Fred Henneke, Attorney & Counselor-At-Law
There is a lot of grossly premature chatter about “impeachment” these days. So, let’ s take a step back from the insanity and learn a little about what impeachment really is.
There was a lot of debate at the Constitutional Convention in 1787 over the powers of the Chief Executive of the new republic. The Founding Fathers were well aware of the potential danger of an all-powerful chief executive a la King George III – under no circumstances did they want to re-create that situation. Likewise, they were fully acquainted with the problems created by a weak chief executive such as that established by the Articles of Confederation. As one safeguard against the abuse of power by a strong chief executive, the Founding Fathers inserted into the Constitution a mechanism whereby the President (and all civil officers of the United States) could be removed from office – impeachment.
Article II, Section 4 of the Constitution provides that the “President … shall be removed from Office on Impeachment for, and conviction of, Treason, Bribery, or other high Crimes and Misdemeanors”. Article I, Section 2 gives to the House of Representatives “the sole Power of Impeachment”; Article I, Section 3 rests in the Senate “the sole Power to try all Impeachments.” When the President is impeached and tried, the Chief Justice of the U.S. Supreme Court presides over the trial in the Senate; a 2/3rds vote is required to remove a person from office. The sole,punishment for being impeached and convicted is removal from office and a ban on holding any further “office of honor, trust or profit under the United States”. However, the removed officer can be further tried and convicted under Law for his or her misdeeds.
Thus we see that an effort to remove a President, or other Federal officer, it is a 2 step process. The House of Representatives acts as a grand jury, receiving and reviewing evidence of crimes or misdeeds thought to qualify for impeachment. A majority of the Representatives must vote to refer one or more Articles of Impeachment – i.e., specific charges – for the process to continue. This step is what is commonly referred to as “impeachment”. If the House votes by majority in favor of one or more Articles of Impeachment, the Senate then acts as a jury to determine whether or not the impeached official is guilty of the charges brought by the House. Again, it takes a 2/3rds majority in the Senate to actually remove an officer from his position.
In our history, only 3 Presidents have been impeached; President Andrew Johnson was impeached in 1867, President Richard Nixon was impeached in 1974, and President Bill Clinton was impeached in 1998. None were forcibly removed from office, although it is widely accepted that President Nixon would have been convicted by the Senate and removed from office had he not resigned. Presidents Andrew Johnson and Bill Clinton served out the remainder of their terms.
Presidents Nixon and Clinton were impeached only after long and extensive investigations of their actions while in office. The term “impeachment” has come to be used in reference to the breaking of actual laws while in office. Originally, however, the framers used the word “malfeasance” which refers more closely to abuse of power or improper actions. Because “malfeasance” has no accepted definition, and can be all things to all people, the term “misdemeanors” was substituted for the impeachable event.
By any stretch of the imagination, use of the word “impeachment” with reference to any actions by President Trump to date is wayyyy ahead of the curve. Antipathy towards the individual does not equate to a legitimate reason for removal from office. Let’s wait until Special Prosecutor Robert Mueller completes his investigation before we start throwing around politically-charged terms.
PS. I am embarking on a European vacation later this month, returning mid-June. I hope we can resume this dialogue upon my return.