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Impeachment past the politics

With all the talk about impeachment, do we actually know what is going on? U political science professor James Curry has some answers for us.

The impeachment proceedings against President Donald Trump are making headlines all around the world. But what is really going on? How much do we really understand about impeachment, and how is it coloring our views for or against it. James Curry, associate professor of political science at the U, looked at some of the questions being asked frequently about the history of impeachment, the current process and what could happen next.

How common is impeachment?

Successful impeachments are not terribly common. Just two presidents have been impeached (Bill Clinton and Andrew Johnson), with one more (Richard Nixon) resigning before the House of Representatives could finish the job. However, Congress has the power to impeach not just presidents, but any federal official, and has impeached 15 federal judges (most recently in 2010), one cabinet secretary (William W. Belknap in 1876) and one U.S. senator (William Blount in 1797). You can see the history of all impeachments on the House website. Notably, just eight of these individuals were convicted by the Senate and removed from office.

At the same time, impeachment attempts are more common. Most presidents in recent history have been threatened with impeachment, had impeachment resolutions drafted against them by some members of Congress, or saw committee hearings held that discussed potential impeachment. Just among recent presidents, serious impeachment threats and discussions were relevant for Barack Obama, George W. Bush, George H.W. Bush and Ronald Reagan.

What is the impeachment process? 

The impeachment process is not very well defined. Any member of Congress can introduce an impeachment resolution that would be referred to the House Committee on the Judiciary for consideration. Committees and other entities in Congress can also investigate the president or any other federal official with impeachment in mind, with or without an impeachment resolution having first been introduced, considered or voted upon.

Beyond the Constitutional provisions that give the House of Representatives the sole power to impeach, and the Senate the sole power to try all impeachments (with a two-thirds vote required for conviction and removal), very little else about impeachment is set in stone, and even just among the few presidential impeachment efforts in American history, the specific approach varied.

But, generally, the process goes something like this: Investigations are held by one or more committees, an impeachment resolution is at some point considered by the House, the Judiciary Committee is charged with drafting and approving (or disapproving) of articles of impeachment, which are then forwarded to the floor of the House of Representatives to be voted on by all members. If articles of impeachment are agreed to by the House, the Senate proceeds with a trial on the basis of these accusations.

For presidential impeachments, the chief justice of the Supreme Court presides over the Senate during the trial. The House of Representatives sends “managers” (selected by the Speaker of the House) over to Senate to serve, effectively, as “lawyers” for the prosecution. The president can send whomever he wishes to serve as “lawyers” for the defense. A trial pursues with the Senate serving as the jury. When the trial is over, the Senate votes. If the Senate convicts the president on any article of impeachment with a two-thirds vote in favor, the president is removed from office and the vice president is sworn in as the new president.

Most arguments that are being made about whether or not this current impeachment process is following “the rules” rely on a false assumption that there is a specific and concrete set of rules impeachment has to follow. There isn’t.

Who makes up the rules? 

The “rules” that guide impeachment are largely set by the Constitution and by precedent. Generally, procedures developed over time as the Congress had to consider impeachment for various federal officials. However, the “rules” are not so concrete that we can expect the process to unfold in the exact same manner every time.

Where are we in that process?

Right now we are nearing the end of the House of Representative’s general impeachment process. The House Judiciary Committee has drafted articles of impeachment, considered them, and voted to approve them. They now go to the House floor for consideration.

What are the charges? 

The House of Representatives is currently considering two articles of impeachment. The first alleges that Trump abused the power of his office by pressuring Ukraine to assist him in his re-election campaign by damaging potential rival candidates for the presidency in 2020. The second charges Trump with obstruction for blocking the release of documents and the testimony of executive branch officials subpoenaed by the House in connection with their Ukraine investigation and subsequent impeachment inquiry.

Why are they impeachable offenses?

For the most part, these are impeachable offenses because the House is making an argument that they are. The Constitution’s definition of impeachable offenses is so vague (“Treason, Bribery, or other high Crimes and Misdemeanors,” Article 2, Section 4) that any precise definition of what is and what is not an impeachable offense is unlikely to ever exist. So if the House concludes that an action by a president or other federal official is an impeachable offense, is it by definition so. It is up to the Senate to decide if that accusation warrants conviction and removal from office.

At the same time, proponents of impeaching Trump have frequently pointed to writings by some of the Founding Fathers regarding their views on impeachment. In particular, Alexander Hamilton’s writings about impeachment in the “Federalist Papers” has received some attention because, in defending and explaining the decision of the Constitutional Convention of 1787 to provide Congress with impeachment powers as it did in the Constitution, he gives a broader explanation of what impeachment is for. Across the 65th and 66th essays in the “Federalist Papers” he noted that impeachment should “proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust,” and in particular raises the issues of foreign meddling in our domestic affairs as one important thing impeachment could or should be used to guard against.

This is not only more specific than the Constitutional language, but also explains impeachment as not just something to be used to remove federal officers who have committed literal crimes, but also to remove those who have violated the public trust, abused the power of their office, or threatened the constitutional order. For proponents of impeaching Trump, the argument is that this is exactly what he has done.

How long will the impeachment take? 

The House of Representatives will, barring some surprise, vote to impeach the president before Christmas. Senate majority leader Mitch McConnell has signaled that the Senate will proceed with a trial sometime after the holidays. But exactly when, and how long the trial will last is not yet clear.

The impeachment trial of Clinton took place over the course of about five weeks in 1999. In early January of that year, the Senate welcomes the counselors on each side and adopted rules for the proceedings. In mid-January, the House managers presented their case over three days. About a week later the defense presented its case over another three days. Following that, senators questioned the lawyers on each side for a couple of days. In early February additional evidence was provided by the House managers. On Feb. 8, closing arguments were made by each side. The Senate voted on the charges on Feb. 12 after a few final days of closed-door deliberations.

Is impeachment actually just an attempt to overturn the results of an election? 

No. This argument makes little sense. If Trump were impeached and convicted, Hillary Clinton would not be installed as president. Installing the loser of the election as the winner would be “overturning” the results. This is, essentially, a political argument by defenders of the president as part of their attack on the process of impeachment as generally unfair. If you were to follow their logic, no president should ever be impeached because it would “undo” the prior election.

Is it a foregone conclusion that the Senate will not convict due to the Republican majority? If so, why impeach at all?

Barring some unexpected turn, it is hard to imagine that the Senate will vote to convict Trump. It is hard to even imagine that a majority of senators will vote for conviction and removal on either article of impeachment.

But this does not mean that impeachment is not worthwhile or meaningful. Part of the motivation for impeachment is a belief that if the president’s actions are not addressed and disapproved of forcefully by Congress in some way then it creates a precedent by which it would be ok for future presidents to take similar actions, or worse. This balance of power battle between the legislative and executive branches is necessary for our constitutional system. In fact, the Founding Fathers intended it this way.

Each branch of government is expected to check the others by exercising its full authority. Without any actions to “check,” one of the branches could grow inappropriately powerful, and throw off the delicate balance in our constitutional order. Even if the president is not convicted, the act of impeachment serves as a precedent and warning to future presidential officeholders that the Congress is willing to respond to perceived abuses of power by the executive. That is important.