What is Impeachment?
ECU professor provides some answers
This week, the U.S House of Representatives began an impeachment inquiry of President Donald Trump regarding a July 25 phone call between him and Ukrainian President Volodymyr Zelensky. A transcript of the call shows the president requested the help of the Ukrainian government in investigating the son of former Vice President Joe Biden, who’s running for the Democratic nomination for president, and his work for a Ukrainian energy company.
Impeachment is the constitutional process accusing an elected official of a crime in an attempt to remove the official from office, according to the Associated Press.
Hugh M. Lee, a faculty member in the Department of Political Science and Department of Bioethics and Interdisciplinary Studies at ECU, addressed some questions about impeachment. Lee holds a law degree from the Florida State University College of Law.
What is an impeachable offense?
An impeachable offense is bribery, treason or a high crime or misdemeanor by definition in the Constitution. That definition hasn’t really been defined. It means whatever the House feels that it means. It’s an interesting kind of anomaly in the law because it’s a standardless offense. We don’t have any standards to decide if someone is guilty of an impeachable offense. It’s up to the conscience of the Senate, essentially.
How does impeachment work?
Articles of impeachment are presented to the House, and the House may decide to impeach by a simple majority vote, at which time the articles of impeachment (the set of charges drafted against a public official to initiate the impeachment process) are referred to the Senate, where the Senate is to conduct a trial. In order for an individual to be removed from office by the Senate, there must be two-thirds majority of the Senate voting for impeachment, so it’s a much higher standard to be met.
What is the process?
The impeachment process requires that there be someone who feels the conduct constitutes a high crime or misdemeanor or treason or bribery sufficient to refer articles of impeachment to the House floor for a vote. The House can also send a recommendation of impeachment to the House Rules Committee for investigation. And that committee will refer out to the House whether or not articles of impeachment are appropriate, at which time the House will vote on the articles that are presented. If there is sufficient evidence for there to be consideration of articles of impeachment without investigation, it goes to the House Judiciary Committee, and that committee votes on whether or not articles of impeachment should be referred to the House floor, at which time representatives are allowed to vote, if it comes up to a vote. That timeline is dependent on the process, dependent on whether that committee believes there is sufficient evidence to refer it to the House or whether or not it dies in committee.
The process of impeachment by the House is solely by rule. The Constitution doesn’t dictate the process by which impeachments are considered by the House or tried by the Senate. It’s silent with regard to the process to be used. So those two bodies have initiated their own processes for the impeachment process.
What is the House looking at now?
The question being asked right now is whether or not President Trump’s contact with the Ukraine government to solicit help investigating a member of Vice President Biden’s family constitutes some kind of impeachable offense. We don’t have very many good historical examples of what a high crime or misdemeanor is or whether or not a communication like this would constitute treason, so this would be a novel case.
We’ve had a lot of speculation about impeachment since President Trump took office, whether that impeachment would be based on the Emoluments Clause, which prohibits presidents from receiving money or other gifts from foreign governments, or whether that would be based upon the conduct of the Mueller investigation and whether the president obstructed justice in that particular instance. To date, no one has referred articles of impeachment or actually begun a formal impeachment process short of what the House is doing in regard to an investigation.
What happens if impeachment makes it to the Senate, and the Senate does not convict?
It means the president is not guilty. It can be there was not sufficient evidence to convict. You could lose in the Senate but not be removed from office because they didn’t have the sufficient two-thirds majority. What scholars essentially say is impeachment is not a criminal trial in the sense that you’re not punished, you can’t be fined; there is no sentence or punishment except you lose office. Therefore, since it’s not a criminal trial, it serves a different purpose, and that purpose is to remove people from office who are corrupt or are treasonous or who have committed a crime. And so the question in this case is do you think these statements are sufficiently serious to call into question the fitness of the president to be in office.
What are the risks of impeachment to both political parties?
If you’re a Democrat and you’re looking at the possibility of impeachment, there’s kind of this “you better be sure” issue you have. Because if you overreach, if you try to drum up a charge the people don’t really believe is reflective on the president’s fitness to serve, then it looks like a witchhunt, then it looks like a use of political power to try and remove a president from office who didn’t do anything wrong.
But if you’re the Republicans and if you circle the wagons and decide you’re going to defend too strongly against an impeachment charge that has legs, that actually has public support, that has political support, that is likely to pass the House, and you’re going to stake your hopes on the ability to defend President Trump against these allegations and you lose, the political consequences could be significant for you. Now you look like you’re complicit in a process of trying to rig the electoral system by engaging foreign governments to dig up dirt and provide information that would prejudice the electoral process.
So I think there are risks to both parties in the process, and I think that’s why the Democrats have been hesitant to move forward on some of their claims of impeachment. They are worried that there’s not enough popular support, political support, for articles of impeachment for a president whom at least among a certain percentage of the electorate is very, very popular.
How many officials have been impeached?
It’s in the teens. Most impeachments that have been tried in the Senate have been impeachments of sitting federal judges. And there have been one or two senators who have been through the impeachment process. There have been two presidents in our history who have had articles of impeachment voted out of the House of Representatives, and they are Andrew Johnson and Bill Clinton. Both were acquitted in their impeachment trial in the Senate. President Nixon resigned before articles of impeachment could be voted on.
What else do we need to know?
It’s important to remember impeachment is a political process. It’s enshrined in the Constitution for the purpose of being able to remove officers who don’t act in the interest of the United States, and it is a political process that is defined by the political bodies responsible for it under the Constitution. The Supreme Court has said we’re not going to review whether their processes are good processes or bad processes, because the court considers it to be a political process. The Constitution says the Senate tries it, not the courts. It doesn’t say anything about how you do it.