Let’s Make An Impeachment!
There have only been two presidential impeachments – Andrew Johnson and Bill Clinton, and both were acquitted. Richard Nixon resigned before he could be impeached, but the threat of it (and the surety of his conviction) produced the desired outcome: Bouncing his ass out. That said, I see another impeachment in the not-too-distant future. Dare to dream!
The power of impeachment is an enumerated power of Congress in that it is provided by the Constitution. Article II section 4 states: “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.”
The process itself is much like a grand jury indictment, followed by a trial on the charges. The House of Representatives acts as the grand jury. The House draws up what are called the Articles of Impeachment – the list of charges brought against the President. Each charge is a separate Article. Once those are established and agreed upon, a select group is appointed to act as prosecutors (called managers).
Then the Articles move from the House to the Senate. The Senate acts as the jury, and the Chief Justice of the Supreme Court presides. At this point, the impeachment process is very much like a trial – the Senators take an oath to judge honestly, witnesses are sworn, and the President’s counsel can cross-examine. This part of the procedure is called the Hearing. After the Hearing, deliberations are conducted privately. There must be a two-thirds majority from the Senate for removal to take place. However, unlike an actual trial, conviction by impeachment can only result in removal from office – even if the Articles involve a criminal act, it is not a criminal trial. So there is a limit to the power of impeachment.
Let’s talk about what “Treason, Bribery, or other High Crimes and Misdemeanors” means. Treason and bribery seems straightforward enough, but just for funzies I’ll tell you what those entail.
Treason involves any conduct that undermines the government or the nation’s security. The United States Code states that “whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason.” Historically, the most popular punishment for treason was death. So don’t do anything treasonous! Also, stay in school, don’t do drugs. Everyone’s favorite original traitor, Benedict Arnold, did some serious damage by collaborating with the British during the Revolutionary War. What a dick! Also, no relation. He kinda got away with it too – he officially joined the British Army, so he was beyond prosecution. Treason is probably the only crime that, if committed before taking office, would be an impeachable offense.
Bribery is the exchange of money, goods or any other recompense in order to influence the actions of the recipient, in this case, to alter the actions of an official or person in charge of a public duty. Spiro “No Bribe Too Small” Agnew resigned as Vice President in 1973, when he was charged with accepting over $100,000 throughout his 11 years in public office. At least he was consistent. Stick with what you know!
“High crimes and misdemeanors” is the interesting one. Although pretty much anyone can be involved in bribery or treason, high crimes and misdemeanors are unique to one in a position of power. The phrase is considered a legal “term of art”, which means it has a particular meaning under the rule of law. “High” comes from our friends across the pond, and means activities by or against those who have special duties, acquired under oath. So a “high” crime does not imply a high bar of proof; in fact just the opposite. Basically, the President is held to a higher standard than us plebes, so if he does something shitty it is a Much Bigger Deal. Essentially the accusation has, at its heart, some abuse of the defendant’s power, gained by virtue of his office. For example, President Trump reverses the State Department’s decision to go forward with the Keystone XL pipeline (which he did, and has the power to do so). And further, he has a financial interest in the pipeline (Does he? Probably? He hasn’t released his tax returns, nor has he placed his personal financial holdings in a blind trust), that would be a Big-Ass Problem. Because he used the power of his office, not in the best interests of the country, but for his own self-dealing.
This was a well-understood term of art by the Old White Dudes of the Constitutional Convention, so it was a no-brainer to drop it into the Constitution. It was like, “Listen, can we AT LEAST agree on this? We’ve been here for FOUR. FUCKING. MONTHS. In fucking PHILLY.”
I’m pretty sure that’s how it went down. Have you ever been in Philly in the summer? This is what I’m saying.
So anyway. The best part of “high crimes and misdemeanors” is how broad it is and how it does not take much for an action to be considered as such. As Gerald Ford said (when he was House Minority Leader) regarding impeachment in general, the measure is “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” Which is why Clinton was impeached because he had consensual sex with someone who was not his wife. ¯\_(ツ)_/¯
So there it is. In my opinion, our current President could easily be impeached. Several of his executive orders are unconstitutional. It could be argued that his ban on immigration from countries that do not have Trump properties – but are well-established harbors for terrorists (looking at you, Saudi Arabia!) – could be considered self-dealing, if not treasonous.
Of course, easily impeached under the law does not translate into a Republican-controlled Congress that has the spine to do it. Maybe if Trump’s actions reflected more on the Republican party, and the Republicans in Congress started feeling the heat of their constituent’s discontent, we might see something resembling integrity if not the more likely self-preservation.
The mid-terms are only 20 months away, people. Just saying.