How Impeachment
Impeachment is the process of Congress attempting to remove members of the Judiciary or Executive Branches. It has two-parts, the bringing of charges; the actual “impeachment” by the House of Representatives and the “trial” in the Senate. Impeachment is similar to an indictment in the court system; laying out the reasons why the individual should be removed from office, “the charges.”
The Senate is the deciding force in the process. They take the “charges” from the House, and they hold a trial to determine the outcome. In the case of Presidential trials, the whole Senate sits as the “jury,” hearing all of the evidence. The House “managers” are the Prosecutors, and the President’s lawyers the defense. The Chief Justice of the Supreme Court serves as the “judge.” In “lesser” impeachments, such as a Supreme Court Justice, a Senator serves as “the judge,” and a committee may hear the evidence and report back to the Senate.
It requires a majority vote of the House to impeach, and two-thirds vote of the Senate to convict. Removal from office and banning from future office are the only punishments the Senate may exact.
Members of the Executive Branch can be impeached for “…treason, bribery, or other high crimes and misdemeanors.” An additional “good behavior” factor is added for the removal of judges. The impeachment process has been used a great deal more than is commonly known: nineteen trials have been held with seven guilty verdicts, nine acquittals or dismissals, and three resignations (ending the process.)
In fact, within the last decade two Federal Judges have been impeached and removed from office, Samuel Kent for sexual assault and obstruction who resigned before the trial was completed, and Thomas Porteous, convicted of accepting bribes and perjury, removed from office and banned from future offices.
Three Presidents have been threatened with impeachment. The first was Andrew Johnson, who became President after the death of Abraham Lincoln. Johnson’s impeachment was primarily political in nature; Johnson was a Unionist added to the Republican ticket in 1864 to help re-elect Lincoln. The radical Republicans controlling the Congress found him to be a huge impediment to their plan of Reconstruction, and ultimately tried to control his administration by altering Presidential power to fire cabinet members.
The Tenure of Office Act extended Senate power to advise and consent for Presidential appointments to removing those appointments as well. Johnson vetoed the Act, but the Congress overrode his action, and it became law. Johnson refused to accept it as Constitutional, and removed Secretary of War Edwin Stanton from office, who barricaded himself in the War Department. Johnson countered by appointing war hero Ulysses Grant as Secretary, and the House voted to impeach on that and associated charges.
The trial of Johnson in the Senate was the “hottest ticket” of the time. And while the Radical Republicans made up two-thirds of the Senate and seemed to have a pre-ordained conclusion, a single Senator, Edmund Ross of Kansas, determined that while Johnson was an incompetent President, his actions did not rise to the Constitutional standards, and by that one vote Johnson remained in office.
Richard Nixon avoided impeachment by resigning in the face of a nearly united Congress threatening removal. Nixon’s impeachment charges included obstruction of justice, abuse of power, and contempt of Congress. A bipartisan group of Senators advised him that the Senate would in fact convict, allowing Nixon to resign before the full House voted on the charges.
Bill Clinton was impeached as a result of the multi-year, millions of dollars Whitewater Investigation. While the originations of the probe were questionable land deals in Arkansas, Clinton himself was ensnared due to his sexual affair with a White House intern, Monica Lewinsky. Clinton was charged with committing perjury in a deposition regarding his relationship with Lewinsky and others, and with a series of actions to obstruct justice. The impeachment resolution passed on a near party-line vote, and went to trial in the Senate. The Senate, after a month long trial, also voted near party-line, with the perjury count failing 55-45 and the obstruction count failing 50-50 (67 votes required to convict.)
The current crisis with President Trump involves some of the same issues as Nixon and Clinton. Obstruction of justice, hindering investigations, and encouraging others to hinder, all seem to be on the table. This probably would not be enough to convict (see Clinton) but a Mueller report that includes conspiracy with a foreign power to influence the election might well change the balance. It would be at that point that influential Republican Senators who have supported the President like Lyndsey Graham and John Cornyn, may well have the same “talk” that the Senate had with Nixon. A Trump resignation would avoid the turmoil of impeachment and conviction.
This is not a Constitutional crisis. The Constitution provides a clear path to resolving the issue, either through Congressional action or popular elections. It would not become a Constitutional crisis until the problems cannot be resolved by Constitutional means, for example, should a five-four Supreme Court inappropriately intervene. Then, with the process failing to resolve the issue, the real crisis in our Constitution would begin.
