With recent discussions about impeaching the President apparently coming to a head, as well as calls for impeaching Justice Kavanaugh, I thought it was a good time to discuss the process from its constitutional roots.
While the recent focus of impeachment has been on the President and judges, we need to remember that the purpose of impeachment is to remove a federal official for misconduct.
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
That means officials are to be removed for crimes or misdemeanors.
MISDEME’ANOR, noun Ill behavior; evil conduct; fault; mismanagement.
Webster’s 1828 Dictionary
In law, an offense of a less atrocious nature than a crime. Crimes and misdemeanors are mere synonymous terms; but in common usage, the word crime is made to denote offenses of a deeper and more atrocious dye, while small faults and omissions of less consequence are comprised under the gentler name of misdemeanors.
It is unfortunate that over the last several decades I’ve observed that impeachment, or more often the threat of impeachment, has become less about removing bad or incompetent officials and more about political payback.
The Impeachment Process
Impeachment of any federal official is a two step process. First, the House of Representatives must impeach the person. Second, the Senate must try the impeachment. Although impeachment is not a criminal process, it is very similar to the process a citizen would find themselves in when charged with a serious crime. Amendment V states that:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,
U.S. Constitution, Amendment V
If you are charged with a serious crime, i.e. a felony, the first step a prosecutor must take is to convince a Grand Jury to indict you. Similarly, the first step in charging a President, or any government official, is the impeachment process. Article 1, Section 2, clause 5 of the Constitution states
The House of Representatives … shall have the sole Power of Impeachment.
U.S. Constitution, Article I, Section 2, Clause 5
Like a Grand Jury places the fate of the accused first in the hands of the people on that jury, the fate of an accused government officer is first decided by those who are elected to represent the people of this country.
As in a criminal case, once indicted by a Grand Jury or impeached by the House of Representatives, the accused is not yet considered guilty. Their case must be tried. In a civilian case it’s heard in the appropriate court. With impeachment, that court is the Senate.
The Senate shall have the sole Power to try all Impeachments. … And no Person shall be convicted without the Concurrence of two thirds of the Members present.
U.S. Constitution, Article I, Section 3, Clause 6
In a criminal case, the case is heard by a jury of the accused peers and requires a unanimous decision to convict. In an impeachment, the case is heard by the representatives of the States (the members of the Senate) and only requires two-thirds of the members present to convict. Another major difference between a criminal case and an impeachment is the punishments allowed. In the case of impeachment, the only punishments the Senate can effect is the removal from office and the disqualification from any holding office in the government.
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:
U.S. Constitution, Article I, Section 3, Clause 7
Lastly, in the case of the impeachment of the President, the Chief Justice of the Supreme Court must preside over the Senate trial.
When the President of the United States is tried, the Chief Justice shall preside:
U.S. Constitution, Article I, Section 3, Clause 6
What we see in an impeachment is the use of due process and the protecting of the rights of all involved. No federal official can be removed from office unless a majority of the House of Representatives (including its leadership) finds there is cause for a trial and two-thirds of the Senate believe the person is guilty. While an impeachment does not include all the due process protections the accused has in a criminal trial, it also does not provide as severe a punishment. Although an impeachment has many of the hallmarks of a criminal trial, it is ultimately a political process, and therefore subject to political machinations.
Is the Impeachment Process Perfect?
No. I don’t believe any system that involves human beings is going to be perfect and the simple reason is that human nature goads us to use any system to our advantage. Even Thomas Jefferson, when considering the fate of federal judges said:
Having found from experience that impeachmt is an impracticable thing, a mere scare-crow, they consider themselves secure for life; they sculk from responsibility to public opinion the only remaining hold on them,
From Thomas Jefferson to Thomas Ritchie, 25 December 1820
While Jefferson was concerned the threat of impeachment was insufficient to hold judges accountable, today we see it being used to intimidate. I would take recent calls for impeachment more seriously if those making it had not called for it at the beginning of Trump’s administration. There was even talk of impeaching him before he took the oath of office. To date I have not seen any evidence that Trump has committed treason, bribery, or a high-crime or misdemeanor. There have been plenty of accusations that he has, but as yet no evidence. The same could be said of Justice Kavanaugh; multiple allegations, but no evidence. In fact, in both cases evidence has come to light showing the allegations are baseless. Yet we still hear threats of impeachment?
Don’t get me wrong, if either of these men have committed crimes, then they should be tried, and if found guilty, removed. But as with the boy who cried wolf, it becomes harder and harder to believe the calls for impeachment every time they are found to be baseless.
