Impeachment only tested twice
Presidential impeachment, which has nothing to do with peaches but rather comes from Latin via French meaning to accuse and, literally, to trap the foot, is a strange little nook of American law. It has only really been tested twice, with articles of impeachment drawn up against Andrew Johnson after the Civil War for undermining Congress in the Reconstruction effort, and Bill Clinton in 1998 for lying about a sexual affair with an intern. Thanks to a quirk of the Constitution, both remained in office. Richard Nixon was about to be impeached, but he resigned in 1974 rather than face the music for covering up Watergate. Today in Washington, the band strikes up again against Donald Trump, for allegedly extorting the president of Ukraine into interfering in next year’s American presidential election, using military aid against Russian aggression as leverage. It is a right mess, and a peculiarly American piece of political performance art, televised on the networks, heavily scripted, with props. As reality television, it could be the culmination of the Trump era. Or it could be yet another fever dream before the election campaign is unleashed. The National Post’s Joseph Brean explains.
Q How does it work?
A The House Intelligence Committee is hearing the case by calling witnesses who are also cross-examined by a lawyer for the Republicans. The legal test is whether the president has committed “high crimes and misdemeanors,” a term that is not otherwise defined in the Constitution, but which is explicitly said to include things like bribery and treason, and is more closely related to violations of the presidential oath of office than regular criminal offences. If the House concludes there are grounds for impeachment, the House Judiciary Committee will draw up a document known as articles of impeachment. This is similar to an indictment, a statement of allegations, which would then go to the Republican-controlled Senate for a trial. Only the House of Representatives can impeach, and only the Senate can convict on impeachment, with a twothirds supermajority, in proceedings overseen by the Chief Justice.
Q What is Trump accused of?
A Democrats accuse him of an extortion scheme against Ukraine for his personal benefit. The story first came to public attention through a whistleblower who learned details of a call this summer between Trump and Volodymyr Zelensky, the newly elected president of Ukraine. Zelensky did not yet know it, but Trump was holding back hundreds of millions of dollars in military and security aid approved by Congress. This aid represents a key part of the American effort to support its ally Ukraine and to contain Russia’s revanchist and expansionist efforts in eastern Europe, including the 2014 invasion of Ukraine and ongoing occupation of areas such as Crimea. According to a memorandum of the call released by the White House, explicitly marked as not verbatim, Trump asks Zelensky to do “us” a “favour” by investigating Trump’s presumed 2020 opponent Joe Biden, the former vice-president, for allegedly interfering with a Ukrainian investigation of his son Hunter. Trump also asked Zelensky to seek out a server containing emails of the Democratic National Committee that Trump seems to believe is in Ukraine, based on a debunked conspiracy that Russia was framed for meddling in the 2016 election that brought him to power. Behind the scenes, it is also alleged Trump’s subordinates made it clear to Zelensky that without agreement he would not be invited to the White House.
Q How likely is it that the House decides to impeach?
A Quite likely. It is controlled by Democrats.
Q And that the Senate convicts on this impeachment?
A That would require nearly two dozen Republican Senators to side with unanimous Democrats. Trump has had a powerful effect on Republican politicians, and any one who goes against him can expect consequences. Tied Senate votes are broken by the vice-president, who does not otherwise vote.
Q What would happen after a conviction by the Senate?
A That is anyone’s guess. It has never happened before. There is no precedent, only law. The only punishments available are removal from office and “disqualification to hold and enjoy any Office of honour, Trust or Profit under the United States.” This low punitive bar, with no threat to Trump’s life, liberty or property, is one reason he is not automatically allowed to have his own lawyer participate in the hearing. The law is clear. The constitution says the president (and others in lower offices) “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” The impeached person remains liable to separate trial and punishment, although for the president, criminal liability is a famously murky area.
Q Wouldn’t Trump have to accept a Senate conviction?
A Technically, yes. But this is a presidency on the frontiers of plausibility. Other things could happen. He has promised not to accept it, for example. He has characterized the process as undemocratic in inflammatory terms. He does not appear to think, or at least speak publicly, in anything but belligerent hyperbole. It would be wildly out of character for him accept removal from the White House on anything but his own terms.
Q Has he said anything about it?
A Heh. Good one. “What’s going on now is the single greatest scam in the history of American politics,” Trump said in a video released by the White House. “The Democrats want to take away your guns, they want to take away your health care, they want to take away your vote, they want to take away your freedom, they want to take away your judges. They want to take away everything. … And I’ll never let that happen.”
Q Suppose he did accept removal, what then?
A Mike Pence, the vice-president, would take over.
Q Could Trump then run for the presidency in 2020?
A Who knows? As a medieval map-maker might put it: Here be dragons.