Impeachment: Procedure and History in the United States

            With all the rampant discussion of impeaching President Donald Trump raging throughout the country, it becomes imperatively paramount to illustrate the constitutionally prescribed procedures—and their requirements—for impeachment as well as its history to clarify for the American People what exactly it is, how it works, and how it has been used in the past. That’s all this article is, an illustration. It’s not a defense nor a condemnation of President Trump. Keeping this in mind, let’s first turn towards what impeachment is under American Constitutional Law.

            As expressed by the US Constitution, the power to impeach, try, and remove a President are enumerated powers—an expressed or declared power of a branch of government—of Congress with each house having an assigned power and role.[1] For articles of impeachment to be introduced, their institution is required to take place within the House of Representatives.[2] These usually originate in the House Judiciary Committee where they are drafted, debated, and eventually voted on for recommendation to the full House.[3] After this, the articles of impeachment are placed on the docket—the legislative schedule set by the Speaker of the House—for a vote. For articles of impeachment to be successfully placed against the President it only requires a simple majority in the House.[4]

            However, impeachment is not a declaration of guilt; rather, its equivalent in the legal system is an indictment, which is a formal accusation that a person has committed a crime.[5] The definition of impeachment is as follows: “The President, Vice President, and all civil Officers of the United States shall be removed from Office on Impeachment for, and conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.”[6] While treason and bribery are specific, “high crimes and misdemeanors” is incredibly vague. Nonetheless, if the articles of impeachment successfully pass the House, a trial is held in the Senate with the Chief Justice of the Supreme Court presiding.[7] For conviction to occur, it requires a 2/3 thirds majority vote—meaning 67 of the 100 senators must vote in support of conviction.[8] Upon conviction, the removal from office as a result is effective immediately and is not subject to judicial review (See the Majority Opinion in Nixon v. United States 1993).[9]

            With the conditional procedures and requirements for impeachment illustrated, a quick overview of its use against sitting Presidents will be presented. The first sitting President to be impeached was Andrew Johnson for violating the Tenure of Office Act which required the Senate to consent to the removal of an executive official it confirmed.[10] This was passed over Johnson’s veto—meaning the bill passed both houses, was vetoed, and passed again with 2/3 majorities in both houses to override the President’s veto—by the Radical Republicans in both houses in an effort to remove Johnson from office.[11] However, while the House easily passed articles of impeachment, Johnson narrowly avoided conviction in the Senate by just one vote.[12] In the aftermath, the impeachment and trial of President Johnson was seen as a bitter partisan war between the Republican controlled Congress and the Democratic President who succeeded President Abraham Lincoln upon his death—Lincoln and Johnson ran as a unity ticket in 1864 known as the Union Party.[13]

            Thanks to this partisan tinge associated with impeachment against a sitting president, the process was never truly reconsidered until President Richard Nixon’s time in office. Due to his involvement in the cover up of Watergate, President Nixon faced Congressional investigations and immense public pressure, which only worsened after the discovery of tapes in the Oval Office used to record conversations with the President.[14] The “smoking gun tape” utterly ended Nixon’s chances of surviving impeachment as his own party was ready to buck him with the Democrats.[15] However, articles of impeachment were never voted on by the full house and a trial never held because Richard Nixon resigned from the Presidency.[16] Nonetheless, it’s extremely likely that President Nixon would’ve been impeached, tried, and removed from office.[17]

            The last prior case involved President Bill Clinton. The articles passed in the Republican controlled House cited perjury and obstruction of justice as the reasons for impeachment.[18] Clinton was later tried in the Senate but was acquitted.[19] However, what made Clinton’s impeachment and his trial different from Nixon’s—but much like Johnson’s—was it a zealously partisan squabble that cost the Republican’s control of Congress.[20] This was the last time that a sitting President had articles of impeachment nearly passed, or passed against them, and the last time a President was tried in the Senate. Nonetheless, the conditions surrounding a potential Trump impeachment are much different.

            Unlike all the prior Presidents who faced impeachment and a subsequent trial, President Trump has—for now depending on the 2018 election results—his own party in control of both houses of Congress.[21] This makes any possibility for articles of impeachment incredibly slim as it would require the articles to successfully make it through the Judiciary Committee. Even if the articles successfully left the Judiciary Committee, it would most likely require both Democrats and Republicans to vote for the articles to pass. As of now, it appears the Republicans will not back impeachment in the House.[22] Even if they did, it would be even more unlikely that Trump could be successfully convicted in the Senate as it would require 67 votes which would necessitate bi-partisan voting. So until the Democrats control one or both Houses of Congress, it remains unlikely any articles of impeachment or even a trial will occur. However, it’s possible the Republicans could dump President Trump with further developments in his Russian related scandals.[23] But that remains a development that must be witnessed with the passage of time. As stated before, impeachment could become a more viable option if the Democrats take control of the House, or Senate, or both. Nonetheless, the arguments for, against, and the consequences of impeachment will be taken up in articles soon to come.

Written By: Ani Manolatos

Image Credit: Wikipedia’s Page on the “Impeachment of Bill Clinton”

Endnotes

[1] Lee Epstein and Thomas G. Walker, Constitutional Law for a Changing America: Institutional Powers and Constraints, 9th ed., (Los Angles: CQ Press, 2016), 145; 195.

[2] Epstein and Walker, Constitutional Law for a Changing America: Institutional Powers and Constraints, 195.

[3] Epstein and Walker, Constitutional Law for a Changing America: Institutional Powers and Constraints, 195.

[4] Epstein and Walker, Constitutional Law for a Changing America: Institutional Powers and Constraints, 195.

[5] Epstein and Walker, Constitutional Law for a Changing America: Institutional Powers and Constraints, 741.

[6] Epstein and Walker, Constitutional Law for a Changing America: Institutional Powers and Constraints, 726.

[7] Epstein and Walker, Constitutional Law for a Changing America: Institutional Powers and Constraints, 195.

[8] Epstein and Walker, Constitutional Law for a Changing America: Institutional Powers and Constraints, 722-723.

[9] Epstein and Walker, Constitutional Law for a Changing America: Institutional Powers and Constraints, 103.

[10] David Kennedy, The American Pageant: A History of the Republic, 13th ed., (Boston: Houghton Mifflin, 2006), 495.

[11] Kennedy, The American Pageant: A History of the Republic, 495.

[12] Kennedy, The American Pageant: A History of the Republic, 495.

[13] Kennedy, The American Pageant: A History of the Republic, 469; 473.

[14] Kennedy, The American Pageant: A History of the Republic, 955-957.

[15] Kennedy, The American Pageant: A History of the Republic, 959.

[16] Kennedy, The American Pageant: A History of the Republic, 959-960.

[17] Kennedy, The American Pageant: A History of the Republic, 959.

[18] Kennedy, The American Pageant: A History of the Republic, 1008.

[19] Kennedy, The American Pageant: A History of the Republic, 1008.

[20] Kennedy, The American Pageant: A History of the Republic, 1008-1009.

[21] Eric Bradner, “Republicans keep control of Congress,” CNN, November 9, 2016, http://www.cnn.com/2016/11/08/politics/congress-balance-of-power-2016-election/.

[22] Liam Donovan, “When Will Republicans Dump Trump? Spoiler Alert: Not Yet, and Maybe Never,” Politico, May 16, 2017, http://www.politico.com/magazine/story/2017/05/16/james-comey-memo-donald-trump-republicans-215145.

[23] Alexandra Wilts, “Republicans Struggle to Navigate Chaos of Latest Trump-Russia Scandal,” The Independent, May 16, 2017, http://www.independent.co.uk/news/world/americas/us-politics/trump-russia-leak-republicans-navigate-tricky-path-a7739736.html.

Bibliography of Sources

Bradner, Eric. “Republicans keep control of Congress.” CNN. November 9, 2016. http://www.cnn.com/2016/11/08/politics/congress-balance-of-power-2016-election/.

Donovan, Liam. “When Will Republicans Dump Trump? Spoiler Alert: Not Yet, and Maybe Never.” Politico. May 16, 2017. http://www.politico.com/magazine/story/2017/05/16/james-comey-memo-donald-trump-republicans-215145.

Epstein, Lee and Thomas G. Walker. Constitutional Law for a Changing America: Institutional Powers and Constraints. 9th Ed. Los Angles: CQ Press, 2016.

Kennedy, David. The American Pageant: A History of the Republic. 13th Ed. Boston: Houghton Mifflin, 2006.

Wilts, Alexandra. “Republicans Struggle to Navigate Chaos of Latest Trump-Russia Scandal.” The Independent. May 16, 2017. http://www.politico.com/magazine/story/2017/05/16/james-comey-memo-donald-trump-republicans-215145.

 

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