Robbins: How impeachment works
You say you want a revolution,
Well, you know
We all want to change the world
You tell me that it’s evolution
Well, you know
We all want to change the world
But when you talk about destruction
Don’t you know that you can count me out…
— The Beatles
One of these days — I hope soon — we can all move on to things other than the Man Who Would be King. For now, however, here we are. Again. Genuflecting once more before the altar of impeachment.
As I’m sure Yogi Berra would have observed, it’s deja vu all over again. Only this time, it’s inarguably worse. However — leaving aside for the moment the storming of our Bastille of Democracy, guys in horn-helmeted Viking costumes and all the rest — how does impeachment work? What is the process to bring one to account?
Let’s start first with the Constitution.
Article 1, Section 2 provides that the House of Representatives “shall have the sole power of Impeachment.” Article 1, Section 3 provides that “the Senate shall have the sole power to try all Impeachments … but no person shall be convicted without two thirds Concurrence of the Members present.” The president, vice president and “all civil officers of the United States” are subject to impeachment and, pursuant to Article 2, Section 4, may be removed from office for the offenses of “treason, bribery, or other high crimes and misdemeanors.” Article I, Section 3, Clause 7 provides further that “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, in this second Donald Trump impeachment, how will the process work?
First, an impeachment resolution must be introduced by a member of the House of Representatives. Next, the Speaker of the House must direct the House Committee on the Judiciary (or a special committee) to hold a hearing on the resolution to decide whether to put the measure to a vote by the full chamber and when to hold such a vote. A simple majority of the Judiciary Committee must approve the resolution.
If, as has already happened, the Judiciary Committee approves the resolution, it next moves to the full House for a vote. Once more, if a simple majority of those present and voting approve the article, at that point the president is impeached.
As I write, this much is already water under the bridge.
Next, things move to the Senate.
On Monday, the article of impeachment was delivered to the Senate. According to Senate Impeachment Rules adopted in 1868, the Senate proceedings must begin no later than 1 p.m. the day following delivery of the article.
In this instance, owing to the new administration trying to get its feet under it, and in order to give everyone a chance to catch their breath following the recent whirlwind, a deal has been brokered such that the senators will be sworn in within that time, but then a “stay” will be enacted such that evidence will not be presented until Feb. 8 at which time the impeachment trial will begin.
What may be surprising is that there is no set procedure for the trial. How it is conducted will be determined by the Senate leadership. You may recall that the last time around the maypole of the first Trump impeachment, Senate leadership — then in the hands of the Republicans — determined that no witnesses would be allowed.
In any event …
Members of the House serve as “managers” in the Senate trial. Mangers are sort of like prosecutors in a criminal trial, but not exactly. They will, however, put on evidence that incriminates the president and in support of his conviction.
The president, too, will have counsel to represent him in the Senate proceeding although it’s entirely up to the president and counsel whether he will “put on a case” at all in his defense and, if he elects to, what he will present.
The senators as a “body of the whole” listen to the evidence. The Chief Justice of the United States Supreme Court — Chief Justice Roberts in this instance — presides over the trial. After the evidence is presented, each side is entitled — much like in any trial — to closing arguments, after which the senators retire to deliberate.
Following their deliberations, the senators will reconvene and vote on whether the president is guilty — or not — of the crimes of which he is accused. It takes a supermajority — two-thirds — vote of those senators “present and voting” to convict.
In the usual circumstances, the president — if convicted — is immediately removed from office and the vice president is sworn in as president. In the unusual circumstances here — where the president and VP have already moved on to greener pastures — that part of the process is moot. However, following conviction, if it happens, the Senate can take up the issuing of barring the president from ever holding future federal office which requires only a simple majority vote. Think of this as akin to the sentencing phase of a trial once guilt has been established.
Such an outcome would potentially be consequential in more than one way. Not only would the former president be forever barred from holding federal office, but he could also lose his presidential pension, taxpayer funded security detail and other benefits. As this has never happened before, no one knows for sure.
One last thing.
Even if the former president is not barred from holding future office following possible conviction, one other possibility exists. Section 3 of the 14th Amendment is aimed at preventing people from holding federal office if they are deemed to have engaged in insurrection or rebellion against the Constitution. Since that is essentially what the former president is charged with, if a majority vote of both houses agree that Trump engaged in an act of insurrection or rebellion, then, even absent conviction in the Senate, upon those grounds, he could conceivably be barred from running for the White House again and only a two-thirds vote of each house of Congress in the future could undo that.
Fasten your seatbelts.
It promises to be a wild ride.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include: business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Mr. Robbins may be reached at 970-926-4461 or at his e-mail address: Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale)” and “The Stone Minder’s Daughter,” are currently available at Amazon.com.