The House has more interviews scheduled for this week and impeachment is becoming more and more likely in spite of last week’s antics by Republicans – including Sen. Lindsey Graham’s resolution condemning the House inquiry, and the mob of 30 Republicans who physically forced their way into the secure location where the interviews were taking place.
But many people feel confused about the law and process behind an impeachment. So let me explain.
High Crimes and Misdemeanors
The House of Representatives is currently investigating the president for violating Article II, section 4 of the Constitution, which says: “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.”
So, that brings us to our first question: what constitutes a high Crime and Misdemeanor for purposes of the Constitution?
A high Crime and Misdemeanor for impeachment purposes is essentially an abuse of power by a government official. The definition has been around since the signing of the Constitution in 1787. As for what constitutes an abuse of power for purposes of defining “high Crimes and Misdemeanors” – that is more of a consideration of realpolitik, rather than strict legal analysis.
Take for instance then-Rep. Lindsey Graham during former president Bill Clinton’s 1998 impeachment trial. Graham argued that Clinton’s extramarital affair rose to the level of a high Crime and Misdemeanor for impeachment purposes. Fast-forward two decades later and Graham (now a senator) says that Trump’s attempt to allegedly coerce the Ukrainian president to investigate a political opponent during an election year doesn’t meet the legal threshold of an “abuse of power” for impeachment purposes.
What are the articles of impeachment and what will the House do with them?
Because an impeachment trial is not the same as a criminal trial, the articles of impeachment replace what would be an indictment, or an accusation, in a criminal trial. When the House of Representatives has concluded their investigation and decided to formally charge the government official, they present the articles of impeachment, or formal charge, to the Senate.
Is it legal for the House to hold its impeachment investigation interviews out of the public eye and without a legal representative of the president in the room?
I spoke with Frank O Bowman III, a professor of law at the University of Missouri and author of High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump, about Republicans’ outrage at the House’s investigation of Trump. He explained me that, although there is a sitting Department of Justice memo that states a sitting president cannot be indicted (because it would undermine the executive office’s ability to perform its constitutionally assigned functions), there is no precedent to back up Republicans’ apparent claims that a sitting president can’t be investigated. In fact, he told me, if you look at the investigations of president Nixon and president Clinton, it’s clear that sitting presidents can and have been investigated.
Much of how the House of Representatives decides to hold the impeachment inquiry is at their discretion. Moreover, there are Republican members of the House present during the impeachment investigations, but they are members of the committees that are conducting the inquiry. At the Senate trial, the president will have legal representation, but right now the House is merely gathering information.
Must the Senate hold a trial if the House impeaches the president?
The Constitution doesn’t explicitly require it. Written in 1986, the Senate rules of impeachment read as if they expect a trial after the House votes to impeach. Senate Majority Leader Mitch McConnell has said that the Senate will take up the impeachment resolution if the House impeaches.
If there is a Senate trial, is there a jury?
Not exactly. In a Senate impeachment trial, the 100 members of the Senate act as the jury. Much like a regular jury trial, at the end of the Senate trial the 100 members of the Senate retire out of public view to deliberate on the verdict.
How does the Senate trial work?
The Chief Justice of the US Supreme Court presides over the trial, so in the case of Trump, Chief Justice John Roberts would preside. Senators rely on information provided by the House of Representatives during their investigation and in order to ask questions, the Senators must write them down on a piece of paper.
How many Senators would need to vote to convict the president during the Senate trial?
A two-thirds majority of the Senate would have to vote to convict, which is extremely unlikely. That would mean that if all 47 Democratic senators (including two Independents) voted to convict, they would still need 20 more Republican votes.
What happens after a Senate impeachment trial?
It depends on whether or not Trump is convicted in the Senate trial. If the president isn’t convicted then, like former president Bill Clinton in 1998 and president Andrew Johnson in 1868, Trump would continue in office.
If Trump were to be convicted, however, then according to Article I, Sec. 3 of the Constitution, he would be removed from office. According to Prof. Bowman, “in modern practice the Senate could take an additional vote after conviction and ban him from ever holding federal office again.”
After the president leaves office, can he be held criminally liable for his actions while he was in office?
Article I, Sec. 3 of the Constitution says “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” According to Prof. Bowman, that means “that any punishment in addition to being removed from office and disqualification from office-holding is in the hands of the courts. So, the Senate couldn’t impose any other punishments, but the courts could.”
What does this all mean for our democracy?
Trump’s alleged conduct in the Ukraine scandal seems a much more flagrant abuse of government office than Clinton’s extramarital affair – the latter involved the former president’s personal life and the former an upcoming presidential election and a foreign government. But the unwavering support for the president from many Republicans makes it clear that impeachment is a political question, rather than an ethical or legal one.
Unfortunately, a chance at reelection seems to be the only thing that matters to politicians like Lindsey Graham – the Constitution, democracy and national security have nothing to do with it.