By: Sarah Johnson
On December 18, 2019, Donald J Trump made history by becoming the third president in the 230 year history of the United States to be impeached. The House of Representatives approved two articles of impeachment on abuse of power and obstruction of Congress. Jerry Nadler put forth US HRes755 on December 10th. This resolution is summarized as
Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors. This resolution impeaches President Donald J. Trump for high crimes and misdemeanors. The resolution sets forth two articles of impeachment of the President: (1) abuse of power by soliciting the interference of Ukraine in the 2020 U.S. presidential election, and (2) obstruction of Congress by directing defiance of certain subpoenas issued by the House of Representatives.
A Quick Run-Down on Impeachment and the United States
First, we’ll briefly discuss impeachment. Impeachment is a right afforded to the United States Congress (state and federal) by the constitution. Article I gives the House “the sole power of impeachment” and gives the Senate “the sole power to try all impeachments.” Article II of the Constitution states that the president “shall be removed from office on impeachment for, and conviction of, treason, bribery, or other High Crimes and Misdemeanors.” The precise meaning of the phrase “High Crimes and Misdemeanors” is not defined in the Constitution itself. The framers purposely did not use the term “maladministration” as grounds for impeachment and instead opt for the phrase “High Crimes and Misdemeanors”. The framers believed opening up the ground for impeachment to “maladministration” could lead to Congress impeaching a president because Congress did not believe they were doing a good job. In Federalist 65, Alexander Hamilton states impeachable offenses, or “Treason, Bribery and other High Crimes and Misdemeanors”, are “those offenses which proceed . . . from the abuse or violation of some public trust.” So, this phrase is generally understood to mean abuse of office that results in harm to the public, not necessarily violations of criminal statutes or crimes.
Impeachment can occur either at the state or federal level of government and is the process by which a legislature brings charges against a civil officer of government for actions alleged to have been committed qualifying them for impeachment. Impeachment on the federal level allows federal civil officers to impeach federal civil officers (including our country’s president and vice president), while a state level impeachment allows for the impeachment state civil officers (including the state’s governor). Once the House votes to impeach someone, that person is not technically “impeached” until the House delivers the passed articles of impeachment to the Senate. The Senate needs these articles in order to begin and conduct their trail. Officials who are voted to be impeached by either a state or federal House remain in office until the state or federal Senate comes to a verdict in their trial. If the official is convicted in the Senate trial, they will be removed from office, if they are not, they will not be removed. Our constitution requires that a two-thirds majority, or 67 senators, must vote “guilty” on at least one article of impeachment to remove someone from office.
Article I, Section 3, Clause 7 of the United State’s Constitution details the punishment for impeachment
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.
Essentially, this clause states that if an official is impeached, the defendant does not risk forfeiture of life, liberty, or property. Upon conviction in the Senate, the only penalties the convicted individual is subject to are removal from office and disqualification to hold any office of honor, trust, or profit under the United States.
How Did We Get Here?
That report, while not finding evidence that Trump had criminally conspired with Russia to help his 2016 campaign, did detail 10 possible instances of obstruction of justice committed by Trump personally. “If we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state,” wrote Mueller.
This started to change in the fall, after we learned that Trump had asked the Ukrainian president to investigate 2020 Democratic rival Joe Biden. Pelosi moved swiftly to hold a formal impeachment inquiry, announcing on Sept. 24 that Trump’s actions represented a “betrayal of his oath of office, betrayal of our national security and betrayal of the integrity of our elections.”
For part of this impeachment journey, there was a lot of pushback from Republicans and the White House due the the fact that the House pursued their inquiry and an investigation without a House vote to authorize the investigation. The White House counsel, Pat Cipollone, was correct in asserting that when examining historical presidential impeachments, the House “has never attempted to launch an impeachment inquiry against the president without a majority of the House taking political accountability for that decision.” In the past, the House “took political accountability” for the decision by passing a resolution authorizing an inquiry – thus making people vote for or against the inquiry before findings were released.
For Nixon, 22 different resolutions were proposed relating to a presidential impeachment inquiry. On February 6, 1974, the House Judiciary Committee was authorized to launch a formal impeachment inquiry against the president via the passage of a House resolution passed 410–4. The resolution which passed gave the investigating committee subpoena power and validated the investigation performed on Nixon the year before the resolution was passed, but before the findings of the in-query were made public. Representative Peter Rodino, chairman of the House Judiciary in 1974 during the Nixon impeachment, said passing a resolution was “a necessary step” in order to give the investigating committee subpoena power to carry out the inquiry. For Trump’s impeachment, the relevant committees already have the necessary subpoena and staffing authority needed to carry out the inquiry, a reason provided as to why a resolution did not need to be passed.
There has also been pushback from Republicans that the House did not allow for Trump’s lawyers get to participate in the House impeachment hearings. Lawyers for both Nixon and Clinton were involved in the House impeachment process, but this is not required. Impeachment is setup to allow the House to perform an inquiry, and then allow the Senate to hold a trail. Many believe the idea for this is to allow for an investigation, but then allow for the accused to defend themselves in the trail by introducing their own evidence and witnesses. After this was raised by Republicans, the House Judiciary Committee adopted a rule to allow Trump’s lawyers to respond to evidence and testimony in writing.
Just before the House voted on the articles of impeachment, Trump sent a remarkable six-page letter to Speaker Nancy Pelosi.
US HRes767 put forth the rules for the hearing, allowed for one hour of debate on the rule itself, followed by an allotted six hours of debate on the two impeachment articles. During this hearing, many Republicans proposed motions which many Democrats believed were stalling tactics, these motions forced a time-consuming vote. Wyoming Republican, Liz Cheney, also (unsuccessfully) pushed for roll call votes to be taken on the articles. She stated, “I ask unanimous consent to amend H.Res. 767, to provide for voting for a manual call of the roll so the American people can see precisely who is — members should be required to stand and identify themselves openly and on camera on the question of adoption of these articles of impeachment.”
Here is how the vote on agreeing to H.Res. 767 looked by district (green = yes, red = no, yellow = didn’t vote, white = empty seat)
For an interactive version of this information see this scorecard.
Where we Currently Are.
Currently, we are at a standstill. After the House passed the two articles of impeachment, Speaker Nancy Pelosi decided to refrain from transmitting the articles of impeachment “indefinitely“. The reason she is doing this, and receiving support for doing this by many other representatives, is to wait until Senate Majority Leader Mitch McConnell (R-Ky.) sets rules for the trial that are accepted by Senate Democrats. Why is this seen as a good idea to Democrats? Well, McConnell has been vocal about wanting a relatively short trial, where House managers present the case for removal (aka present the articles officially to the Senate and make their opening statement) and then allow for Trump’s defense team to rebut it followed by a summary dismissal. He has also stated he does not want any witnesses to be part of the trail, saying. The Senate needs 51 votes to agree on the trial rules and to “compel the attendance of witnesses” and “enforce obedience to its orders” for a trial. If 51 people do not vote in favor of a rule or witness, it will not be accepted as part of the trial.
The Constitution does not specify the timeframe in which the approved impeachment articles must be given to the Senate. The House must actually send the articles and managers to the Senate to prosecute the impeachment, and then the Senate must actually hold a trial and reach a decision for someone to be impeached. The current status we are in because the House has not delivered the articles to the Senate is the House has vote to impeach Trump, Trump has not yet been impeached by the House. “Impeachment” under the Constitution means the House has presented approved articles to the Senate.
Just like there is no defined requirement for when the House must turn the articles of impeachment over to the Senate, there is no explicitly defined requirement for when (and some would argue if) the Senate must hold an impeachment trial. If the Senate failed to hold a trial after impeachment articles have been sent to them, they would deviate from what many view as the Constitution’s clear expectation. The first Senate Impeachment Rule from 1868 states:
Whensoever the Senate shall receive notice from the House of Representatives that managers are appointed on their part to conduct an impeachment against any person and are directed to carry articles of impeachment to the Senate, the Secretary of the Senate shall immediately inform the House of Representatives that the Senate is ready to receive the managers for the purpose of exhibiting such articles of impeachment, agreeably to such notice.
The constitution does provide three rules for a Senate impeachment trial: for an impeachment trial of a president, the trial must be presided over by the chief justice presides (this is not a requirement for any other civil officials); each senator must be sworn with a special oath to do “impartial justice” (similar to the way jurors take an oath); and a two-thirds vote is required to convict on any article of impeachment. When speaking about a Senate impeachment trail and serving on the “jury”, McConnell said that he is “not an impartial juror” because impeachment is an inherently political process. This is partially true, the Framers did state that impeachment is a political process, not a criminal one, but I do not believe they meant “impartial justice” as “partisan decision making”.
When it comes to the defense, Trump is under no requirement to attend the trial, and he cannot be compelled to testify. His lawyers will deliver their opening statement after the House delivers theirs, and then they are tasked with defending the president throughout the trail – including questioning witnesses. The Senators, aka jurors of the trial, are not allowed to speak during the trail. If Senators have questions, they submit them in writing to be asked by the chief justice who has the authority to decide if they should be asked. If they choose to not solely decide on a question, they can make the the full Senate vote on the admissibility of a question.
Trump has been fairly vocal about his impeachment throughout the whole process, the day he was impeached he told reporters, “I don’t feel like I’m being impeached because it’s a hoax, it’s a setup. It’s a horrible thing they did.”
Cover Photo by Tingey Injury Law Firm on Unsplash
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