaints about the process.

Democrat House Majority Leader Nancy Pelosi saw this coming, however. She is no political neophyte, but rather someone with 32 years of experience in Congress, who understands power and its uses. She thus said that the impeachment articles will not go to the Senate unless a fair trial is granted. This means statements, witnesses, cross-examination. The speedy trial and exoneration sought by Trump and McConnell is thus Pelosi's to grant – and she is refusing to play ball. This will leave impeachment hanging over Trump, to be used as political leverage. McConnell has long refused to work with Democrats in any constructive way, using the Senate as a political power base to extract maximum partisan advantage. Democrats argue that the House has passed 400 bills which McConnell has refused to consider, thus weaponizing the chamber. Now Pelosi is effectively returning the favour.

This means the legislature and the executive, Congress and the presidency, are effectively at war with each other. The US Constitution fundamentally requires that the two bodies work together. The role of the president requires working with Congress so that it passes laws. But the partisan breakdown, which perhaps began under Clinton and reached new heights under Obama, has attained a new level here. The issue is not, as previously, of a partisan nature, of Democrat versus Republican, of desired political outcomes. It is about the fundamental powers of each body and their respective mandates. It is a constitutional crisis.

The schism thus leaves the American government worse than gridlocked. The branches are, as once with Andrew Jackson, at war with each other. There is no way Congress can work with Trump now. He will never sign any acts it passes. Similarly, Congress will never create any bills on anything Trump proposes. This leaves the United States with no effective operational federal government. And while important issues mount, from the trade war with China to the climate emergency, the United States is frozen, unable to act, a giant riven by internal sclerosis.

What next for Trump? He is, as he has been throughout his presidency, popular with his bedrock support, but alienating moderates, the unaligned and Democrats. His polling is steadily declining. Support for his impeachment is steadily rising, though not yet at the level of Richard Nixon prior to his resignation when it was clear his support had evaporated, with just 24 percent thinking he was doing a good job. Trump retains almost unanimous backing from Senate and House Republicans. Should he retain that then he may see out his term and could even perhaps win another.

There are other dangers lurking for Trump that could turn moderate Republican senators against him. First is his tax return. He has fought every step of the way to prevent their release, but the issue is due to be heard in the Supreme Court, probably between February and April 2020, with a verdict by June. Precedent suggests the court will favor release, though this is not guaranteed, given that the presidential campaign season will be underway by then. A lawsuit on emoluments – payments from foreign actors and governments – brought by the attorneys general of Maryland and the District of Columbia is being considered. His payments to adult actress Stormy Daniels, suspected of violating campaign finance laws, remain under investigation, even after the conviction of his former personal lawyer Michael Cohen. Any one of these would sink a normal president. But Trump is clearly not a normal president.

Regardless of the outcome in any of these issues, the conflict between Trump and Congress will remain until he is gone. Trump sees working with anyone cooperatively as weakness, but partnership is the presiding spirit of the American constitution. Impeachment is therefore the inevitable conclusion of the drift towards partisan enmity that has been building since the Clinton administration. Cohabitation cannot work. Yet impeachment only further gums up the government machine. Indeed, McConnell has professed his concern that "We could easily see the impeachment of every future president of either party." This is, of course, highly disingenuous, but also a warning. Endless partisan impeachment attempts may indeed follow. And if that happens, America's constitutional crisis may become institutionalized and permanent.