“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.” — Article II, Section 3 of The Constitution of the United States of America
Now that we’re in a phase of impeachment hearings against President Donald Trump where constitutional questions are the focus, it may be helpful to (for those who aren’t watching the hearings closely) to know what impeachment is, and what it isn’t.
What impeachment isn’t: It’s not the removal of a president from office by a majority vote in the House of Representatives.
What impeachment is: The congressional prosecution of a public official (in this case, President Donald Trump) by the House of Representatives on charges that he committed illegal or unconstitutional acts as president.
Have you ever served on a jury? I have. But you don’t have to know what goes on inside a trial (jury or otherwise) because, well, trials have been on TV and in the movies for decades. However, what we’re seeing in these hearings is a slightly different version of trials in the U.S. courts. The impeachment hearings are various phases the House takes to formally charge (or not charge) a president with Article(s) of Impeachment.
The first phase was for the Speaker of the House Nancy Pelosi to announce that she is starting a formal impeachment inquiry. She did that. Then, the House voted on approving that decree which allowed various committees to begin a fact-finding process to gather witness statements, documents, and other evidence demonstrating the president committed the kind of acts the Constitution says are grounds for the House to prosecute a president. That’s the second phase.
Representative Adam Schiff is the chair of the House Intelligence Committee, and for weeks he had a number of witnesses give testimony to the committee members (both in private and public) detailing what they knew about Trump’s role in committing crimes or unconstitutional acts by asking Ukraine’s president for a “favor” on the following:
- Ukraine needed to conduct a public investigation of Democratic presidential candidate Joe Biden’s role in pressuring Ukraine to fire a corrupt prosecutor while Biden was Vice President.
- Ukraine needed to conduct a public investigation of Joe Biden’s son, Hunter. Specifically, Hunter Biden’s role as a board member for a Ukrainian natural gas company while his father was Vice President. The belief (based on rumors, but nothing factual) was that Joe Biden used military aid as leverage to fire a Ukranian prosecutor who shirked his responsibilities in investigating the company his son worked for. Trump and other Republicans say Biden engaged in bribery with Ukraine to protect his son from legal jeopardy in Ukraine. Biden allies say that’s just not true. Joe Biden was acting on U.S. and E.U. interests (not personal interests) to oust the prosecutor general because he (Viktor Shokin) wasn’t doing his job. Joe Biden’s actions actually lessened corruption in Ukraine and did not increase it in a manner that would benefit his son.
- Ukraine needed to investigate the belief (and one lacking any proof) that a California-based computer security company used by Hillary Clinton’s campaign was responsible for the 2016 U.S. election interference. This would eventually lead to Ukraine taking the blame for Russia’s interference in the U.S. election and pave the way for economic sanctions to be lifted against Russia by the U.S.
In exchange for those “favor(s),” the Trump administration would release almost $400 million dollars in military aid that was approved by Congress — money the president held back until Ukraine agreed to Trump’s demands. Oh, and Trump would also agree to meet with the Ukranian president at the White House on some future date.
Part of that “favor” explained above is bribery — and it’s an impeachable offense listed in the U.S. Constitution. Now, what is the legal definition of bribery? It’s pretty simple:
Bribery: A crime where money or some other thing of value is offered or accepted in order to influence a public official in a way that benefits the private interests of another.
There are other impeachable offenses the House is exploring. Obstruction of justice and asking a foreign government to interfere in a presidential election (also a crime). These fall under the heading of “High Crimes and Misdemeanors” — which aren’t always crimes that can be tried in a court of law. It’s more like a broad term for misconduct that’s a corrupt abuse of the public trust.
We’re now in phase three of the impeachment hearing with the Judiciary Committee taking the lead to ask constitutional scholars if what the Intelligence Committee gathered from fact witnesses and other evidence rises to the level of impeachment. Representative Jerry Nadler is the chair, and while he’s not as eloquent as Schiff, he’s running a tight ship during a process that can get unwieldy, contentious, and prone to yelling. All that was on display at times today, but the four experts brought in made the case for and against impeachment over Trump’s actions. What these witnesses say and what the committee members enter into the record will eventually form the articles to impeach the president. There will be a mixture of referencing legal statutes with other evidence (like part of the Mueller Report on Obstruction of Justice).
So what happens if a majority of House members vote to impeach Trump? Those articles (i.e., charges) get sent presented to the U.S. Senate by the House managers where they hold a trial with evidence and witnesses to argue in front of the jurors (in this case, the senators) why the president should be removed from office. The president will have a chance to defend himself during the trial with his own evidence to argue against the charges.
And yes, the power of the Senate in this process is also spelled out in the Constitution:
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. — Article I, Section 3, Clause 6 of The Constitution of the United States of America
There have only been two impeachment trials of U.S. presidents. One against Andrew Johnson (which lasted around three months) and one against Bill Clinton (which lasted 21 days). Both were acquitted and both were not removed from office.
The calendar for impeaching Trump in the House is moving fast, but there are still some wildcards that could come into play. One witness who figured heavily in the Mueller Report was Don McGahn, who was the White House Counsel for Donald Trump (I should note that the White House Counsel is not the same as a personal lawyer for a president. Trump’s personal lawyer was Michael Cohen, but he’s now in jail. His current personal lawyer is Rudy Guliani — who is very much involved in a shadow foreign policy and pressuring Ukraine to investigate Joe Biden and the other “favors” listed above). A judge ruled that McGahn did not have absolute immunity from congressional subpoenas, so he may end up testifying to the Intelligence Committee at a future date. However, he could also decline to answer questions on the grounds of “executive privilege.”
Where this is all heading is clear: the House has the votes to impeach Trump, and the Senate has the votes to block a 2/3 majority of senators present at the trial to convict and remove Trump. So what’s the point of all this? Well, there’s a thing call Separation of Power and Checks and Balances. If you’ve taken a basic U.S. Government course (maybe in high school, maybe in college), you know that presidents do not have the power to “do whatever [they] want” (in Trump’s words). We don’t have a monarch/king as a president. Rather, we have an elected official who is granted authority by The People (and not God) to “preserve, protect and defend” the Constitution. Part of that oath a president takes is to make sure that those governmental powers are respected (like the power of Congress to investigate) and complied with. But the current president is both acting and arguing that he does not have to comply with congressional investigations and he, as president, is completely above the law and cannot be held accountable if there’s a breach of public trust, a clear criminal act, or other impeachable offenses because, well, he’s the president. This is not just an opinion Trump has, he has lawyers who are arguing that point in court, and he has an Attorney General who has written that presidents are immune from criminal prosecution while in office.
If Congress does not hold this president accountable for actions that rise to the level of impeachable offenses, it will erode the system of government that we’ve been living under for over 200 years. It will make it very clear that this president — and any future president — does not share power equally with the other two branches of government. And because he or she is above the law, there is no way Congress can punish criminal and impeachable actions that are listed in the Constitution. Clearly, this is not what the Framers of our system of government wanted, nor what a number of Americans fought and died to protect.
