I am hearing so much noise – most of it from the right but some of it from the left – about the impeachment process that is simply incorrect that I thought I would give a quick guide to the process and what testimony there has been to date in the current impeachment inquiry. And while I am a law professor, most of this comes from research I did back in the 70’s in I.S. 144 during the Nixon impeachment process. Thanks to Mr. Ron Imundi, my social studies teacher and a staunch Republican, who nevertheless thought it was important for us to understand what was going on and why, although he considered Richard Nixon a great President, he simply had to go.
What is Impeachment?
Impeachment is the process by which a legislative body brings charges against a government official. Impeachment does not in itself remove the official definitively from office; it is similar to an indictment in criminal law and so it is basically a statement of charges against the official brought by the legislative body after investigation.
Article I of the US Constitution gives the House of Representatives the sole power of impeachment and the Senate the sole power to try impeachments of federal officials, including the President. An official who is impeached faces a second legislative vote by the Senate, which determines conviction, or failure to convict, on the charges listed by the impeachment. The US Constitution requires a super-majority to convict. A super-majority is two-thirds of the members.
What are Impeachable Offenses?
The Constitution limits grounds of impeachment to “Treason, Bribery, or other high Crimes and Misdemeanors.” This has led many Fox commentators and some US Senators to say “I don’t see a crime here” as a defense of the President. The precise meaning of the phrase “high Crimes and Misdemeanors” is not defined in the Constitution itself.
But let’s be clear about one thing: It does not have to be a crime and it has never been held to have to be a crime by any court or legislative body despite the language in the Constitution. In fact, the House has brought around 70 proceedings for impeachment since 1789 (mostly for federal judges) and the vast majority were for offenses that did not constitute crimes. Obstruction of justice – not rising to a criminal level – and abuse of power have often been invoked to impeach Federal judges. Most recently Federal Judge Thomas Porteous was impeached and convicted for “corruption.” Other Federal officials have been impeached and removed for drunkenness, biased decision-making, or inducing parties to enter financial transactions, none of which is specifically criminal.
Several commentators have suggested that actually Congress alone may decide for itself what constitutes a “high Crime or Misdemeanor”, especially since the Supreme Court decided in Nixon v. United States that it did not have the authority to determine whether the Senate properly “tried” a defendant. In 1970, then-House minority leader Gerald Ford (R-Mich) defined the criterion as he saw it: “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”
What’s the Burden of Proof?
The burden of proof required for impeachment is also left to the discretion of the individual Representatives and for conviction, to the Senators. Defendants have argued that impeachment trials are in the nature of criminal proceedings, with convictions carrying grave consequences for the accused, and that therefore “beyond a reasonable doubt”should be the applicable standard. House Managers have argued that a lower standard would be appropriate to better serve the purpose of defending the community against abuse of power, since the defendant does not risk forfeiture of life, liberty or property for which the reasonable doubt standard was originally set
Former Representative Bob Barr, Republican of Georgia who served as a House Manager during the Clinton impeachment trial and is also a former United States Attorney stated, “Impeachment is a creature unto itself. The jury in a criminal case doesn’t set the rules for a case and can’t decide what evidence they want to see and what they won’t.”
Since 1789, the House has only voted to impeach 17 times. Of those 17:
No official has been charged with treason. (In 1797, the first impeachment ever, Senator William Blount (Tennessee) was impeached for assisting Britain in capturing Spanish territory. In 1862, Judge West Hughes Humphreys (also Tennessee) was impeached and convicted for siding with the Confederacy and taking a position as a Confederate judge during the Civil War.)
The rest were impeached for a variety of offenses, as stated above, mostly dealing with abuse of power and corruption, but no criminal conduct. The most over-reaching abuse of the impeachment power, in my opinion, was in 1953 when the House commenced impeachment proceedings against Supreme Court Justice William O. Douglas for granting a temporary stay of execution to Julius and Ethel Rosenberg; the case was dismissed by the House Judiciary Committee prior to a vote.
Two US Presidents have been impeached (no, one was not Richard Nixon, who resigned prior to a vote on impeachment).
Andrew Johnson was impeached in 1868 for violating the Tenure of Office Act which prohibited Presidents from firing certain members of the administration without Senate approval (the Act was later declared unconstitutional by the Supreme Court). He was acquitted by the Senate on May 26, 1868, which voted 35–19 in favor of conviction, falling one vote short of two-thirds.
William Jefferson (Bill) Clinton was impeached in 1998 for lying to a Grand Jury convened by Special Prosecutor Kenneth Starr; the lie being that he stated that he had not received oral sex from Monica Lewinsky in the Oval Office, when he in fact had. Another article of impeachment was for obstruction of justice for refusal to obey a House subpoena to turn over certain documents in connection with that investigation. He was acquitted on February 12, 1999 with a vote of 45-55 on the perjury charge and 50-50 on the obstruction charge. The Senate was comprised of 55 Republicans to 45 Democrats at the time of the vote.
What would the trial look like?
The Chief Justice of the Supreme Court would preside over the trial in the Senate. The House would appoint certain representatives to act as House Managers (essentially prosecutors). In the Clinton case, 17 House members were appointed managers.
After a reading of the formal impeachment articles, a trial would begin, with the calling of witnesses and the introduction of documents. The President’s lawyer would have the right to cross-examine witnesses, challenge the admissibility of the documents and call his own witnesses and present evidence. The Senate would basically act as jury, deliberate and vote.
Is it Public?
The trial is public, but the investigation in the impeachment process is normally not public. The accused – or the intended accused – does not have a right to participate in the process. In fact, to go back to the Clinton case, Ken Starr was widely criticized for making public certain elements of the investigation. His original report was not provided to President Clinton and was not made public until days after it had been submitted to the House.
This week, several GOP House members stormed into a closed deposition of a high-ranking foreign service official testifying as part of the impeachment inquiry. This sideshow disrupted the proceedings for about five hours until they were removed by the House’s Sergeant-at-Arms. Two things are wrong about the spectacle. (1) It is entirely proper and in fact customary for these to be secret and for the accused to NOT be given any information regarding the ongoing investigation. (2) Several of the GOP House members who staged this protest are on the very committee doing the depositions and would have been in the room they stormed if they just showed up for the deposition. The committee has GOP members on it. This is nonsense.
I am always shocked but pleased to see alleged conservatives care so much about an accused’s rights. Every day, in all 5 boroughs of NY, dozens and dozens of cases are being presented to Grand Juries without any input from the accused. The accused are not entitled to any notice and they are not entitled to know who is testifying or what evidence is being presented. This is exactly the process that applies to an impeachment proceeding.
The trial before the Senate would be public.
NOTE: Stop reading here if you only want to know about impeachment in general. The reset of the piece discusses the specifics of the Trump impeachment inquiry.
Where Are We on Trump to Date?
“An impeachment inquiry against President Donald Trump, was initiated on September 24, 2019. It began after a whistleblower alleged that President Trump and top administration officials had pressured the leaders of foreign nations, most notably Ukraine, abusing the power of the presidency to advance Trump’s personal interests. These allegations have been corroborated by testimony so far by William Taylor, the United States’ top envoy to the Ukraine and Trump-appointed White House administration official Fiona Hill and at least six other White House officials, and other witnesses. Additional allegations of misconduct emerged in the days afterwards. The whistleblower’s report was largely based upon information given to them by more than “half a dozen” U.S. officials and has been largely corroborated. The report also implicated Rudy Giuliani, Trump’s personal attorney and US Attorney General William Barr as part of a more widespread pressure campaign directed towards the Ukrainian government. The first whistleblower’s complaint was given to Congress on September 25, 2019, and released to the public the next day. A second whistleblower came forward on October 5, with “first-hand knowledge of allegations” associated with the call between Trump and Ukrainian President Zelensky.”
Since then, Ukrainian officials have also confirmed that they were aware of the quid pro quo being applied. White House Chief of Staff- sorry Acting Chief of Staff- Mike Mulvaney confirmed in a press conference that there was a quid pro quo; that it was routine; and the the country should “Get Over It”. He has since tried to backpedal off those statements.
In her October 14 testimony, Fiona Hill, Top WH advisor on Europe and Russia, a Trump appointee, testified that she and John Bolton then the US National Security adviser objected strenuously to the hijacking of foreign relations with Ukraine by Giuliani. She stated Bolton resigned because he would not be part of (his words) “a drug deal” between Giuliani’s crew and Ukraine.
In his October 16 testimony, Michael McKinley, a Trump appointee, four time ambassador and former senior adviser to Mike Pompeo said:”The timing of my resignation was the result of two overriding concerns: the failure in my view of the State Dept. to offer support to Foreign Service employees caught up in the impeachment inquiry on Ukraine and second by what appears to be the utilization of our ambassadors overseas to advance a domestic political objective. “
In his October 17, testimony, Gordon Sondland, Ambassador to the European Union, Trump appointee and major donor, stated that President Trump had delegated US foreign policy on Ukraine to Rudy Giuliani – a decision he disagreed with but was compelled to follow.
NOTE: As you can see, AFTER they testify, the House releases the transcripts after they have been vetted to make sure that they are not undermining national security and ongoing work by the Foreign Service.
Also NOTE: This to me is very clear and compelling evidence of an abuse of power by Trump and I think more than enough to impeach. I mean, if Clinton could be impeached for lying about getting oral sex, then well, this sure seems worthy of impeachment.
But I also believe there’s lots more coming.
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