We are witnessing history, Resisters! And this time it isn't a question of what the definition of "is" is.
Some of my readers have dim memories of the two of our country's three presidential impeachment proceedings that happened in our lifetime; some of our lifetimes don't even include those memories. I've been asked: just what exactly happens in an impeachment? Gather round the Constitution, kids, let's have a look!
First a quick glance back. The United States Congress has undertaken three previous impeachment proceedings against U.S. Presidents. Two presidential impeachments occurred. What we remember about Nixon's "impeachment" was just a threat of impeachment. He resigned before he could be impeached. The other two were Andrew Johnson in 1868 and Bill Clinton in 1998. Both were acquitted.
President Andrew Johnson's case occurred during a similarly turbulent time in our history. The Civil War had just ended, and Johnson was at odds with Congress in protecting newly freed slaves. His impeachment surrounded his repeated vetos of bills that were written to protect freemen. He was acquitted not so much because the Senate agreed with his policies but that they wanted to preserve the separation of powers and the President's power of the veto.
President Bill Clinton was impeached for lying under oath. Specifically, he lied about a sexual relationship he had with an intern. He, too, was acquitted by the Senate in February, 1999.
As for the aborted Nixon impeachment, the House began a formal impeachment inquiry in February, 1974, a year after Senate investigation into Watergate had begun. In July, 1974, the House Judiciary Committee forwarded three articles of impeachment to the full House of Representatives. They were for obstruction of justice, abuse of power, and contempt of Congress. A couple other articles were being debated, and more evidence emerged, including the "Smoking Gun Tape" which was proof of his complicity in the Watergate cover-up. Days after the Smoking Gun Tape transcript was made public, Nixon resigned.
What's all this? Inquiry? Articles? Acquittal? What's impeachment all about, anyway?
Impeachment is the government equivalent of the indictment phase of a criminal charge. Article One of the United States Constitution gives Congress the power to bring charges against any sitting Federal officer, including the President.
The framers of our government were forward-thinking. They knew they had a gem for the first President, but as Ben Franklin noted, "Nobody knows what sort may come afterwards." And so, they crafted language into the Constitution that allowed for the removal of a bad apple.
Here is what the Article One of the United States Constitution states about impeachment:
The House of Representatives ... shall have the sole Power of Impeachment.
— Article I, Section 2, Clause 5
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present.
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
—Article I, Section 3, Clauses 6 and 7
[The President] ... shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
—Article II, Section 2
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.
—Article II, Section 4
There's a lot that isn't stated in the Constitution, for example, how "high crimes and misdemeanors" are defined. This nebulous language makes plain that an offense does not need to be an outright criminal offense for impeachment to proceed. Alexander Hamilton in Federalist 65 said this when defining what offenses can be grounds for impeachment: "the misconduct of public men, or in other words from the abuse or violation of some public trust." Offenses such as these are "political, as they relate chiefly to injuries done immediately to the society itself." Basically, as then-House Minority Leader Gerald Ford commented in 1970, "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history."
And there's no cookbook in the Constitution for the actual impeachment process, but Congress has adopted rules, and here is what happens:
Step one: Impeachment inquiry (this is where we are now). One or more House Committees gathers evidence, issues subpoenas, and brings witnesses to testify. In our case, several committees are conducting investigations, as they have been doing for months. The House Intelligence Committee seems to be taking lead on the Ukraine scandal.
Step two: If evidence is sufficient, the Committee drafts articles of impeachment outlining the offenses and sends them to the full House for a vote. Each offense (abuse of power, obstruction of justice, bribery, for example) has its own article of impeachment. House Members vote on each article. If a simple majority votes to impeach, then the President is considered impeached, similar to a criminal indictment. If there is not a majority vote to impeach, then nothing happens. The President* is not impeached, and he stays in office, and we go on.
If the House votes to impeach, then the articles of impeachment go to the Senate for trial. To compare to a criminal trial: there are House attorneys that play the role of prosecutors. The President* will have defense lawyers, and the Senate acts as the jury. Presiding over the trial is the Chief Justice of the United States Supreme Court. In our case, this is Chief Justice John Roberts. The ground rules of the proceedings, again not defined by the Constitution, are decided upon and passed in a resolution prior to the trial.
After evidence is presented and defended, then the Senate votes. In order for the President to be convicted and removed from office, a 66% super-majority must vote to convict. In our case, that's the tricky part. Republicans control the Senate, and they may very well vote to acquit. If the President* is acquitted, then he remains in office. But the IMPEACHED stamp remains on his permanent record.
Right now, more than half the members of the House, one Independent and 233 Democrats, support an impeachment investigation. There are 12 Democrat holdouts. Eleven of those represent Trumpish districts. Once the investigations are complete and articles of impeachment are drafted, expect the number voting in favor of impeachment to go up.
We must resist the temptation to compare this case to previous impeachment proceedings. This case must be taken on its own merits. It's tempting to compare to the most similar case, that of Richard Nixon. But even then there are stark differences. For one, Nixon actually felt shame, and he considered the public's esteem of the Office of President when he decided to resign. There is no comparison to the sociopath that we now confront.
There is a lot of speculation about what may or may not happen. We must take one step at a time and wait for the evidence. No matter the final outcome, this is proceeding as it must. The House has the serious duty to defend the Constitution. I'm confident that the evidence will be overwhelming and the Senate will have no choice but to convict. But if not, we deal with those outcomes then. As I said in a comment on my previous post, let's be optimistic. We have no way of knowing what will happen. Let's hold on to the more positive outcome. There is no cost for Hope. Hang on to it.
"The genius of impeachment lay in the fact that it could punish the man without punishing the office." – Arthur M. Schlesinger, Jr.
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