America has impeached exactly two presidents, and removed neither from office. Wait a second. Doesn’t impeachment mean that the president lost his (eventually her) job?
When the founders designed the Constitution in 1787, they wanted a government strong enough to keep order. But not so strong that it could abuse its citizenry. Call it Madison’s Dilemma, because James Madison agonized over it. They also knew that someday it might be necessary to remove a president who was a threat to the nation. A legal mechanism was needed. That process is called impeachment.
Washington D.C. has been using the “I word” more than usual recently, so we think a refresher on impeachment is helpful. We are neither advocating nor denouncing the impeachment of the president. We note that an independent counsel, Robert Mueller, was appointed and that we have written on the topic of independent counsels here.
Doesn’t impeachment mean the end of a presidency? No, both of our impeached presidents finished their terms. We’ll explain how, but first what does it mean if not that the president is guilty?
Filing charges against the executive
Impeachment means simply that the president was accused by the House. The House files charges, that’s all impeachment is. Once the president is impeached by the House majority, the Senate must hold the removal trial, and two-thirds of the senators are needed to find him guilty.
The Supreme Court Chief Justice presides over the Senate trial. The president is defended by his lawyer, the White House counsel, and the prosecutors are the leaders of the House, called “managers.”
What exactly can the president be impeached for?
The answer to that is both crystal clear and hopelessly muddled. The Constitution identifies “treason, bribery and other high crimes and misdemeanors” as the legal standard for impeachment. In one sense, perfectly clear. Treason–giving Bin Laden the nuclear codes–makes perfect sense. Bribery–here’s the money for the pardon, here’s the pardon for the money–is similarly iron-clad. But what is a “high crime and misdemeanor”? Now, almost any definition could be applied to such vague wording. The terms high crimes and misdemeanors must be redefined depending on the priorities of the people at the time.
Were the president to be arrested for Driving While Intoxicated, would that constitute a “high crime?” Illegal, yes, but was it a threat to the existence of the nation? How about lying in court to cover a sexual affair? President Clinton’s Senate didn’t think so.
The beauty of the Constitution is it adapts to changing times. The definition of a high crime and misdemeanor is subject to the ups and downs of changing national identity.
Two thirds vote necessary for conviction
Under the current Congress, the impeachment and removal of Donald Trump likely would take many months, if not years, to reach resolution. Here’s how it would work:
First, articles of impeachment must be drafted by the House Judiciary Committee based on the findings of an independent counsel. For Trump, who still faces questions about his business dealings, the misdeeds may have occurred before his election. Each article of impeachment specifies a charge and requires a simple majority vote.
Second, the Senate, with “the sole Power to try all Impeachments,” would put the president on trial. The Chief Justice of the United States presides.
If two-thirds of the Senators are vote guilty, the president is removed and the vice president is sworn in. If the vote fails to get two-thirds, the president continues in office.
Last, punishment for the removed president may extend into the future to “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States” That, and infamy in future textbooks.
Once a sitting president has been removed by the Senate, that president is again a civilian and can be prosecuted criminally for those misdeeds while in office.
Congress also can stop short of impeachment and call for a lesser form of sanction like censure, as President Jackson was censured by the Senate in 1834.
Two impeachments and a resignation
President Andrew Johnson was impeached in 1868 for abuse of power. Recall that Andrew Johnson was not elected; he was Lincoln’s VP when Lincoln died. Republicans in Congress loathed Johnson’s protecting of the defeated Confederacy and his pardoning thousands of ex-confederates. Johnson survived in the Senate by one vote and finished his term. The legal pretext to impeach Johnson was his violating the Tenure of Office Act, but that was just covering a political motive.
The real reason Johnson was impeached, historians concur, was Johnson’s refusal to push for social transformation in the defeated Confederacy after the Civil War.
President Bill Clinton was impeached 130 years later for perjury and obstruction of justice. Clinton deceived a court of law as a witness; trying to prevent that court from discovering the truth, that he had been having an affair with his intern. Clinton was impeached for the “high crime” of false court testimony.
Clinton’s defenders acknowledge the deception but deny that it was the mortal threat to the nation. What do you think?
President Richard Nixon was headed for impeachment when he resigned on Aug. 9, 1974, after three articles of impeachment were drafted in the House. The charges were obstruction of justice, abuse of power and contempt of Congress. He later was pardoned by his successor, President Gerald Ford.
When he served in the House, Ford observed that impeachments are both legal and political. Legal in that broken laws are at issue, but political in the sense that representatives of political parties must vote on it.
Could a president be impeached for having a crappy jump shot or wearing ugly neckties? Ford’s observation suggests yes.
Not a prime minister
Impeachment, as the founders viewed it, must be an emergency brake only, used against a clearly criminal president. It must be deployed only for a truly unfit chief executive. If Congress can remove the president easily over policy disputes, then the U.S. would become, like Great Britain, a parliamentary system.
That would turn the president into a prime minister who serves only at whim the majority of the parliament. A prime minister can be thrown out by whoever holds legislative majority. Prime ministers are fine; they just aren’t American.
Impeaching the president must be hard to accomplish, or no future president will be safe from the emotions of a hostile legislature.
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