There is much discussion of impeachment these days.
One school of thought that is frequently invoked is that impeachment is the primary or sole mechanism for addressing a President who is abusing power (I will refer further to the 25th Amendment below).
That school of thought posits that it would be inappropriate or invalid to attempt to indict a sitting President. While the issue of whether a sitting President can be indicted has not yet been ruled on by the Supreme Court, the general expectation is that criminal charges against the President will not result in indictments but rather in referrals to Congress to consider impeachment.
The problem with impeachment lies in the high bar of Senate conviction which the Constitution requires to be supported by two-thirds of the Senate. In today’s world, that means 67 senators must vote to remove the President from office. In other words, only 34 Senators are needed to prevent removal of the President by impeachment. Already, all the President requires to defeat removal by impeachment is support from a 34% minority of Senators.
But it gets much worse.
With two Senators from each state, in theory impeachment can be prevented with the 34 Senators that come from 17 of the 50 states. Given population distribution, the support required among the U.S. population for a President to defeat removal by impeachment could be quite small. Using 2013 population data as an example, the 17 smallest states have a combined population of 23,665,266 -- or only about 7.5% of the total U.S. population of 316,128,839.
Of course the entire populations of these states would not need to support the embattled President for their elected Senators to be committed to supporting the President -- only a solid electoral majority. Let’s say the electorate in their states support the President by a 60% to 40% margin. That could be plenty of support to swing the impeachment votes of those Senators. In that theoretical case, an embattled President would need the support of only 4.5% of the population to defeat removal by impeachment.
But of course this theoretical assumes that support for the President is concentrated in the smallest states. In the current political climate we know that small states like Vermont are not favorable to this Republican President. However, on the whole, support for Republicans -- who disproportionately support this President -- is over-represented in the smaller states.
So let’s take the 17 smallest states that clearly lean Republican -- Wyoming, North Dakota, South Dakota, Alaska, Montana, Idaho, West Virginia, Nebraska, Kansas, Utah, Arkansas, Mississippi, Iowa, Oklahoma, Kentucky, Louisiana, South Carolina. The populations of these 17 states sum to 41,718,178 or only 13% of the population. If those states need only a 60% support level for the President to swing their Senator’s impeachment votes, then only 8% of the national population could be sufficient to prevent removal by impeachment.
(Note that any 25th Amendment option is even more difficult as it requires a two-thirds vote of both houses to remove a President against his will.)
Of course, even the 17 Republican-leaning states I listed above have a few Democratic Senators so there would likely need to be some Republican Senators from other states to get over the 34 number -- but certainly those votes are available. And, of course, if the President has majority support in these 17 states he will also have some support in other states -- in fact, some support in every state -- so that his total support figures will be a higher percentage of the national population than just the support numbers required from the 17 or so states.
But the overall point is that if our Democracy requires impeachment as the means to remove a President whose actions are threatening that Democracy, then a pocket of committed supporters that represents a significant minority of the overall population can prevent that from happening.
That leaves two other means to address a President who threatens our Democracy. One is to defeat the President in the next Presidential election. Of course, that happens only once every four years. And it can be compromised by illegal abuses of power by the President and his administration that can influence the outcome of the election. (I won’t even get into the similar population distribution analysis around the Electoral College that allows minority support to win these elections -- at least the Electoral College requires only a simple majority instead of the two-thirds vote required for impeachment removal.)
The other means which we should continue to critically support is the criminal prosecution of the sitting President. No one should be above the law. The President is already in a uniquely favorable position to defend himself. He is the most powerful person in the country, with significant influence over the nation’s law enforcement machinery and virtually unlimited pardon power. If he cannot successfully defend himself in such an environment, then he must be quite guilty indeed.
In any event, impeachment is not an adequate means of addressing the situation. It would not take much of a despot to muster the needed votes to defeat removal by impeachment.