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The Impeachment Process

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The impeachment trial of Donald Trump is one of only two such trials in living memory and introduced a foreign and a little confusing process. While there is a strong feeling on both sides regarding Trump’s guilt or innocence, there is still confusion over the impeachment process and how it developed into what it is today.

How does the impeachment process work?

There is a lot to consider to appreciate the complexity of the process fully. The case itself goes through several stages from its inception through the House of Representatives and the Senate before reaching a verdict. Then there are the rules about presenting the case and majority rule and the lack of standardization and questionable wording of the constitution. We also have to consider that this is a political process rather than a criminal one – which is something that outsiders often don’t fully realize.

In short, the process goes like this:

  1. Members of the House of Representatives can start a motion to impeach a president or other high-power figures if there is evidence of treason, bribery, high crimes, or misdemeanors.
  2. The case moves through the House and goes to a vote, resulting in a Senate trial.
  3. If that trial goes against the president on a two-thirds majority, they are out of office.
  4. That is the short-form answer to how the impeachment process works. The reality is a lot more complex due to questions over terminology, a lack of standardization, and each organization’s political leanings.

The impeachment process isn’t common in American history.

One of the reasons we tend to know so little about the impeachment process is that it is rare. There aren’t many cases of presidents going through an impeachment trial, and none that have been thrown out of office.

Also, there isn’t so much coverage of impeachment cases that fail to get off the ground or those against other public figures.

Most people with a basic grasp of modern American history know the following:

  1. Trump recently went through the impeachment process and was acquitted.
  2. Bill Clinton was also impeached in the 90s
  3. Richard Nixon resigned before he could be impeached.

However, there are other cases of impeachment charges against judges and others in higher positions of power. Also, President Andrew Jackson went through the process in a similar form back in the 1800s.

Impeachment of Donald Trump:

donald trump impeachment
During Donald Trump’s presidency, he was often warned about irregularities.
However, he went through the impeachment process over aid that was withheld.

In the case of President Trump in 2020, the abuse of power was the alleged withholding of $400m of military aid for Ukraine in an attempt to get information for his political campaign.

He was not only creating a bargaining chip to try and get dirt on his rival but potentially harming a country in conflict with Russia. There were also accusations of attempts to obstruct Congress by refusing to co-operate with the congressional inquiry.

Impeachment of Bill Clinton:

bill clinton impeachment
The impeachment of Bill Clinton was unusual as he wasn’t on trial for something that he did. Rather it was for lying about doing it. Monica Lewinski is now a household name.

In President Clinton’s case in 1998, the high crime was an accusation of perjury and obstruction following his affair with Monica Lewinsky. At the time, he claimed he was innocent and had never had sexual relations with her. But, there was evidence that not only had he lied, but he had also told Lewinsky to lie as well.

The process passed the House of Representatives but didn’t achieve the two-thirds majority necessary in the Senate.

Impeachment of Andrew Jackson:

andrew jackson impeachment
The impeachment case of Andrew Jackson is interesting because what he is accused of has been treated as normal in recent years.

President Andrew Jackson was accused of dismissing his secretary of war against the will of Congress. This is an interesting interpretation of a high crime and abuse of political power, considering how many dismissals and appointments have occurred in the Trump administration.

Again, the case made it to the Senate and was subjected to a vote. It failed to reach the required majority by one vote, allowing Jackson to stay in office.

Another of the charges related to rude speech that reflected badly on the position of president. This is an interesting charge when we consider the language used by modern-day presidents.

Richard Nixon:

richard nixon impeachment
Richard Nixon resigned before the impeachment process started. He was the first (and only) US President to resign from his position.

Richard Nixon may have pleaded that he was not a crook, but his decision to resign over the Watergate Scandal speaks volumes. We will never know if he would have been impeached or whether the Senate would have failed to reach the majority, just like Clinton, Jackson, and Trump.

The Senate Judiciary Committee did bring about a case to kickstart the impeachment inquiry.

Gerald Ford and William O. Douglas

Another interesting story is that Gerald Ford, a House minority leader in 1970, tried to initiate the impeachment proceedings against William O. Douglas, an Associate Justice. Despite a 90-minute speech on the House floor providing evidence for the case, the process didn’t pass that step.

What does it take to be Impeached?

The impeachment process allows the Houses of the US to hold presidents accountable for “high crimes.”

A common question regarding the impeachment process is what it takes to see a president face trial in the Senate. When there are leaders of the free world that appear to be involved with criminal activity, what actually qualifies them for impeachment?

Is the president guilty of:

a) treason

b) bribery

c) high crimes and misdemeanors

d) a combination of the above

e) none of the above

Members of the House of Representatives can put forward a case for impeachment when a president appears guilty of treason, bribery, or high crimes and misdemeanors.

As you will see from the process below, this requires a good case and a lot of evidence to progress to a trial. In some cases, as with the Trump cases, there will be more than one case presented. This is a chance for representatives to bring forward everything they have against the president for a greater impeachment chance.

What is a high crime?

One of the obstacles here is the idea of “high crimes and misdemeanors.” This term originates from the constitution but, like many aspects of that document, is open to interpretation. At its core, a high crime is an abuse of power.

In 1788 Alexander Hamilton spoke of “offenses that proceed from the misconduct of public men,” adding that they must be political in nature as they “relate chiefly to injuries done immediately to the society itself.”

Therefore, we are looking at misconduct that isn’t befitting of the position of president, which could have a damaging effect on the nation or others. For example, the Trump case centered around dealings with Ukraine. An argument here would be that this sort of political bargaining could affect the election and put Ukrainian citizens at risk due to the reduced funding.

The questionable definition of high crimes and misdemeanors also led to some debate over the Bill Clinton case. Clinton was impeached on purgery charges, and the crux of the matter was an extra-marital affair. Is this a high crime or low crime? Also, did the lie or the affair cause injury to society itself?

The impeachment process from the House Judiciary Committee to the Senate Trial.

The different stages of the impeachment process.

There are different stages to the judiciary process, from beginning a case for impeachment to the president being removed from office. So far, only three presidents have reached the final stage of the trial at the senate. None have ended the process with a guilty verdict.

The process is as follows:

1) Charges begin following evidence of one of the crimes mentioned above

2) An investigation by the House Judiciary Committee within the House of Representatives

3) A case is heard in the House and put to the vote

4) If successful, the case moves to the Senate

5) Here, a trial takes place, which results in a final verdict for impeachment or acquittal

It all begins with an investigation by the House Judiciary Committee.

First of all, six members of the house committees need to send their cases to the Judiciary Committee, with strong evidence in favor of conviction. It could take a while for this process to play out, as this involves a long investigation process to create the best possible case. Representatives can’t just put forward a case on a whim. There must be enough evidence and backing for the case to move forward through the process.

An interesting factor in all of this is Jefferson’s Manual. This includes rules that create a clear process for members to follow. An impeachment case can only begin when there are specific charges made on the floor of the House. This could be via a member’s resolution, a message from the president, a referral to the committee, or other key facts in an investigation. Any member with such a proposition to impeach is awarded high privilege in the House and jumps the queue over any other business of the day.

At this point, the Judiciary Committee needs to decide if there is enough of a case to move forward. If the case is too weak, the process is over, and the President remains in office without facing any trial. However, if the committee decides that there is sufficient evidence to present the case to the house, the case moves forward.

This is when the motion goes before its first vote.

Once the impeachment process reaches the house, the representatives must hold a floor vote on each of the articles presented. This is where it is so important for those initial committees to make a strong case. If they can present multiple articles of impeachment, which means multiple grounds for removal based on different accounts of high crimes, there is a greater chance of success.

From there, it all comes down to a majority vote. If most House members decide that there is evidence enough to impeach the President, the process moves forward.

Failure to achieve that majority means the end of the process, and the President remains in office.

So, what happens if there is a majority vote?

At this stage, the impeachment process will have passed the House of Representatives and then moves into the Senate. This is where the impeachment trial takes place. Those involved in the case have to give evidence either in support of or against the president to determine their guilt related to the original charges. The trial then ends with another vote between the members of the Senate.

Again, it all comes down to majorities. Two thirds or more of Senate members have to vote in favor of impeachment for the president to be removed from office. This means that half the Senate could be utterly convinced of the president’s guilt, but the democratic process means that they would remain in power.

Naturally, there are pros and cons to this majority approach. It is important to have a strong majority either for or against to show that there is limited doubt over the President’s next step. A guilty president shouldn’t remain in place just because one or two representatives voted in his favor. At the same time, innocent presidents shouldn’t have their reputation destroyed because of two representatives who wish to discredit him.

The impeachment process is political, not criminal.

It is important to remember that this is all a political process rather than a criminal one, which is why the Senate and Whitehouse can get away with so much that wouldn’t get past a court of law. This can get frustrating for citizens and all those on the outside that expect a clean, professional process with no signs of political bias and a clear conviction at the end.

Ideally, this whole process should be neutral, democratic, and free from any political influence. This isn’t the case for several reasons. We have to consider the following:

1) the purpose of the impeachment trial isn’t to decide on a criminal conviction

2) the process of the trial doesn’t follow traditional rules of a court of law

3) the process of the trial doesn’t follow standardized rules at all

4) the political power within the House and Senate can play a big role in outcomes.

The purpose of the impeachment trial is to gain a political outcome.

This distinction between a political and criminal trial is important when we consider the potential penalties. The Constitution states that the only penalties permitted are removing the accused from office and the disqualification from holding any federal office in the future. That is all. The impact of the result only has a bearing on the defendant’s political career. A defendant can’t face any risk of life, liberty, or property in this situation.

So far, we have seen what the constitution doesn’t say about the impeachment process. However, there are mentions of impeachment that have some bearing on cases today. Article II, Section 2, states that future presidents cannot pardon any past president found guilty in an impeachment trial.

Therefore, were Trump to be impeached and removed from office, he wouldn’t have then found himself in jail or at risk of losing any of his wealth or property. That is, of course, aside from his temporary residency in the Whitehouse. Instead, he would have lost his position, been banned from seeking federal office again, and then referred onto criminal charges where applicable.

The process of the trial doesn’t follow the traditional rules of a court of law.

Another area of inconsistency in this process is the Senate trial. At this point, it is decided if there is enough evidence against the current President to convict them of a high crime and remove them from office. Therefore, you would expect to see a professional, neutral courtroom trial with a strong prosecution and defense case and a neutral jury.

The reality here is that while there are prosecution and defense, with a chance to give evidence, make statements and present a case, the set-up is much different. There is also the fact that the jury that goes away to debate the findings are the Senate members themselves. The majority of which we know are currently Republican.

The process of the trial doesn’t follow standardized rules at all.

Furthermore, the rules for a Senate trial are created via a resolution for that specific situation. This essentially means that the Senate can adapt the process and make demands based on specific circumstances. There is no regulation and no clear attempt to follow any precedent. In some ways, this could make sense as impeachment trials are so rare and have to work within the case and the defendant’s parameters. It wouldn’t be right to use the same procedure from the 1868 Andrew Jackson impeachment process in the 1998 Bill Clinton process.

However, there was the sense that the Senate made things up as they went along with the Clinton case, potentially abusing their own power in the process. Perhaps we could have expected some regulation here, which might have followed on into the Trump case, but apparently not.

A lot of the issue with a lack of standardization and regulation stems from the Constitution. As was mentioned above, there is a lot of focus on an 18th-century document’s vague words open to interpretation. As there is little to no standardization for the process of impeachment in the Constitution, it is difficult to make a case that any modern-day process is unconstitutional.

Both the House and Senate have a majority rule: one to the left and one to the right.

Finally, we have to remember that both the House of Representatives and the Senate are led by members holding political affiliations with either leading party. This is called having control of the Senate or the House. This control could be highly influential in the results of impeachment trials.

Are representatives more likely to vote against a president they disagree with and want to see out of office? Or, will they leave politics aside and focus purely on the evidence presented to them? This level of control and political power is why it is so important for presidents to have supportive houses beneath them to pass laws and make all the “right” decisions. It is much harder to fight a Democratic house when you are a Republican president and visa-versa.

At the time of the Trump Impeachment case, the House of Representatives was Democrat-controlled and the Senate Republican-controlled. Would the case have passed through a Republican House of Representatives?

This lack of clear rules and regulations brings us back to an important point about Republican control of the Senate and bipartisan politics in these organizations.

There is nothing in the constitution to force the Senate leader to start an impeachment trial, even if the process passes the House of Representatives. Therefore, the Republican majority leader, Mitch McConnell, could have refused to hold the trial and thrown out the impeachment case. This notion wasn’t that extreme considering the fact that McConnell also refused a confirmation hearing for a Democrat Supreme Court vacancy in 2016.

The term high crimes and misdemeanors don’t make a lot of sense in modern society. The term actually comes from the English legal system of the 17th century, made its way into the constitution, and has stuck around.

How does the impeachment process work in practice?

Cynics would argue that the impeachment process doesn’t work in any clear defined manner. The alternate rules for each trial, interpretations of the constitution, and the right to refuse a trial are problematic.

At its core, there is a structure and process here that allows for an evidence-led case and a proper trial. The fact that no case has achieved the two-thirds majority yet is telling. But, it is also comforting to know that the House of Representatives has this process available to hold presidents to justice for any “high crimes” that may occur.

Sources:

https://avalon.law.yale.edu/18th_century/fed65.asp

https://www.nytimes.com/2019/09/24/us/politics/impeachment-trump-explained.html

https://www.bbc.co.uk/news/world-us-canada-39945744