What is Impeachment?
The Definition: Impeachment
"A charge of misconduct made against the holder of a public office",
“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.” — U.S. Constitution, Article II, section 4.
A little bit more on impeachment...
Impeachment refers to filing formal charges against an executive in office, although it is commonly misused to refer to actually removing someone from office.
During the Constitutional Convention in 1787, the Founders articulated the need for impeachment to be written into the Constitution as a safeguard against the abuse of power by the executive. When the president falls under suspicion, argued Benjamin Franklin, a “regular and peaceable inquiry” is needed. Delegates at the Convention were generally unanimous in their agreement with the assertion by George Mason of Virginia, that “no point is of more importance … than the right of impeachment" because no one is “above justice.”
Ordinarily, elections and the voting public are the main way by which government officials are held to account for their actions, but in extreme circumstances, in the instance of “treason, bribery, or other high crimes and misdemeanors”, impeachment, they agreed, must be a last resort. Impeachment was thus a response to one of the greatest fears the Founders held as they refined the contours of the office of the presidency: that the power vested unto the role may well be abused. George Mason, for example, described the president as the “man who can commit the most extensive injustice”, while James Madison thought the president might “pervert his administration into a scheme of [stealing public funds] or oppression or betray his trust to foreign powers” and further warned that in the case of the president, “corruption was within the compass of probable events … and might be fatal to the Republic.”
According to law professor, Clark D. Cunningham, the Founders therefore saw impeachment as serving three primary purposes: “To remind both the country and the president that he is not above the law; To deter abuses of power; To provide a fair and reliable method to resolve suspicions about misconduct.”
Impeachment was thence included within the constitution and could, Franklin concluded, serve in favor of the president, while also imposing a check on his/her power. It was, he said, the best way to ensure “the regular punishment of the Executive when his misconduct should deserve it and for his honorable acquittal when he should be unjustly accused.” As Gerry of Massachusetts pointed out, "A good magistrate will not fear [impeachment]. A bad one ought to be kept in fear of [it].”
What counts as ‘misbehavior’?
While the Founders were clear that impeachment was a necessary check on executive power, they were less clear on the behavior to which it actually applied. What they meant by ‘high crimes and misdemeanors’ has, as a result, been the subject of much debate. Was the process reserved for instances in which the president has committed a crime? Or does it have broader application, to issues surrounding the president’s use or abuse of office?
Michael Gerhardt, a professor of constitutional law at the University of North Carolina at Chapel Hill, and the author of several books on the topic, argues in favor of the latter. Congress is well within its right, he says, to frame impeachment “on the basis of things that are not themselves criminal” but involve a clear abuse of the powers of office. He couches his argument in the examples of impeachable offenses discussed at the Constitutional Convention, which he notes are not technically criminal offenses. George Mason, for instance, discusses how pardon power, when applied to protect the president from criminal investigation, constitutes an impeachable offense.
Corey Brettschneider, Professor of Political Science and Public Policy at Brown University, and author of The Oath and the Office, agrees. ‘“High crimes and misdemeanors” is a category found nowhere in criminal law’ he argues. “The framers meant something broader: a demeaning or undermining of the office. High crimes are actions that abuse the public’s trust in the president.
What happens during impeachment proceedings?
It’s a pretty long process. While the framers wanted to ensure that the powers of the presidency couldn’t be abused, they also wanted to ensure that no dissenting party or opposing faction could use impeachment as a way of booting the President from office and usurping his/her power. To that end, the constitution gives the House the ‘sole power to impeach an official’; the Senate “the sole power to try all impeachments”; and then the chief justice of the Supreme Court the duty of overseeing impeachment trials in the Senate.
So, what does this mean in practice? It means that impeachment begins in the House, which, acting as the prosecutor, debates and then votes on whether to bring forward charges by way of an impeachment resolution. If more than half of the House (which is comprised of 435 members) vote in favor of the resolution, then the process can move through to the Senate, which serves as the jury in a trial, overseen by the chief justice of the U.S. Supreme Court.
But, according to some, although the House may approve the impeachment resolution, the Senate can decide whether or not to hold the trial since the constitution doesn’t explicitly stipulate that the Senate must try an impeachment, only that it has the sole right to. If a trial is held, then a two-thirds majority vote in the 100-member Senate must be received in order for a President to be removed from office. It’s also the Senate’s call as to whether the removed official is barred from ever holding office again. Whether someone receives a fine or jail sentence for any criminal offenses committed is left to the criminal justice system to decide.
Turning to the debate around the potential impeachment of President Trump, some suggest that the current make-up of Congress makes it pretty unlikely that the Senate, which has 53 Republicans, 45 Democrats, and two independents, would rule in favor of his removal from office. For this to happen and for them to reach the 67 votes, at least 20 Republicans, and all the Democrats and independents would have to vote in favor of removal.
Why is the President the subject of impeachment proceedings?
Last Tuesday, House Speaker, Nancy Pelosi announced that the US House of Representatives would start a formal impeachment inquiry into President Donald Trump. Despite mounting pressure from within her caucus, Pelosi had, until now, been reluctant to initiate the process, which she has called ‘divisive,’ amidst concerns that it would rile up Republican voters ahead of the 2020 election and thereby dampen the Democrats’ chance of retaining the House and ousting Trump from the presidency. Plus, given that many Democrats think it unlikely that Trump’s removal would actually be considered or approved by the Senate, it is a pointless and risky endeavor ahead of the election.
But, following recent allegations regarding Trump and Ukraine, Pelosi has at last changed her mind. This time, she says, Trump has gone too far. “The actions taken to date by the president have seriously violated the constitution... the president must be held accountable. No one is above the law.”
The allegations in question concern an apparent attempt by the president to elicit the help of Ukrainian Prime Minister, Volodymyr Zelensky, to dig up some dirt on potential 2020 rival, Joe Biden. The allegations emerged after a whistleblower report was filed to a member of the intelligence community, highlighting a potentially incriminating conversation between the two leaders.
A rough transcript of the call was released last Wednesday and shows Trump asking Zelensky to look into claims that as Vice President, Biden sought to oust Ukraine’s chief prosecutor in 2015 in order to help a company for whom his son was on the Board of Directors.
These are old allegations which have been investigated in the past. Now, they sit at the heart of Pelosi’s impeachment inquiry, during which lawmakers will examine whether Trump put pressure on Ukraine to reopen a criminal inquiry associated with the Biden family, in exchange for the $250 million of military aid the president had delayed shortly before the call.
Has this happened before? When? What went down?
Yes, it has. But only three times in American history have impeachment proceedings been launched against a president, and on one of those occasions, President Nixon resigned before impeachment articles were brought to a full vote of the House. Here’s a brief overview.
Andrew Johnson (1868)
The first President to be impeached was Andrew Johnson in 1868. Johnson had assumed office following Abraham Lincoln’s assassination, and quickly became embroiled in a bitter conflict with Republicans as he fought against several bills focused on providing civil rights for newly freed slaves. The Republicans sought to curtail the new president’s powers by passing The Tenure of Office Act, which prohibited him from firing a member of his cabinet without their successor being first approved by the Senate. Johnson promptly tested this new legislation by firing his Secretary of War, Edwin Stanton, to which the House responded by issuing 11 articles of impeachment primarily focused on his breach of the Tenure of Office Act. In the end, Johnson was impeached but remained in office after persuading the Republicans that if they allowed him to stay on, he would stop opposing them at every juncture. He remained with the help of just one vote.
Richard Nixon (1974)
Then came the near impeachment of Nixon in 1974. According to constitutional law professor, Michael Gerhardt, this offers a prime example of exactly how the impeachment process ought to work, “investigation first, ending with the formulation of the impeachment articles in the House Judiciary Committee… his decision to resign rather than be impeached fits within all this.” So what happened? Well, the House Judiciary Committee didn’t actually pass articles of impeachment against Nixon until two years after the failed break-in at the Democratic National Committee’s offices in the Watergate office in D.C.
Amid the scandal surrounding Watergate, we still don’t know who ordered the break-in, but the evidence that instigated his impeachment and ultimately forced him to resign, the notorious ‘smoking gun’ conversation, proved he’d attempted to prevent the FBI from investigating the instance by lying about it. In those intervening years the Senate had uncovered a wealth of evidence highlighting numerous abuses of power and obstructions of justice by the Nixon administration, which were sufficiently compelling to persuade numerous Republicans to support his removal from office and to shift public opinion firmly against him.
Bill Clinton (1998)
And finally, but no less memorably, there is Clinton, against whom impeachment proceedings were brought in 1998 after he lied about having an affair with White House intern, Monica Lewinsky. In this instance, public opinion largely supported Clinton, who many felt was being unfairly targeted in a partisan, rather than a constitutional, case.
Some critics of the impeachment believed the investigation into Clinton's affair lacked a fundamental legitimacy since it was undertaken by Independent Counsel Kenneth Starr who'd been appointed to investigate a completely separate matter - a real estate investment Clinton had made while governor of Arkansas.
Weeks after details of the affair had surfaced and put Clinton's time in office in jeopardy, public opinion turned on Starr and moved behind the president. So much so in fact that the Clinton administration saw its highest job approval ratings during the impeachment controversy, and the Republicans lost congressional seats in the following November midterms (impeachment proceedings were started in October). In 1999 Clinton was acquitted by the Senate.
If Trump does get impeached after all of this, then what happens?
Then he will be forced out of office, potentially barred from holding public office in perpetuity, and VP Mike Pence will become President. If Pence is also implicated in the Ukraine scandal and leaves office with Trump, then House Speaker Nancy Pelosi is next in line. How wide a field of Republican candidates we would then see emerge ahead of the 2020 election is anyone’s guess.
And if he doesn't?
Then he stays in office, continues to run for the Presidency in 2020 and may well garner additional support from voters if it is perceived he was unfairly targeted.
Want to know more and dig a little deeper into this fascinating topic? Of course you do. Below are three carefully selected podcast episodes to help you do just that.
Impeachment: The Explainer
In this episode, Pantsuit Politics gives you an easy-to-digest primer on all things impeachment. Think of it as the audio accompaniment to this newsletter. Enjoy!
The First President To Be Impeached
Six weeks after Andrew Johnson was inaugurated as Vice President, Abraham Lincoln was shot and killed. Johnson was immediately sworn in, succeeding to the Presidency just as the Civil War was coming to a close and the nation was beset by division.
The most immediate question facing the president was what to do with the defeated Confederate states. But from the outset Johnson’s presidency was beset by challenges as he clashed continually with Congress. From attempting to quickly restore seceded states to the Union, to vetoing the Civil Rights bill and the 14th Amendment, both of which sought to bolster rights for black Americans, Johnson’s policies were deeply unpopular and his style of governing more so. In 1868 the House voted to impeach him, bringing forward 11 charges. He was acquitted thanks to a single vote.
In this episode, NPR’s Throughline delves into what went down the first time a U.S. president was impeached.
The History Of Impeachment In All Its Glory
The concept of impeachment has its origins in British law, devised initially as a way by which the British Parliament could prosecute and try individuals in public office who’d committed high treason or other crimes. It was first put to use in 1376 against one Lord Latimer. As the Founders shaped the contours of government in the United States a few centuries later, they spent much time debating how to restrain the power of the executive, eventually adopting and adapting Britain’s impeachment process. They even borrowed the British legal language as they incorporated the process into the Constitution. But where else has the impeachment process been used? And to what end?
In this episode, The Moncrieff Show provides some much needed historical context and perspective on the issue of impeachment. As illuminating as it is fascinating.
Words by: Emma-Louise Boynton
Editing by: Jim Cowles, Stacy Perez and Emma-Louise Boynton