Fred Henneke, Attorney & Counselor-At-Law

IMPEACHMENT; A PRIMER; 10/30/2019

This post is intended to be a set of basic facts about what is commonly known as “impeachment”. The goal is to provide a basic understanding of the process and nuances without judgment (at least for now).

The drafters of the Constitution were concerned about abuse of the far-reaching powers given to the President of the new Nation. Fresh in their minds were the abuses by King George III and the inability of the people to address those abuses,  To mitigate against abuse by the President, and all “civil officers of the United States”, they included a mechanism for removal of such offending President or civil officer. Article II, Section 4 provides for removal from office “on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors”. Article I, Section 2, (5) reserves to the House of Representatives “the sole power of Impeachment.”.Article I, Section 3 (7) gives the Senate the sole Power to try all Impeachments”.

The Constitutional language “Conviction of Treason, Bribery or other high Crimes and Misdemeanors” is often confused with a criminal offense standard.. There is no requirement of a violation of any criminal statute for impeachment. Alexander Hamilton made it  clear in Federalist Paper No. 65 that impeachment is for

             “those offenses which proceed from the misconduct of public men or, in other words, from the                         abuse or some violation of some public trust. They are of a nature which may with peculiar                               propriety be denominated  POLITICAL…”.

So, it can be seen that there is no clear definition of or standard for an impeachable offense. No less an authority than former President Gerald Ford has been quoted as saying that “an impeachable offense is whatever half of the members of the House of Representatives plus one vote in favor of.”.

Important Distinction: IMPEACHMENT DOES NOT EQUAL REMOVAL FROM OFFICE!

The impeachment process, whether it be for the President or a lesser officer, such as a Federal judge, begins in the House of Representatives. An investigation is conducted into the alleged misdeeds of the person in question. The investigations into Presidents Nixon and Clinton were conducted by Special Prosecutors; the current investigation into President Trump is being conducted by three committees of the House. The results of the investigation are referred to and reviewed by the House Judiciary Committee. Formal charges of wrong doing called Articles of Impeachment are drafted based upon the results of the investigation. Each Article of Impeachment is debated and voted upon separately. In the past, attorneys for the person accused of wrong doing have been allowed to participate in the consideration of the draft Articles by the Judiciary Committee. Any Article of Impeachment that receive a majority favorable vote by the Judiciary Committee is forwarded to the full House for debate and vote.

After due consideration, the full House votes separately on each individual Article of Impeachment. If any Article receives the favorable vote of at least 50% of the members of the House PLUS ONE, the individual has been Impeached. The Articles of Impeachment receiving the required vote are forwarded to the United States Senate for a trial by the Senate.

Only two Presidents have been Impeached – President Andrew Johnson in 1868 and President William Jefferson Clinton in 1998. Articles of Impeachment concerning President Richard Nixon were approved by the House Judiciary Committee in 1974; however, President Nixon resigned before the House voted on those Articles of Impeachment. Therefore, President Nixon was never actually Impeached.

The United States Senate acts as the jury and considers those Articles of Impeachment that passed the House. Each Senator is a juror and votes individually. The Chief Justice of the United States Supreme Court presides over the trial of a President. The trial is not necessarily conducted according to the Federal rule of civil or criminal procedure; the Senate as a body has the power to set the rules for the trial.  In the trial of President Clinton, members of the House (including Lindsay Graham who was a Congressman from South Carolina) acted as the prosecutors; President Clinton was defended by his private attorneys. To remove a federal officer from office, including the President, one or more of the Articles of Impeachment must receive the affirmative vote of two-thirds  of the members present. Once removed from office, the President (or other officer) may be held criminally liable for his or her misdeeds. A person removed from office cannot hold “any Office of honor, Trust or Profit under the United States.”.

No President has been removed from office. President Johnson survived by only One vote. There were two Articles of Impeachment considered against President Clinton; one received the concurrence of only 50% of the Members present, the other did not reach even that level. A handful of Federal judges have been Impeached and removed from office.

I trust this basic primer has been useful. More to come later.

 

STAY TUNED!

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