Impeachment is the process by which the House of Representatives votes by a majority to level charges against a federal official, in this case, the President. These charges are then brought to the Senate, where the 100 senators hold a trial, presided over by the Chief Justice of the Supreme Court, and vote on whether to convict. A 2/3 majority of 67 votes is required to convict, and a conviction will remove the official from office.
There are a number of Constitutional sources detailing the impeachment process:- Article 1, section 2, clause 5
- "The House of Representatives shall ... have the sole Power of Impeachment"
- Article 1, section 3, clauses 6 and 7
- "The Senate shall have the sole power to try all Impeachments... [N]o person shall be convicted without the Concurrence of two thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office."
- Article 2, section 2
- The President [shall have Power to grant Reprieves, and Pardons for Offenses against the United States, except in Cases of Impeachment."
- Article 2, section 4
- "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."
People, even in the House and Senate, call for impeachment on a fairly frequent basis. They have called for almost every President since Washington to be impeached, and yet, it very rarely actually happens.
The first federal official to be impeached was Judge John Pickering in 1803 for drunkenness and unlawful rulings, and he was promptly removed the next year after his conviction by the Senate. The first President to be impeached was Andrew Johnson in 1868 for violating the Tenure of Office Act and for questioning the legitimacy of Congress, but he fell one vote short of being removed from office in the Senate.
But what is an impeachable offence? We already know treason and bribery, but what qualifies as a high crime or misdemeanor? We've never had a President be removed from Office before, and so we cannot say what actually does qualify as one. Pickering was a drunk, but this is hardly a crime, whereas Johnson violated the law, and remained in office, so where is the line drawn?
The only other President to have been impeached (excluding Nixon, who resigned before impeachment articles could be voted on) was Bill Clinton in 1998 for perjury and obstruction of justice in relation to the Lewinsky scandal, which Special Prosecutor Kenneth Starr argued constituted impeachable offences, but the Senate disagreed, voting down both charges well short of the 2/3 majority needed.
Lawrence Tribe, in his testimony to Congress during the impeachment of Clinton, suggested that the use of the word 'other' in Art.2 s.4 of the Constitution is of importance - it suggests that high crimes and misdemeanors bear a significant resemblance to treason and bribery. He said it does not simply refer to any crime, but those which are enough to be worthy of impeachment, and must be against the State itself. In fact, there is no necessity for it to be a crime at all - a drunk President is acting legally, but should still be impeached for the good of the Republic, whereas a president who engages in oral sex in a state in which that is illegal has committed a crime, but is not worthy of impeaching. Instead, Tribe argues that for a President to be impeached, they must have done something that severely threatens the system of government, or constitutes a grievous abuse of official power. Does Trump asking foreign officials to interfere in a US election constitute such an act? It is likely that it does.
Donald Trump avoided removal from office in 2020 when he was acquitted by the Republican-run Senate. But this time, Senate Majority Leader (until the new Georgia senators are sworn in) McConnell has said that there is no way a trial could be completed before Trump's term in office comes to an end with the inauguration of President-elect Biden on January 20th, and so what is the point of impeaching him? Well, for one thing it sends a powerful symbol of accountability, and a condemnation of Trump's conduct in office, but it would also disqualify him from running again for President in 2024, which he has proposed doing.
The hyper-partisan impeachment process has been widely criticised, but in fact the 2021 impeachment of Trump has been the most bipartisan on record, with 10 Republican Representatives voting to impeach, and back in 2020, Utah Senator (and 2012 Republican presidential nominee) Mitt Romney became the first Senator in the history of impeachments to vote to convict a President of his own party. Currently, the situation in the Senate looks to be similarly historic, with Republican Senators Lisa Murkowski of Alaska, Ben Sasse of Nebraska, and Pat Toomey of Pennsylvania indicating a willingness to vote to convict, and others leaving their options open, including Republican leader Mitch McConnell.
The Supreme Court is acutely aware of the politicisation of the impeachment process, and it is, as argued by Chief Justice Roberts, not for the judiciary to involve itself in political acts. In the case of US v Nixon (no, not that Nixon), the Supreme Court held that it was up to the Senate to decide how to conduct a trial, and the Court would not get involved in the internal, political affairs of the process.
Donald Trump has made history as the first President to be impeached twice in the most bipartisan impeachment proceedings we have ever seen. The trial is likely to begin shortly after Biden's inauguration (though some have called for it to be delayed until after 100 days to allow the new President to move on his nominees and legislative agenda), and we are probably going to see a historic number of Republican senators vote to convict the former leader of their party, though the 2/3 majority necessary is a high bar to meet, and the President is likely to be acquitted of his charges of incitement to insurrection.
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