FAQs: Impeachment

Okay, I’ll bite. Some readers have noticed that I generally avoid Mueller speculation on this website, an approach that stands in diametrical opposition to the media’s favorite obsession of the past 18 months. (Yes, it’s been exactly 18 months since Deputy Attorney General Rod Rosenstein appointed Bob Mueller as special counsel on May 17, 2017.) It’s not that I’m apathetic about it; it’s just that I think liberal media have made an art of premature and exaggerated conclusions while conservative media have carried so much water for the President in his quest to undermine Mueller that they’ll have collective chronic back pain for years.

However, with the string of recent filings, indictments, sentencings, and namings of many people in Trump’s orbit, it does feel like Mueller is on the verge of submitting his report. While few people know what Mueller will say, I’d wager money that it’ll be somewhere between the Democratic hope of “Here’s the proof that Trump colluded with Russia and committed many crimes” and the Republican hope of “total exoneration.”[1] This gray area is fertile ground for his possible impeachment, a strange process a website like PPFA should have written about long ago.

With that in mind, here are Questions about impeachment that are surely Frequently Asked somewhere:

To what extent is “impeachment” related to the word “peach”?

That’s a good, important question. The words are totally unrelated. The word peach comes from the Latin malum persicum, or Persian apple, perhaps because it arrived in Rome via Persia’s Royal Road. “Impeach,” however, comes from the Old French word empeechier which itself derived from Latin’s impedicare — to become caught or entrapped. If it’s this process which ultimately takes down Donald Trump, I can’t think of a better Latin root.

Thanks for the etymology, nerd. What does impeachment really mean?

(Harsh.) Contrary to what many people seem to think, if a president is “impeached” in the U.S., that does not mean he or she is removed from office. It just means that the House of Representatives has determined the president may have committed an impeachable offense and a trial in the Senate should determine his or her innocence. Then, it’s the Senate that decides if the president should be either acquitted of the House’s charges or convicted and removed from office.

What qualifies as an “impeachable offense”?

Our founding fathers had some fun with us on this one. Article II, Section 4 of the Constitution says: “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.”

It’s almost like they started their sentence with conviction then forgot where they were going with it. “Treason and bribery” are pretty clear concepts, but “High Crimes and Misdemeanors”? Not so much.

There’s a reason behind those tacked on vagaries. As with so many other things, the Constitutional framers disagreed on what should constitute (pun) an impeachable offense. Conservative voices thought that only seriously self-serving and/or nation-hurting criminal acts like bribery and treason should qualify, whereas others thought the threshold should be as low as “maladministration” — being bad at the job. Worried that this more liberal threshold might allow Congress to totally control the executive, a compromise was reached that built in the two explicit crimes but also added the unspecific “high crimes and misdemeanors,” which could be interpreted by a future Congress that wouldn’t be chained to the opinions of a few dozen sweaty men from 1787.

Wait… “sweaty”?

It was summer in Philadelphia, they wore jackets and vests, and the windows were kept closed to maintain secrecy. Yes, our founding fathers, as they constructed the framework of our federal government, were an odiferous, sweaty group of men.

FOCUS! Back to impeachment. How does it even work?

For a president to be removed via this process, there are three general steps that need to occur:

1. The House of Representatives’ Committee on the Judiciary determines if impeachment proceedings should begin. If they vote in favor of it, the impeachment process, like a regular bill, advances out of committee and goes to the House floor.
2. The House of Representatives debates whether the president’s conduct is impeachable, culminating in a vote. If a majority (currently 218 of the body’s 435 representatives) votes that the president committed an impeachable offense, they have then officially impeached the president.[2] However, the president remains president.
3. The president’s impeachment only means that the process finally moves to the Senate. Representatives from the House visit the Senate and present to it their “articles of impeachment” — their charges against the president. The Senate then holds a trial to determine the president’s innocence or guilt. The House is the prosecution, while the accused (the president, in this case) marshals a legal defense. Like other trials, witnesses can be called. Like other trials, there’s a judge. Unlike other trials, this judge is a humble jurist known as the Chief Justice of the Supreme Court. The Senate then votes on whether the president should be removed from office or acquitted of the charges. Unlike the House, which needed a simple majority to advance the impeachment, the removal of the president requires a Senate “supermajority” — or two-thirds of the chamber — which currently requires 67 of our 100 Senators.

Isn’t that fascinating?

It sure is.

Is there any precedent?

As with many political and legal processes in this country, the English were doing it before we said, “Yeeeeeah, we’re going to have to steal that.” (In 1376, Parliament impeached a member of the royal court four centuries before American independence, which, for a little while longer anyway, is a greater measure of time than from us to the Pilgrims’ Thanksgiving.)

Though it hasn’t been used since 1806, Parliament’s impeachment process should look familiar, since its bicameralism was deployed just like Congress’s.

1. Someone from the lower chamber — the House of Commons — would have to accuse an official of a crime.
2. The House of Commons would then deliberate and vote on whether to send it to the upper chamber, the House of Lords.
3. The House of Lords could then vote to remove the official.

Importantly, the monarch did not have royal assent in this process, so he or she(!) cannot interfere to protect someone who may have been working on behalf of the Crown.[3]

More fundamental than impeachment, the very concept that the head of state is not above the state itself was tackled by the English throughout much of their history, particularly in the seventeenth century — starting with Parliament pushing the ultimately rejected Petition of Right (1628) on King Charles I and culminating in 1688’s Glorious Revolution over King James II, which permanently established parliamentary democracy, not the Crown, as the more active political force of Britain.[4]

Show off. I meant American precedent for impeachment.

Oh, right. American. Impeachment proceedings can happen against any federal official. Most commonly the process has been used for judges and their annoyingly long lifetime tenure, but it’s rare. In the 230 years since George Washington became President, the House has initiated impeachment proceedings against a federal officer just 62 times. Of the 62, only 19 were impeached — 15 of them judges — by the House. Of those 19, the Senate convicted eight — all judges.

More relevant to today’s topic, two presidents have been impeached and faced trials in the Senate: Bill Clinton (for perjury and obstruction of justice) and Andrew Johnson (for being a real bastard). The Senate acquitted Clinton on both charges thanks to all 45 Democratic Senators voting to dismiss them, so he fell well short of the two-thirds requirement for conviction and removal. Johnson barely escaped conviction after 35 of the 54 Senators favored his conviction — one vote short of a supermajority. (Nixon was facing impeachment but resigned before it came to that.)

Is it weird that every Democratic Senator thought Clinton was innocent? Can we trust Congressmen to be fair?

No and no. The Democratic protection of Clinton was, of course, totally predictable. Though all Senators swear to uphold due diligence as arbiters, we have to remind ourselves that this process is more political than a typical court proceeding that cares about such trivial things like “facts” and “evidence.”

So, if the Mueller probe finds bad stuff, we can expect the Democratic House to consider impeachment, but what really controls the fate of the Trump presidency is not whether he’s truly innocent or guilty but whether 67 Senators will have the political will to remove him. Just like Democratic Senators protected Clinton, we can expect Republican Senators will protect Trump. Since the new Senate will have just 47 Democratic Senators, they’d not only need to vote in lockstep for conviction, but they’d also need 20 Republican Senators to desert the leader of their party — a leader who either helped many of them get elected or can help them get re-elected.

President Trump recently said the “people would revolt” if he were impeached. Thoughts?

Based on context, it sounded to me like he was using the word “impeachment” as a stand-in for “removed from office.” If that’s indeed what he meant, we have to consider what will have happened between now and that removal. Something would have come to light that alienated at least 20 Republican Senators. Up to now, Republican officials have been extremely supportive of the President, usually because they come from states and districts where Trump’s ardent supporters voted them in and expect them to support him or face the consequences next election. For 20 Republican Senators to vote for Trump’s removal, that would mean the popular will of their home states had turned on Trump, perhaps due to Mueller’s overwhelming evidence. To hope Senators follow this potentially damning evidence over the will of their voters is to hope a majority of elected officials spontaneously grow spines. Politics doesn’t work any other way.

So if Trump were removed from office, that would mean that the partisan climate had cooled to the point where plenty of Republicans felt comfortable removing him without retribution from his voters. Hence: no revolt.

However, if the Democrats impeach him in the House before the Republican-controlled Senate is ready to convict him, they indeed run the risk of losing their momentum from the midterms. Remember, Bill Clinton’s popularity climbed during his impeachment and acquittal. Many Americans were enjoying a humming economy and thought that the President’s opponents in the House were overreaching their authority in trying to take down a political rival. Sound familiar?

Thus, if Democrats prematurely impeach the President, they do indeed run the risk of a revolt, but a peaceful one. Revitalized Republicans and annoyed Independents might not only ensure Republican Senators acquit, but they might also go to the polls in 2020 to re-elect the President and give the House back to his party.

Some of the President’s supporters complain that the process so far has cost taxpayer money, distracts the President from his job, and that even if he has made minor transgressions he’s overseeing a growing economy and has helped the conservative cause, so why risk impeachment. Do they have a point?

Uncovering the ways in which the President has broken laws or how Russia may have interfered in American elections feels worth the resources of the American government. Even still, though Fox warns us that Mueller’s probe has cost $25 million, Fortune contextualizes that sum by noting that it’s outweighed by the $48 million brought in so far through sentencing Manafort and Cohen.

As far as legal protection stemming from the effectiveness of his presidency (a clearly debatable premise if you ask most Americans, but we’ll grant the premise for the sake of argument), I would think the founders favored checks and balances and limited government over political acumen and partisan successes. While short term gains might be welcome, the long-term health of the nation more depends on trust in our institutions. Just as the framers determined that “maladministration” isn’t enough to impeach the president, administrative success shouldn’t be enough to protect him.

If he were impeached and removed, what then?

As said earlier, it’s more a political trial than a real one, so Trump would not go directly to jail without his $200. However, no longer President, he would be vulnerable to any charges, including those cropping up from his business dealings in the southern district of New York, any Russian connections he may have nurtured and/or authorized during the campaign, or his purported ordering of Michael Cohen’s “veritable smorgasbord of fraudulent conduct” (an actual quote from the judge!). Just about every organization he’s been connected to — his private business, his campaign team, his inaugural committee, his administration, and more — has come under investigation.

Then again, President Pence, who would be sworn in directly after Trump’s removal, could pardon his predecessor as Ford did Nixon, extending our particularly long, national nightmare.

Is he protected from criminal and civil charges while in office?

That’s among the thornier Constitutional questions that can be asked. Without explicit language in the Constitution or a precedent set in our courts, it’s kind of guess work. So the short answer is: Constitutional scholars are torn. It’s an office which includes considerable privilege and blanket pardoning powers, so maybe.

Still, we do know for certain that if a president were considered guilty of a crime — say, hypothetically, he shot someone on Fifth Avenue — he could Step 1) be removed from office via impeachment; then, as an average civilian, Step 2) be tried, convicted, and sent to prison.

The question, however, is: what if, after the president shoots someone on Fifth Avenue (or supports a foreign government with whom he colluded to win an election over our own intelligence agencies), Congress chooses not to remove him from office? Could he be indicted, charged, and imprisoned then? The Office of Legal Counsel Justice Department has long suggested no, but Democrats might try to change that.

Where can I get more of this lazy Frequently Asked Questions gimmick?

• The Iowa Caucuses
• The Electoral College

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FOOTNOTES:

[1]I’m fairly certain Democrats will say that either A) Trump knew about Russia helping his campaign, which shows him to be treasonous, or that B) he didn’t know about all of his campaign’s connections to Russians, which shows him to be incompetent. And I’m also fairly certain that Republicans will say that the lack of direct proof between Trump himself and the Kremlin invalidates the investigation and confirms it as a witch hunt.

[2]That’s among the reasons why the Democratic takeover of the House was important. A Democratically-controlled House Committee on the Judiciary is much more likely to advance the issue to the House floor, and a Democratically-controlled House is much more likely to vote for impeachment.

[3]This last bit might contrast with the American approach, especially if one thinks the President can pardon current or past associates like Manafort, Flynn, Cohen, or one of the other 11 people in his campaign and family that were in contact with Russia.

[4]In between those moments was Parliament’s 1649 trial of King Charles, where, not totally unlike Richard Nixon or President Trump’s attorneys, he argued that it’s impossible for the sovereign to break the law:

• Charles insisted that “No learned lawyer will affirm that an impeachment can lie against the King.”
• Charles refused to enter a plea, calling the whole process illegal. He wanted to know “by what authority” such a trial could take place.
• In the Watergate scandal, after two years of President’s Nixon’s shifting denials that proved to be lies and cover-ups that helped end his presidency, Nixon later revealed what may have driven his actions: “when the President does it, that means it is not illegal.”
• Former Trump attorney John Dowd insisted, “The “President cannot obstruct justice because he is the chief law enforcement officer.”
• Future Trump attorney Rudy Giuliani believes a president cannot be indicted.
• Trump himself has tweeted that he has “the absolute right to PARDON myself” and that the Mueller probe is “an illegal Scam.”

Conspicuous similarities, to be sure. Nixon’s fate might seem ignominious, but Trump should prefer it to Charles’s. Though the former resigned to avoid impeachment, the latter’s head was severed from his body.