The constant flow of information about Donald Trump’s scandalous and dysfunctional administration has intensified the calls to remove him from office.
But what is the impeachment process, and what will it take to use it against Trump effectively? The process stems from provisions in our Constitution that have long baffled scholars, jurists, and lawmakers:
Section 2: The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
Section 3: The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no 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, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
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.
Much of the controversy around impeachment surrounds the meaning of “high crimes and misdemeanors.” What actions qualify? The answer might be as simple as, “whatever Congress thinks qualifies.” Given how the House has “sole Power of Impeachment” and the Senate has “sole Power to try all Impeachments,” it seems likely that, under most theories of Constitutional law and the separation of powers, the Supreme Court would have no say in deciding if a particular “high crime” or “misdemeanor” was sufficient for impeachment and removal.
The House of Representatives has impeached two presidents, but the Senate convicted neither of them. Still, those experiences, plus the impeachment proceedings of a number of other elected officials, give us an idea of what the process entails.
To impeach a president, the process begins in the House of Representatives after a simple majority approves the charges against the President (known as the Articles of Impeachment). Then the Senate holds a trial, over which the Chief Justice of the Supreme Court presides. Two-thirds of the Senate must vote to convict and remove the President from office.
So far, the Senate has never voted to convict an impeached President, but it came close to doing so in 1868, when Andrew Johnson kept his office by one vote. To learn more about what happened, I read Impeached: The Trial of Andrew Johnson and the Fight for Lincoln’s Legacy by David O. Stewart.
Andrew Johnson became President after the assassination of President Abraham Lincoln, a few weeks before the official end of the bloody Civil War. Republicans added Johnson to Lincoln’s presidential ticket as a symbolic gesture, hoping a Tennessean would show that they were not only a party of the North.
However, as Stewart explains:
Elected on the Republican ticket, Johnson longed to cut himself free from that party. He did not share its principles, its goals, or its brief history.
Johnson sounds like Donald Trump, the nominal head of a party he barely belongs to. Trump and Johnson have so much in common that many portions of Stewart’s book felt as though they could have been about Mr. Trump if we changed the dates and replaced names with “the President,” “Department official” and “Congressman.” For example:
- “Quickly, the audience could tell that something was wrong. [The President’s] face glowed a luminous red. His sentences were incomplete, not connected to each other.”
- “[The President] had misplayed his hand. Rather than acting the statesman who wished to unify the nation, he behaved like a political brawler with a grandiose self-image.”
- “[T]he president’s provocative and racist rhetoric failed to unite Republicans against him.”
- “[The] vindictive spirit blinded [the President] to the damage he was doing to his own cause.”
- And, as Carl Schurz remembered about Johnson in 1907: “There was a widespread feeling among well-meaning and sober people that the country was really in some sort of peril, and that it would be a good thing to get rid of that dangerous man in the presidential chair.”
There are also differences between Johnson and Trump, one being that Johnson was a hard worker (while Trump spends more time playing golf than any President in recent memory) and Congressional Republicans were ultimately more apt to counter the President in Andrew Johnson’s time than the current version of that party is willing to do today.
With Johnson, Republicans like Thaddeus Stevens laid the groundwork for his impeachment for years, failing multiple times to get a majority in the House to approve the Articles of Impeachment. The charges were “high crimes and misdemeanors,” which required something more than simply being “unfit” for the presidency. It helped the impeachment effort when Johnson violated the Tenure of Office Act by replacing the Secretary of War. Republicans in the House then approved, finally, the Articles of Impeachment, but the Senate did not convict, falling short of the required two-thirds by one vote.
It remains to be seen whether Donald Trump will be the first U. S. President to be convicted and removed from office. So far, the GOP’s Paul Ryan and Mitch McConnell have shown nothing but tacit approval of Mr. Trump’s misdeeds that, at best, show him to be unfit for the presidency and, at worse, raise the specter of treason.
We’re still uncovering the facts, but these disturbing actions (among others) could underscore the case for impeachment against Trump:
- Trump allegedly demanded “loyalty” from FBI Director James Comey, and then fired him amid the FBI’s ongoing investigation of Trump’s connections with Russia, a country that interfered in our election to benefit him. The stated reason for Comey’s firing—that it was based on Comey’s mishandling of the investigation into Hillary Clinton’s email server—is laughable coming from a man who gleefully encouraged his supporters to chant “Lock her up” during his campaign. So, it’s pretext, and the question is whether it’s obstruction of justice, an impeachable “high crime and misdemeanor.”
- To make matters even more deplorable, we have just learned that Trump allegedly asked Comey to end the investigation into Michael Flynn’s connections and communications with Russia. (And now, Jason Chaffetz, the Chair of the House Oversight Committee, has sent a letter to the FBI requesting Comey documents).
- Then there’s the allegation that Trump disclosed classified information to Russian officials, which looks treasonous on the surface, but does not meet the Constitution’s narrow definition of “treason.” Nevertheless, the flippant disclosure of highly sensitive and important information could support impeachment, particularly when coupled with other reckless acts.
- And let’s not forget the evidence that Trump and his associates may have violated the emoluments clause of Article I of the Constitution, which prohibits public officials from taking something of value from foreign governments. The question is whether the benefits Trump has allegedly received from foreign governments amount to accepting bribes (a separate impeachable offense) or whether it’s corruption qualifying as a “high crime and misdemeanor.” See The Emoluments Clause: Its Text, Meaning, and Application to Donald J. Trump.
The American People deserve to know the facts surrounding these serious allegations. We need Paul Ryan, Mitch McConnell, and their colleagues to finally stand up to Donald Trump. Our democracy remains at risk until either our Republican-led Congress prioritizes the good of the country over its loyalty to Trump or the American people vote them out of office.
*Image: Impeachment In A Horn (1868), https://www.loc.gov/item/2007680124/