LftS: Impeachment

Thank you for Listening Please Share <\audio>​Scandal after scandal, through broken laws, rules, norms, and traditions Donald Trump’s presidency has seemed unassailable.   The Republican party has been overtaken by an extreme wing of “alt-righters” that are dead set on defending Trump regardless of what he does.  The Democratic party has been at war with itself as the far left fights with the moderate and conservative left on how to deal with Trump.  This is cre [...]

Thank you for Listening Please Share <\audio>​Scandal after scandal, through broken laws, rules, norms, and traditions Donald Trump’s presidency has seemed unassailable.   The Republican party has been overtaken by an extreme wing of “alt-righters” that are dead set on defending Trump regardless of what he does.  The Democratic party has been at war with itself as the far left fights with the moderate and conservative left on how to deal with Trump.  This is creating a disunified front incapable of doing anything.  With all of that going on, Trump has managed to reshape the Judicial and Executive Branches of government into extensions of his will by filling them with partisan persons and going around the official appointment channels where ever possible.  Surviving campaign finance issues, lying to the media and the public, instructing others to lie under oath to congress, interfering in multiple investigations, potentially using pardons as a political tool, and encouraging other countries to interfere in US elections, his presidency faces a new challenge that has people seriously talking impeachment: pressuring Ukraine to investigate the son of a political opponent. In this episode of Lessons from the Screen we are going to be talking about impeachment.  
There is a lot to clarify and run through here and that is what this show is about.  We are not getting into what Trump did or didn’t do because that is going to be hashed out for the remainder of his presidency, what is most important right now is that people thoroughly understand the process of impeachment. That begins with understanding that impeachment is a process and not the simple act of removing someone from office.  It is the process of bringing charges against an official that could result in removal from office.  Impeachment proceedings are not criminal proceedings though.  However, a criminal proceeding could follow an impeachment proceeding, especially if criminal activity is uncovered during the impeachment process.  The goal of an impeachment proceeding is to display the facts of a particular situation and to determine if those facts present an issue grave enough to warrant removal from office.  This also isn’t something that is restricted to presidents, of the 17 impeachment proceedings voted on by the house and the 19 officials impeached by the House, only 2 were for a president.  The remainder were for judges (15) a member of congress and a cabinet secretary.  Impeachment is also not a federal process only, states often have their own rules and regulations surrounding impeachment proceedings for locally elected officials.  

Impeachment power is granted to the House of Representatives by Article 1, Section 2, Clause 5 of the constitution which says: The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.  This constitutional clause has been interpreted to mean that the House of Representatives is the only governmental body on the federal level that can determine what an impeachable offense is.  Since 1789 there have been 62 impeachment proceedings started, but as mentioned earlier, only 17 led to a vote with 19 officials being impeached.  

Trial of the Impeachment power is granted to the Senate by Article 1, Section 3, Clauses 6 and 7 which say: [6]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. [7] 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.  

Clause 6 gives the power to try impeachment charges successfully brought by the House of Representatives to the Senate.  It also details the procedures for the trial enlisting the Chief Justice to preside over the Senate Trial when the president is being impeached.  This clause has been interpreted as giving the Senate sole power to determine what is a fair and adequate impeachment trial.  It also details the requirements for conviction being 2/3rds or 67 senators as being needed to convict.   The power to try and convict on successful charges brought by the House was an attempt by the framers of the constitution to ensure that the process was measured and fair.  The Senate is supposed to be the upper branch of congress, the more stable and protracted of the 2 bodies of congress.  This is why the requirements for becoming a Senator are higher than those for becoming a member of the House.  It was believed that making senators older and more experienced would give them a level of wisdom that members of the House would not have.  It was also believed that making senators serve 6 years instead of 2 there would be distance created between them and the ever-changing whims of the public.  These 2 things combined were supposed to work together to create a body of congress that was more deliberate in its actions and thoughtful in its planning.   Deliberate and thoughtful are what you want when considering something as impactful as impeachment.  The requirement that they are on oath or affirmation was another requirement meant to impress upon them the severity of the proceedings.  The Chief Justice presiding over the Trial also shows the severity of the proceedings and presents a Vice-President (who normally oversees the Senate) from potentially using the process to take control of the Presidency.  The two-thirds super-majority was meant to remove the possibility of party line convictions.  Of the 19 federal officials impeached by the House, only 7 were convicted by the senate.  So out of the 62 impeachment proceedings launched by the house, only 7 resulted in removal with 1 causing the resignation of a President (Richard Nixon).

Clause 7 states that officials convicted by the senate will be removed from office and potentially barred from future offices.  No other action can be taken for conviction of impeachment by the Senate.   However, it also says that criminal trials for criminal activity can still be started after a conviction by the Senate for impeachment.  So if an official commits a crime, impeachment does not block further criminal charges from being brought, meaning it isn’t necessarily a punitive or rehabilitative action, more of a measure to ensure the integrity of the government.  

Article 2, Section 4 lays out who and for what reason someone can be impeached.  It 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.  This lays out that all civil officers of the United States can and should be removed from office for treason, bribery, and other high crimes and misdemeanors.  It also cements the rule that an official that has been charged in the House and Convicted in the Senate will be removed from office. 

When it comes to who can be impeached, while the constitution leaves it as “the President, Vice President, and all civil officers...” it does not clarify who or what qualifies as a civil officer.  But this has been interpreted to mean federal judges, the President and any appointees in the executive branch that is a principal officer (cabinet members, department heads, administrators, and some commissioners all apply), and the Vice President.  Federal employees are not subject to impeachment according to the current interpretation being utilized and members of congress are also not subject to impeachment.  There are other, much simpler, rules in place for removing people in these positions.   

When it comes to impeachable offenses, things start to get a little dicey.  The constitution really shines in all it’s vague glory with regards to what constitutes an impeachable offense.  Treason is simple enough, so is bribery, it is the high crimes and misdemeanors portion that has been and will continue to cause endless debates from the various different interpretations of the phrase.   One thing that has been confirmed repeatedly throughout history and has generally been accepted all the way up until the Trump Presidency is that a crime isn’t necessary for impeachment.  

Alexander Hamilton wrote in the Federalist Papers number 65: A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.  

 The passage speaks to the thought put into what would constitute an impeachment as well as the fears of the rise of a demagogue (a political leader who plays to prejudices and biases as opposed to reasoning), which was something that was present in the minds of all that were involved in the creation of the American Government.  The fear that people would be divided is accepted as a reality, the fear that those divides would be centered along factional or party lines that would influence the impeachment trial is the fear that I am speaking of in particular.  Because a demagogue would have passionate, emotional,  and illogical support, they could create conditions that would allow the erosion of the offices of the state with no check or desire amongst the necessary numbers of people to save the nation.  It was hoped that the senate would be high minded enough to resist such notions.  

On a deeper note, since some of the offenses considered when thinking about impeachment were not necessarily crimes but more along the lines of conduct unbecoming, it was also acknowledged that the sole deciding factor of what constitutes an impeachable offense is what the House considers one.  Most of the Articles of Impeachment drafted by the House throughout history have not included explicit violations of criminal statutes.  Drunkenness, bias decisions, rude speech, contempt of congress, and diverting of funds, and even actions taken before getting into office or being appointed have all been grounds for impeachment in the past.  Breaking a law is an impeachable office if the House of Representatives says it is, Violating a code of conduct is an impeachable office if the House says it is.  Likewise, breaking the law is not an impeachable offense if the House says it isn’t, violating a code of conduct is not an impeachable offense if the House says it isn’t.  

The overall goal of impeachment is to remove people unfit for office.  The definition of unfit was set up to be defined by the House during the time of the considerations, but there were some guidelines so as to discourage the removal of a figure you just didn’t like.  To that end 3 categories of impeachment have been recognized although offenses not fitting in these categories can still be brought forward should the House desire.  

1 .Abusing the power of your position.
2. Behavior that is unbecoming or dishonors your position and makes the function of your position difficult or impossible to perform. 
3. Using your office for personal gain.

To that the question has to be asked, why was the task of conducting the Trial of Impeachment not given to the Judicial Branch, the supreme court seems like it would be perfect for this task and it seems like it would mesh well with the checks and balances system.  Alexander Hamilton speaks on that issue as well in Federalist Paper number 65.  He outlined a few points that caused them to create the senate trial system we have.  Some of them were:

1. The Supreme Court has too few members.
2. The nature of an impeachment trial is different from that of a criminal trial.
3. A conflict of judgement would be created if an impeachment was caused by criminal conduct.

The mixture of the Chief Justice and the Senate was selected with regards to Presidential Impeachments to add weight to the proceedings amongst other things.  

An independent court wasn’t created for Impeachments because of the cost of the endeavor and the credibility and influence issues that would be present.  In order for them to have proper authority and credibility they would need to be full time government workers with no other outside allegiances which would be costly for a procedure that wasn’t intended to be a common occurrence.   Them being full time workers however, would open them up to interference and influence from other people and institutions.  There would also be a potential disconnect between the office of impeachment and the people of the nation.  The crafters of the constitution decided that it wasn’t beneficial to go in that direction.  

The Procedure involved in Impeachments is pretty straight forward at the federal level.  The House starts an Impeachment Inquiry to investigate the circumstances in question.  After the facts have been gathered the House must pass Articles of Impeachment.  Articles of Impeachment can be passed by a simple majority vote.  Once the Articles of Impeachment are passed, the Senate holds a trial.  If the President is being tried then the Chief Justice of the United States presides over the trial.  If it is another officer then the President of the Senate (the Vice-President) should preside over the trial.  Conviction requires a Supermajority 2/3rds vote and results in removal from office.  

While many have challenged the investigative powers of congress and their authority to investigate the Office of the President in particular.  The Supreme Court has regularly not only confirmed the authority of Congress to investigate anyone and anything, but has also said that congress has a duty to do so.  Congress is also supposed to be informing the public on the workings of the government and investigations are critical to that role.  Congress is also responsible for oversight of government operations and investigations are also mandatory for that duty.  Congressional investigations are a part of a properly functioning congress just as much as passing legislation.  Those investigations are necessary for creating and passing well informed and effective legislation as well as providing credible information to the public.  

The impeachment proceedings can be started by the articles being introduced directly on the floor by a member of the house presenting charges or by asking one of the house committees to look into a particular matter.  People that aren’t members of the House can also start impeachment proceedings by submitting petitions to the House.  The resolutions crafted are named according to the House Committee they are sent to, but they all usually end up back in the Judiciary Committee where the charges are investigated and scrutinized.  The Judiciary Committee then delivers a full report to the House with its findings including whether or not grounds for impeachment exist and which allegations should be considered.  If it believes impeachment is founded it will draft Articles of Impeachment.  

The House will then debate the articles before voting on Articles either as a whole or individually.  If any pass through a simple majority vote, a resolution is sent to the Senate notifying them of the actions of the House.  The House also selects a manager that will present the charges and the information behind the charges to the Senate.  After receiving the notice the Senate will adopt a resolution notifying the House that it is ready to receive the managers.  After the managers deliver their report to the Senate they return to the House to make a report.  

The Senate then proceeds to hold a trial that plays out much like a criminal trial would.  Each side has the right to call witnesses and to cross-examine witnesses from the other side.  The managers selected in the House serve as the prosecutors, the defendant is allowed attorneys to defend them, and the Senate is the Jury.  As mentioned earlier, in cases where the President is the defendant the Chief Justice is the presiding officer.  If the President is not the defendant, the Vice President or the Pro Tempore of the Senate serves.  There are no appeals or judicial oversights to this trial.  The Senate is the end all be all for what happens during the trail and the results of the trial.  Conviction in the Senate means immediate removal from office and a possible bar from all governmental offices in the future, but nothing more.  Impeachment is not a criminal trial.  As such, a criminal trial can be brought forward after impeachment proceedings regardless of how they turn out.  

This is the road we are now on with regards to Donald Trump and potentially some of his appointees.  Chances are he will not be impeached if history is an accurate judge, but the process is one that should be thoroughly understood.  With the impeachment process being started, it now takes priority over all other matters of state.  Once the inquiry is complete, all other legislative business will stop until the impeachment process is complete.  We will all just have to wait and see what political impacts this has not just with the coming 2020 election but also with the culture of politics in America extending into the future.
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