Impeachment how-to
Many people see chaos in the Trump administration and fear for the nation’s future. The president was duly elected, and yet this presidency has already been marked by lawsuits, an FBI investigation, policy confusion and escalating rhetoric with North Korea. Fortunately, the Constitution offers a direct, doable way to respond to such crises: impeachment.
The Founding Fathers won a revolution against a tyrannical chief executive — “Mad” King George III of England. They were fearful of a similar kind of leader taking charge in the new United States. They embedded in the Constitution an orderly process run by Congress, not the courts, to remove civil officers — the president, the vice president, federal judges, Cabinet members and others — who cause substantial harm to society. The idea, said Edmund Randolph, a leader of the Virginia delegation to the Constitutional Convention, was to circumvent “irregularly inflicted … tumults and insurrections.”
A resolution to impeach must be filed by a House member. If a simple majority of the House votes in favor of at least one article of impeachment, the accused official is impeached and must be brought to trial on the charges before the Senate, which acts as court and jury. If the Senate votes by a two-thirds majority to convict, the official is removed from office (the Senate can, by another vote, make it a permanent ban from public office).
Impeachment is an entirely political process; it isn’t a function of criminal or civil law. As Alexander Hamilton wrote in the Federalist Papers, impeachable offenses are “those ... which proceed from the misconduct of public men or … from the abuse or violation of some public trust. They are of a nature which may ... be denominated political, as they relate chiefly to injuries done immediately to the society itself.”
Impeachment requires no actual lawbreaking, and conviction by the Senate does not mean that an official has been found guilty of a crime. Impeachment requires no intent to do wrong. In fact, the first impeachment conviction in U.S. history involved a judge who was unable to perform his duties due to senility. He was, in other words, incapable of legal intent to do wrong.
Others among the founders gave us more detailed examples of impeachable offenses. James Madison cited negligence, abuse of presidential pardon power, the “wanton removal” of a meritorious officer and betrayal of trust to a foreign power. He feared a president who “might pervert his administration into a scheme of peculation or oppression” (“to peculate” is to steal public funds). James Wilson, one of the few founders who signed both the Declaration of Independence and the Constitution, believed in presidential impeachment liability “for every nomination he makes” and for attempts to “roll upon any other person his criminality.”
Yet the mainstay grounds for every impeachment in U.S. history remains the principle enunciated by Hamilton: harm to society. Two hundred years later, the 1974 House Judiciary Committee Impeachment Inquiry Staff Report, investigating charges against President Nixon, concurred with Hamilton when it concluded, “The crucial factor is not the intrinsic quality of behavior but the significance of its effect upon our constitutional system or the functioning of government.”
Misleading the public or lying in a way that causes harm to society — an allegation in the first Article of Impeachment against Nixon — is impeachable. So too is personal misconduct, subversion of the rule of law or undermining the integrity of the office, as in the Clinton impeachment.
Despite fairly recent proceedings such as those against Nixon and Clinton, there is a general perception that impeachment is an extremely rare and therefore drastic measure. In fact, since the Constitution was ratified, 19 cases have been brought before the Senate. Six have occurred since the Nixon investigation in 1973-74. (That investigation led to the House Judiciary Committee voting to send three articles of impeachment to the full House for a vote. At that point Nixon resigned. The full House never voted on those articles, and thus Nixon was never impeached.) Further, one half of all impeachment convictions (four out of eight) in U.S. history have occurred from 1986 to the present.
In a book he wrote on the impeachments — and acquittals — of Supreme Court Justice Samuel Chase in 1805 and President Andrew Johnson in 1868, Chief Justice William Rehnquist concluded that those cases “surely contributed as much to the maintenance of our tripartite federal system of government as any case decided by any court.” And Rehnquist, who presided over the Clinton impeachment trial in the Senate, further reflected that the impeachment clause still had “considerable play in the joints.”
He was right — impeachment remains not just serviceable but from time to time necessary. Like Rehnquist, we can gain confidence from the history of impeachment in its ability to bring order from chaos, and see it as a tool we have no reason to fear.
Using the tool the founders provided us is neither rare nor drastic.