Robbins: Impeachment isn’t removal from office
Last week, Congress inched ever closer toward impeachment of the president. The House Judiciary Committee’s “Resolution for Investigative Procedures Offered by Chairman Jerrold Nadler” outlines procedures that will apply to “the presentation of information in connection with the Committee’s investigation to determine whether to recommend articles of impeachment with respect to President Donald J. Trump.”
The resolution articulates four points that can be summarized as follows:
- The chairman can designate full committee or subcommittee hearings for the purpose of obtaining information in connection with the committee’s impeachment investigation.
- Committee staff designated by the chairman and the ranking member can ask questions of witnesses for a total of one hour, equally divided across the parties (in addition to the normal questions from members).
- Information obtained through letter requests, subpoenas, depositions, transcribed interviews or interrogatories will be treated as “executive session” material (as such, the information will not be public and cannot be released by members or staff without the consent of the committee).
- The president’s counsel may respond in writing to information presented in open session, and the chairman, after consultation with the ranking member, may invite the president’s counsel to review and respond in writing to executive session materials.
Let’s unbundle that before we forge on.
Although the foregoing has the blush of presidential impeachment, it is what a peck on the cheek is to consummated love. It is the dipping of one’s toes in the icy waters of actual impeachment. Rather than a full-blown impeachment proceeding, the Judiciary Committee’s act is the commencement of the House’s inquiry and investigation into whether articles of impeachment should ultimately be brought.
Speaker Nancy Pelosi has danced as far away from it as she is able while still maintaining a tenuous toehold on the tightrope dividing the warring factions of her party.
But this not-quite-yet-impeachment resolution is a start. Whether it ultimately blooms into articles of impeachment being brought against the president is a gambler’s bet. What it does raise, though, is the need to understand what impeachment is, what its basis is in the U.S. Constitution and, if it flowers, how it would proceed.
First off, impeachment is an inherently political process. Sure, it has the whiff of criminality about it, but that is not its sine qua non.
Article 2, Section 4 of the constitution provides, “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.”
Like much else of the constitution, the provision is a spare little thing and leaves wide latitude for interpretation. Treason and bribery are pretty easy but what, exactly is a “high crime” or, in the context of impeachment, a “misdemeanor?”
Impeachment isn’t removal
Many people wrongly (and understandably) believe that “to impeach” means “to remove” from office or some equivalent. It does not. Literally, to impeach means “to accuse.” It is the process by which a lawfully constituted body proceeds against a public officer for a suspected crime or other serious malfeasance. Once accused, the matter must be heard before a proper court, by presentation of an accusation of wrongdoing, in writing, called “articles of impeachment.”
In the instance of presidential impeachment, the written accusation or, “articles of impeachment,” would be brought by the House of Representatives and presented against the president. The House would be the prosecuting body and, once all the evidence is collected, the matter would be brought before the Senate to decide as the “jury.”
To convict one of an impeachable offense, 67 of the 100 senators would have to vote in favor. By the way, the Chief Justice of the Supreme Court would sit as the judge. Among those old enough, can you ever forget Chief Justice Rehnquist in the Clinton impeachment hearings resplendent in his Valkyrie robe?
Under Article I, Section 2, Clause 5 of the Constitution, the House of Representatives “shall have the sole power of impeachment,” that is, the sole power to formally bring charges. Under Section 3, Clause 6 of that Article, “the Senate shall have the sole power to try all impeachments.” In other words, the Senate is the proper “court” in which formal charges against the President may be heard.
In our history as a nation, there have been two impeachment trials against the president. The first, against Andrew Johnson, who succeeded Abraham Lincoln after his assassination (an admittedly hard act to follow), failed by a single vote. The second, against Bill Clinton, similarly went down in flames. No, Richard Nixon was not impeached but had he not resigned, he would have been, and the writing was on the wall that he would likely have been the first (and, so far, only) president found guilty and removed from office.
Whether Trump will have articles of impeachment brought against him remains a tantalizing open question. The latest resolution is, however, the first tippy-toe step down that fraught-with-danger path.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce, and civil litigation. Robbins may be reached at 970-926-4461 and firstname.lastname@example.org.