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It's Not So Easy to Impeach a President

Every president in the last 20 years has prompted mutterings and threats of impeachment.  But, what exactly is impeachment?

Most people don’t really understand the process or what is required to impeach a sitting president of the United States.  People often believe that impeachment is analogous to a criminal conviction.  It isn’t.  Impeachment is more like being indicted for a crime.  A criminal defendant who is indicted still has the presumption of innocence.  He won’t be adjudged guilty until he goes to trial and is convicted of the crime. The same is true when the House of Representatives votes to impeach a president.  The President is not automatically thrown out of office.  He must be tried by the Senate before he loses his job.

The Constitutional Basis for Impeachment

Specific provisions of the Constitution provide the basis for impeaching a president and other holders of high office.  Article I, Section 2 gives the U.S. House of Representatives the sole power to draft Articles of Impeachment and to vote for or against Impeachment. 

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.

You will note the Constitution requires both impeachment and conviction.  It is a two- step process.  Article I, Section 3 gives the U.S. Senate the sole power to try a President once he has been impeached by the House.

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. 
Judgment in cases of impeachment shall not extend further than removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States, but the party convicted shall nevertheless be liable and subject to indictment, trial judgment and punishment according to law.

The House brings and votes on the Articles of Impeachment; the Senate tries the case and votes to either convict or acquit.  If the Senate convicts the President, he is removed from office and become subject to indictment and criminal prosecution.

The History of Presidential Impeachments

We all took American History in school and learned that Andrew Johnson was the first president to be impeached.  Did he get booted out of office?  No, he did not.  This is what happened.  Johnson had been Abraham Lincoln’s Vice President, and he succeeded to office after Lincoln was assassinated.  The Civil War was winding down when Lincoln was re-elected as president.  Five weeks after the inauguration, John Wilkes Booth killed the president.  Johnson took office just as the war ended.  Lincoln had outlined a moderate proposal for dealing with the South, but the radical hardliners in Congress favored a harsh approach. Congress wanted to punish the former Confederacy with bills forcing the South to accept voting and property rights for blacks.  Johnson, a virulent racist, opposed any legislation intended to force the South to respect the rights of newly freed slaves.  He used his veto power to block legislation and his appointment power to put like-minded men in charge in the southern states. 

Congress moved to block Johnson by passing the Tenure of Office Act, which prevented Johnson from firing any confirmed appointees without Senate approval.  Secretary of War, Edwin Stanton, a holdover from Lincoln’s cabinet, sided with Congress.  He used his position to spy for Congress and to frustrate Johnson’s goals.  Johnson fired Stanton from his cabinet.  A few days later, the House of Representatives voted to impeach Johnson by a vote of 128-47.  The gist of the complaint was that Johnson violated the Tenure of Office Act. 

The trial took place two months later, on the floor of the Senate.  The argument was whether firing Stanton was enough to be considered a high crime or misdemeanor.  The Senate’s vote to convict Johnson fell short by one vote.  Not able to muster the two thirds majority required by the Constitution, the Senate vote acquitted Andrew Johnson of the impeachment charges.  He retained his office.

The next time impeachment came up was with Richard Nixon.  When the facts of the Watergate burglary came to light, Nixon resigned from office before the House could vote on Articles of Impeachment.  The last President to be impeached was Bill Clinton.  In 1998, the House voted to impeach President Clinton on two counts – perjury and obstruction of justice.  These charges were based on the allegation that the President lied to the Grand Jury about having an extramarital affair with White House intern, Monica Lewinsky.  In January of 1999, the impeachment trial in the Senate began.  William Rehnquist, Chief Justice of the Supreme Court, presided over the trial.  As with Johnson, the prosecution needed a two thirds majority of the Senate to convict the President and remove him from office.  The vote failed, with not even a bare majority in favor of conviction.

The Legal Basis for Impeachment

The basis for impeaching a president is set forth in the United States Constitution.  Article I, Section 2 of the Constitution states: “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.”

That gives us the legal standard for impeaching a president – treason, bribery, or other high crimes and misdemeanors.  Other than treason and bribery, what are “high crimes and misdemeanors?”  Gerald Ford once said that an impeachable offense is: “whatever a majority of the House of Representatives considers it to be at a given moment in history.”  However, most legal scholars disagree. Some believe there must be an indictable crime and base their view on a statement in Article III, Section 2 of the Constitution, which states:”the trial of all crimes, except in cases of impeachment, shall be by jury.”  The clear implication, of course, is that an impeachable offense must be a crime.

Others believe the misdemeanor language indicates that a serious, criminal act is not required for impeachment.  They believe that a serious neglect of duty or mismanagement is enough to impeach.  Yet another group proposes that while a crime is not required, mismanagement or negligence is not enough.  The impeachable act must be a serious dereliction of duty.  It must, in some way, compromise the Office of President. 

While treason and bribery are clear, other impeachable offenses remain somewhat murky.  No law has ever been passed that defines the term “high crimes and misdemeanors.” The interpretation can and does change with the times.

Resources

www.constitutioncenter.org/media/files/constitution.pdf

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