WASHINGTON, November 11, 2016 – Google reports that one of the hottest searches post-2016 election is “how to impeach a president.” The implication is that many in the anti-Trump camp are preparing to pounce and start proceedings against the not-yet-president.
The talk of impeachment reached a fevered pitch this weekend, with an online petition calling for impeachment of Donald Trump gaining signors at a galloping pace, and Professor Allan Lichtman – who predicted the Trump victory – saying he believes Trump will face impeachment shortly after taking office. Not to mention that Michael Moore is also predicting a Trump impeachment.
Enthusiasm is one thing, but information is another. So pull back a bit before launching.
Impeachment is a well-codified process explained in the Constitution.
Before screaming “Article II, Section 4,” familiarize yourself with the process, rules and regulations of impeachment.
First, you can’t really invoke a citizens arrest regarding impeachment. Even if every American not holding office wanted it to happen, it couldn’t. Impeachment is up to Congress. Citizens can, of course, nudge representatives in that direction through letters or phone calls (or petitions), but it is probably best to wait until the individual in question commits a crime.
Impeachment was included in the Constitution after a rousing debate by the framers. According to the notes of James Madison, the drafters of the Constitution initially considered giving the legislature the ability to “remove the Executive at pleasure.” The next round of wording considered removing the Executive for “malpractice or neglect of duty.” The debate raged, the words continued to shift, until eventually – with some grumbling – they agreed on the wording for Article II, Section 4, which states:
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.
The actor who brings impeachment is the Congress. According to Article I, Section 3:
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.
Judgment in Cases of Impeachments 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.
One critical point here is that impeachment involves a public official. (Note: For those unaware, Trump isn’t yet in office. He’s not yet a public official. He therefore can’t face impeachment at this time.)
The other point regarding impeachment is that an official is not necessarily removed from office if he or she is impeached. That’s a separate step.
As noted in the Constitution, the reason for impeachment is “Treason, Bribery, or other High Crimes and Misdemeanors.”
Treason is pretty straightforward. Article III, Section 110 of the Constitution says, “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open Court. The Congress shall have power to declare the punishment of treason.”
Likewise, bribery is pretty clear cut.
It’s the “High Crimes and Misdemeanors” that gets tricky. Essentially, it is up to the House of Representatives to decide what constitutes an impeachable offense. Serious offenses and abuses of power are generally cited in this category. However, an impeachable offense does not have to be a crime. It just has to involve something the House decides is a “high crime” or “misdemeanor.”
Impeachment occurs when the House of Representatives votes with a simple majority to pass the articles of impeachment. The Senate then holds a trial to decide whether or not to remove the president from office.
In the history of the United States, the House has passed articles of impeachment on two presidents. Both Andrew Johnson and Bill Clinton were impeached. Johnson violated the Tenure of Office Act, and was acquitted by the Senate. Clinton was impeached for perjury and obstruction of justice and was also acquitted.
President Richard Nixon was not impeached over Watergate. He resigned before the House could pass the articles of impeachment.
The trial phase of the process is what usually gets the most attention, and is generally speaking the juicy part of the process. Witnesses testify in front of the Senate, presided over by the Chief Justice of the Supreme Court. At the end of the trial – which is not a criminal proceeding – the Senate votes. A conviction requires a two-thirds majority. If convicted, the president is removed from office.
If acquitted, everyone goes back to where they started. The president stays in office and nothing else changes.
In the current situation, impeachment of a President Trump would happen only if the Republican-controlled House and the Republican-controlled Senate said so.
And only if he commits “Treason, Bribery, or other High Crimes and Misdemeanors.”
And only after he actually takes office.