Process and Procedure

Impeachment

The House of Representatives began proceedings to determine whether to impeach the President of the United States.  This is an awesome responsibility, the ultimate “check” in checks and balances.  There are seemingly endless academic debates about which branch of government is the most powerful, but in that argument, impeachment and removal is always the “trump” card (sorry.)  It is the ultimate power of Congress, one that cannot be “checked.”

How awesome is impeachment and removal?  It is such a final authority, that it has only been used against the President three times in the two hundred thirty-two year Constitutional history of our nation (Nixon dodged the process by resigning.) 

 Andrew Johnson was impeached in 1868, nine months before the Presidential election.  While there were several “articles” of impeachment, the major issue was that Johnson intentionally broke a law passed by Congress, the Tenure of Office Act.  At trial in the Senate, he remained in office by a single Senator’s vote.

The House impeached Bill Clinton in 1998.  While again there were several “articles,” the essential charge was that Clinton committed perjury by lying in a deposition.  In the Senate trial, the issue became more about whether that “lie” constituted a removable offense, rather than the “fact” of the lie.  Clinton remained in office.

High Crimes

Normal “crimes” like committing perjury or tax evasion may not be impeachable.  In 1973, the House Judiciary Committee prepared a report viewing the history of impeachment.  It made a distinction between “common” crimes and impeachable crimes.

Not all presidential misconduct is sufficient to constitute grounds for impeachment . . . Because impeachment of a President is a grave step for the nation, it is predicated only upon conduct seriously incompatible with either the constitutional form and principles of our government or the proper performance of constitutional duties of the presidential office.

Impeachment is exercised solely by the House of Representatives.  In 1973, the Supreme Court ruled that the Court had no role in impeachment or removal (United States v Nixon.) Impeachment is the bringing of charges against the President (or others in the executive or judicial branches) for trial in front of the Senate.  Put simply, it is like the bringing of an indictment by a Grand Jury, with the House acting as the Prosecutor and Grand Jury.

Indictment

Like the Grand Jury process, the defendant, in this case the President, has few “rights” in the process.  Grand Juries hear witnesses without cross-examination; the defense has no place in the room, or “right” to present evidence.  The defense has the opportunity to present their side at trial should the Grand Jury bring charges.

The Impeachment process is not regulated by the normal rules of criminal procedure, because Impeachment and Removal is not a criminal process.  The ultimate result is removal from office and restriction from holding future office.  The House and the Senate has the sole power to determine how that process works.

So the recent letter from the President’s attorneys, arguing that the current impeachment process is illegitimate, is simply bogus.  The House determines the process without oversight or appeal, the Senate determines whether to remove or not.  The Courts and the President (or his lawyers) have no role in how the procedure is determined. 

 The White House Counsel’s letter, written in legal form to resemble a court “brief,” hints that the Judiciary will intervene if the Congress persists on impeachment.  But the Courts have no role in this process. The President’s men hope to find a favorable hearing in the Supreme Court, the ultimate “backstop” of Trumpism.  But even there, it is unlikely that the “textualists,” the five man conservative majority, would overturn two hundred thirty-two years of precedent.

Obstruction

Just as the defense cannot “defend” until charges have been brought to the court, the President has no right to present evidence to the House.  The sole role of the House is to determine “cause:” whether impeachable offenses have been committed.  The House itself determines what those offenses are.  It will be in the Senate that the President and his lawyers can make a defense.

But if a President refuses to recognize the legitimate impeachment and removal authority of the Congress, that action itself can be impeachable.  Obstructing the Constitutional power of the Congress clearly would be “…incompatible with (either) the Constitutional form and principles of our government…” In the judicial system it would be called obstruction of justice.  

Here, it is obstruction of Congress.