Inside D.C.

What is impeachment, really?

I get a kick out of listening to various reporters, pundits and talking heads trying to deal with “impeachment” as a process, what it is and what it isn’t.  This morning over the span of an hour scanning various so-called issue analysis programs, I heard three so-called experts on three networks describe impeachment in three generally incorrect ways. 

Impeachment per se is a legal process by which a legislative body has authority to bring charges of misdoing against certain senior government officials which could lead to the official losing office.  Impeachment is a tool used at both the federal and state government levels.  It is not a process used exclusively to oust a sitting president.

The Constitution gives Congress the authority to impeach and remove from office “the President, Vice President and all civil officers of the United States” – including those presidentially appointed, e.g., cabinet members, administrators, commissioners, etc. who have “significant authority,” including federal judges. Any impeachment target must be proved to have committed “treason, bribery, or other high crimes and misdemeanors.” While most prosecutors know treason and bribery when they see ’em, the Constitution is silent on the second half of the prosecutorial predicate, as they say, so a debate s rages around what exactly constitutes “other high crimes and misdemeanors” and does an alleged misdeed rise to that level.

Members of Congress cannot be impeached; each chamber polices and judges its own following its own rules, including the rare action of expelling bad actors.  In modern times, 1980 saw Rep. Michael Myers (D, PA) expelled for bribery in connection with Abscam.  Rep.  Jim Traficant (D, OH) was expelled in 2002 after being convicted of bribery, racketeering and tax evasion.

So, at the risk of stating the obvious, being impeached and convicted or not doesn’t protect an official from subsequent federal prosecution for any crimes.

Impeachment is only half the process.  The Constitution gives the House the sole power of impeachment, i.e., the authority to investigate and bring charges against an official.  This is a process similar to an indictment by a grand jury.  Charges are filed, evidence given, the chamber then votes on “articles of impeachment” and the official is “impeached” by a simple 51% majority vote of “those present and voting.”  Being impeached doesn’t by itself kick someone out of office.

The process then moves to the Senate, which is charged by the Constitution with conducting the trial portion of the process. If the president is the defendant, i.e., has been impeached by the House, the Chief Justice of the Supreme Court of the U.S. presides.  There may or may not be committee hearings, but the trial is generally considered to be floor debate leading up to a vote, a process which can take days or even weeks.  Following debate of the evidence provided by the House,  a two-thirds “supermajority” vote of those present is needed to convict.  If convicted, the official is removed from office.

Two sitting U.S. presidents have been impeached.  President Andrew Johnson (D) was accused in 1868 of violating the Tenure of Office Act, a law later deemed unconstitutional.  President William J. Clinton (D) was accused in 1998 of perjury and obstruction of justice.  Both men were acquitted by the Senate on all counts.  President Richard Nixon (R), accused in 1974 of obstruction of justice, abuse of power and contempt of Congress, resigned from office before the House voted on formal articles of impeachment. 

In the case of President Trump, we’re in phase one of the House’s formal investigation stage of impeachment. November 13 and 15 bring the first formal, public and televised impeachment hearings in the Intelligence Committee. Two State Department officials will testify during the first hearing as to what they know about Trump’s telephone call with the president of the Ukraine; the former U.S. ambassador to the Ukraine will testify at the second hearing.  Subsequent hearings will be held in the Intelligence panel, and are possible in the Judiciary Committee and possibly the Oversight & Government Operations Committee, as well.    

So, the constitutional process begins in earnest. My guess is the House portion of this process will be relatively quick — at least for Congress — with some arguing the House will vote on articles of impeachment before Christmas.  Happy holidays.   

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