A law professor weighs in on how Trump could beat impeachment

Following is a transcript of the video. 

Narrator: In July, President Donald Trump withheld nearly $400 million in aid to Ukraine. Later that month, on a phone call, Trump asked the Ukranian president to investigate Joe Biden's son Hunter. 

Bill Weld: Talk about pressuring a foreign country to interfere with and control a US election. It couldn't be clearer. And that's not just undermining democratic institutions, that is treason. It's treason, pure and simple.

Narrator: In September, after a whistle-blower complaint surfaced, House Speaker Nancy Pelosi opened a formal impeachment inquiry. With the inquiry underway, could Trump be charged with treason? 

James Sample: So, Article III, Section 3 of the Constitution defines treason as specifically limited to levying war against, uh, or the nation or aiding and giving comfort to the nation's enemies.

Narrator: That's James Sample. He's a professor of constitutional law at Hofstra University.

Sample: The Constitution is then backed up by a federal statute, uh, under United States Code Title 18, uh, that says that the penalty for treason is death or not less than five years imprisonment and not more than life imprisonment without the possibility of parole. There are some fines associated with it, but any person who is convicted of treason, and I think most pertinent for current circumstances, uh, permanently loses their right to run for or hold office in the United States government.

Narrator: Treason is primarily associated with espionage cases, and convictions are rare in America. The most recent conviction happened in 1952. In Trump's case, a treason conviction seems unlikely. He didn't wage war, and Ukraine isn't an enemy of the United States. Plus, there's one other caveat. 

Sample: Article II of the Constitution gives the president plenary power to deal with foreign affairs.

Narrator: But that doesn't mean Trump's actions didn't violate the Constitution. 

Sample: The lack of checks and balances here is as troubling as the underlying alleged offense. Certainly the alleged offense, withholding aid to a foreign nation, a American military aid to the tune of hundreds of millions of dollars in exchange for in essence, opposition research and appending United States election and interference in the United States election.

I don't think there's any evidence that what Donald Trump did here is treason. However, it could very credibly be characterized as a high crime and misdemeanor

Narrator: Which is a general abuse of power by a high-level public official. And, like treason, a high crime and misdemeanor is grounds for impeachment. 

Sample: The only way that the treason charge could meaningfully be pursued against President Trump would be through the impeachment process… (2:36) but historically high crimes and misdemeanors is a term that offers a whole lot of more, a whole lot more constitutional wiggle room than treason does.

Narrator: The impeachment process is a political process, not a criminal one. It was set up that way in the Constitution as a means of checks and balances.

Here's how the process works… first, House committees present their strongest cases against the president to the Judiciary Committee or a select committee. 

Sample: If the committee votes it out of committee, then the House will vote as a whole, uh, on art, on articles of impeachment with particular charges, uh, in those articles. That's a simple majority vote in the house. If every Democrat were to vote in favor of those articles, that would be enough. 

Then if you got that simple majority, it would go over to the Senate. In the Senate. Chief Justice John Roberts would preside over the trial that takes place in the Senate, it would require a two-thirds majority. So you'd really need to get to 67 senators in order to convict. 

Narrator: And that two-thirds majority is highly unlikely. 

Sample: Assuming that all Democrats in the Senate voted in favor of conviction, you would need 20 Republicans to agree with them in order to convict Donald Trump. So the best defense Donald Trump will have is that he has, in essence, an extraordinary bulwark against conviction.

Narrator: But getting to that point is very rare. 

Sample: We've only reached that point 19 times in American history, uh, and only twice with sitting presidents, uh, you know, Andrew Johnson and then Bill Clinton. And neither of them of course, was convicted.

Narrator: Even if the impeachment process doesn't lead to conviction, its intense scrutiny could influence a resignation, like in Richard Nixon's case, or impact public opinion leading into the 2020 election. 

This video was originally published in September 2019.

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