What is Impeachment?
Whether or not President Trump should have been impeached is a political question with more than one answer. Less debatable, it would seem, is the fact that Trump was impeached. The White House did, at one point, attempt to take the official stance that Trump wasn’t impeached. The legal argument is outlined in this Washington Post article, which comes to the conclusion that Trump was impeached, even before the Articles of Impeachment were brought to the Senate. The larger debate this discussion represented revealed a misunderstanding among the American people of what it means for a public official to be impeached.
Impeachment is the process through which charges are brought against a sitting president of the United States; it is the bringing of charges, but not the conviction. Impeachment is one part of a larger governmental system, consisting of checks and balances. This is one of these checks, meant to ensure that government officials don’t sit above the law. It is not just a president who can be impeached; any federal official can be impeached. The purpose of impeachment is to ensure that government officials don’t sit above the law.
The process of impeachment itself takes place in the House of Representatives. There are four steps in the House: Resolution, Investigation, Vote, and (depending on the outcome of the vote), Impeachment. Resolution is the decision made by the House to pursue impeachment. After the resolution has been made, House Committees will investigate the charges. Then, the Judicial Committee either recommends impeachment or does not. If impeachment is recommended, the House votes. When the House votes, a simple majority, a vote greater than half, means the official in question has been impeached. Regardless of whether the official will later be convicted or acquitted, if the House votes to impeach, the official has been impeached. Impeachment is the process of charging an official, not convicting or removing them. Just like an individual citizen can be charged with a crime and convicted or acquitted at trial, an official can be impeached and then convicted or acquitted.
The trial in a presidential impeachment takes place in the Senate. There are four steps in the Senate, as well: Trial, Deliberation, Vote, and (potentially) Conviction. During the trial step, cases are presented for and against impeachment. In the deliberation stage, the Senate acts as a jury for the president. When the Senate votes, a supermajority consisting of two-thirds of the voters is necessary for conviction. If the president is acquitted, they may carry on their duties. If the president is convicted, they will be removed from office.
Brief History of Presidential Impeachment
Three presidents, including current sitting President Donald J. Trump, have been impeached. The 17th President of the United States, President Andrew Johnson, was the first president to face impeachment charges. President Bill Clinton, the 42nd President of the United States, was the second. Richard Nixon, 37th U.S. President, technically does not make this list because he resigned his office before he could be impeached. Johnson was impeached in 1868. He was impeached on charges of firing his Secretary of War in violation of a law Congress passed in 1867 to make the president replacing members of their cabinet without Congress approval illegal. In the Senate, Johnson was one vote short of conviction. The law he was impeached under, the Tenure Act, was overturned in a 1926 Supreme Court decision. Clinton was impeached in 1998 on charges of perjury and obstruction of justice for denying his affair with Monica Lewinsky while on record. After a five-week trial, Clinton was also ultimately acquitted.
It is important to note that, while three U.S. Presidents have been impeached, none have been convicted, even when the evidence of wrongdoing was clear. In the case of Johnson it could be argued that the Senate was enacting the power of jury nullification, a process through which a jury refuses to convict an obviously guilty defendant because the law they are guilty of violating is considered to be unjust. As the later Supreme Court decision illustrates, the law Johnson was guilty of breaking was unconstitutional. Still, at the time it was in effect, and it is obvious that Johnson broke it. Regardless of your politics, it is also clear to see that Clinton broke the law. He did lie during the course of an official inquiry. The larger perception of Clinton’s impeachment, however, seems to be that it was about his affair with Monica Lewinsky, rather than his lying under oath. Ignoring the perjury, many people didn’t think a marital affair should be an impeachable offense.
Trump’s Impeachment
Despite not actually being impeached, President Nixon gets a dishonorable mention because of how close he came to being impeached. Nixon came so close to impeachment that the Committee on Federal Legislation wrote a book simply titled The Law of Presidential Impeachment in preparation for the impending event. While we never saw the impeachment this book anticipated, it provides a useful roadmap to use to look at Trump’s recent impeachment.
The first thing the book does is establish the relevant constitutional clauses that have to do with impeachment. Article 1, Section 2 gives the House the power of impeachment, Article 1, Section 3 gives the Senate the sole power to try an impeachment, and Article 2, Section 4 outlines the scope of the power of impeachment, which include treason, bribery, and high crimes and misdemeanors.
How does this apply to the Trump impeachment? Trump was impeached on two articles. The first accuses Trump of abusing his power by encouraging Ukraine to investigate political rival, former Vice President Joe Biden, and the second accuses him of obstructing Congress during this investigation. The votes to impeach happened almost across party lines. A major Republican argument against impeachment was that none of these actions were crimes. This argument assumes, however, that a president can only be impeached for a criminal act.
Obstruction of Congress, if true, is absolutely a crime in the same way obstruction of justice is in a typical criminal procedure. Abuse of power may not technically be a criminal act, but it doesn’t matter. There is a legal scholarly consensus that, in the case of impeachment, “high crimes and misdemeanors” is not a phrase limited to literal actual crimes, and can in fact include a gross breach of trust or abuse of power. Article 1 of the Constitution, which states that criminal sanctions can occur after impeachment and that impeachment only removes one from office and does not constitute criminal charges, is the best legal evidence for this. English precedents, something that would have still been very much on the minds of the Framers of the Constitution, also lend toward a more open reading of the phrase.
It is not a question of whether or not abuse of power and obstruction of justice are impeachable offenses; rather, the question is whether or not President Trump is guilty of these offences. The majority of the (majority Democrat) House thought he was, or they wouldn’t have put the charges through. Evidently, as he was acquitted, the Senate disagreed. The House brought the charges forward. Normally, those charges would go to the Senate. In this case, Speaker of the House Nancy Pelosi pocketed the charges for a time. This was because Pelosi had legitimate concerns that there would not be a fair trial when the Articles of Impeachment reached the Senate. Senator Mitch McConnell (R-KY) said, “Everything I do during this [process], I’m coordinating with White House counsel.” Similarly, Senator Lindsey Graham (R-S.C.), said, “I have made up my mind. I’m not trying to pretend to be a fair juror here.” In a civilian criminal proceeding, these Senators would be recused from the jury for their bias. However, despite Senators having to swear an oath of impartiality, there is no equivalent measure in the impeachment process. While some might argue that the Senators have no legal responsibility to be impartial, as an impeachment is largely a political event, the book on impeachment by the Committee on Federal legislation holds that there is a “constitutional intention that impeachment not be treated as a partisan political weapon” (20). Holding the Articles of Impeachment was Pelosi’s only possible move in the face of an impeachment that was, by both her party and the Republican Party, politicized, but political pressure forced her to move them to the Senate regardless of the predictable outcome. The legitimacy of the proceedings given these self-admittedly partial jurors cannot be examined in an official capacity, because there is no power of judicial review in the impeachment process.
It is not my place as a journalist to pass judgement on these charges, though for transparency’s sake I will admit that my personal view is in favor of his guilt. What bears examining, however, is the process. Many people took issue with the idea that Pelosi withheld the Articles of Impeachment from the Senate because she wasn’t pleased with what she knew the outcome would be. There were people who thought it was unfair to withhold the Articles of Impeachment in hopes of a more agreeable Senate. That being said, there were Senators openly stating that they were unwilling to fulfill the role of an impartial juror that they were sworn to uphold during the process. What option does that leave? If nothing else, Trump’s impeachment has proven that the process of impeachment and conviction for a U.S. President is disturbingly easy to corrupt.
So What Now?
Call, text, email, or write to your representatives. You can find your representatives here. Regardless of one’s feelings about President Trump, history seems to show the impeachment process doesn’t work. No President has ever been convicted, even in cases where crimes were clear and known. Urge your representatives to examine the process and see if it needs to be revised.
Also, if you believe President Trump is guilty of criminal offense (encouraging foreign powers to investigate your political enemies is treason), contact Washington D.C. DA Timothy Shea at 202-252-7566, the main phone line for the U.S. Attorney’s Office, and urge him to press charges when Trump’s presidency reaches its conclusion.
The Dissonance 