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Rules to impeach by — what it takes to remove a president

March 23, 2019

Impeachment talk is in the air. U.S. Rep. Rashida Tlaib of Michigan has announced that she will submit a resolution to the House of Representatives seeking to impeach President Donald Trump. House Speaker Nancy Pelosi has indicated, however, that she will not support such a resolution until more facts justifying an impeachment have been gathered, presumably through Robert Mueller’s and the House Judiciary Committee’s investigations.

So what does it take to impeach a U.S. president?

Impeachment is a constitutionally authorized process by which the legislative branch of the federal government charges and tries officers of the executive or judicial branches with offenses justifying their removal from office.

The process begins when the House charges a federal official by voting in favor of articles of impeachment. The House can impeach a federal officer if a simple majority of its members vote in favor of the articles.

Although the House can charge an official with impeachable offenses, it cannot convict or remove that official from office. Article 1, section 2, of the U.S. Constitution gives the “sole Power of Impeachment” to the House, but section 3 provides that the Senate has the “sole Power to try all Impeachments.”

In this trial, the U.S. Senate determines whether the official charged by articles voted out of the House should be found guilty of any of those charges. Only a finding of guilty by the Senate can remove the official from federal office. Section 3 also limits the Senate’s discretion by requiring that in all such trials:

Participating senators must be under “Oath or Affirmation”

No person shall be convicted except on the “Concurrence of two thirds of the Members present”

Conviction can only be for “removal from office and disqualification to hold and enjoy any Office of honor … under the United States.”

If the president of the United States is impeached, section 3 requires that the “Chief Justice shall preside” over that trial.

Article 2, section 4, of the Constitution states that the “President, Vice President and all Civil Officers of the United states” can be removed from office upon conviction of “Treason, Bribery, or other high Crimes and Misdemeanors.”

Treason typically requires one to have attempted to overthrow the U. S. government by making war on it or by aiding its enemies.

Bribery, in this instance, involves receipt of a corrupt payment made by those seeking a private favor through the use of political power.

The high-crimes-and-misdemeanors language allows a much broader category of impeachable offenses — but it provides little helpful direction to those seeking to identify the serious offenses that would suffice.

Rep. Gerald Ford, who became vice president after Spiro Agnew resigned and president after Richard Nixon resigned, sought to impeach William O. Douglas, associate justice of the Supreme Court.

In that failed effort, he stated in 1970 that an impeachable offense is whatever a majority of the House considers it to be at any given moment in history. However, a 1974 report of the House Judiciary Committee concluded that impeachable offenses should be based on egregious abuses of power, gross violations of the legitimate functions of office, or for using political offices for personal gain.

The House has only ever impeached two presidents. Shortly after the end of the Civil War, the House impeached President Andrew Johnson because he unilaterally fired the secretary of war in violation of the Tenure in Office Act, which required the consent of Congress.

More recently, the House impeached President Bill Clinton for committing perjury and obstructing justice. Both of these presidents were acquitted in the Senate, and therefore were not removed.

In addition, the House Judiciary Committee voted in favor of articles of impeachment against Nixon, but he resigned from office before the full House voted on those articles. After that resignation, the proceedings went no further.

In our history, 19 federal officials have been charged with impeachable offenses by the House. The Senate has removed only eight of those from office by conviction, and all eight were federal judges. The different rate of removal for impeached federal judges and impeached presidents derives, in part, from the different electorally-accountable nature and duration of the offices held.

Federal judges are appointed (the president nominates and the Senate approves or rejects) rather than elected, and they “hold their Offices during good Behaviour.” This good-behavior language has been construed to mean that federal judges appointed under Article 3 of the Constitution hold office for life and cannot be removed except through conviction in the Senate on articles of impeachment.

Presidents, on the other hand, are elected by the electors in the states, which usually, but not always, means they were elected by a majority of those voting. Removal of a president therefore reverses the effects of the electoral process. In addition, the 21st Amendment to the Constitution also limits any modern president to two terms or eight years in office.

Because the Constitution gives “sole Power” over impeachment and removal to Congress, few occasions arise allowing judicial challenge to those decisions. Our country therefore does not have a body of judicial decisions that answer many of the questions raised by the process.

Impeachment and removal therefore remain as largely political acts, even if one does not accept Ford’s blunt statement suggesting that no standard applies in the House.

The impeachment and trial of a president pose a special danger to our political system by seriously disrupting the usual operation of government. Such disruption of government strongly suggests that the offenses charged should consist of official actions that seriously endanger our political system. And impeachment or removal of a president for wholly partisan reasons establishes a precedent that can cause harm to our democracy.

On the other hand, presidents control the executive branch of the federal government and have broad powers to affect our country for good or ill. The dangers posed by a president who engages in the serious abuse or corrupt application of his executive powers therefore can justify the disruption of our government.

The important question is whether the offenses charged are sufficiently serious to justify that disruption.

David Dittfurth is a professor of law at St. Mary’s University School of Law and an expert in constitutional law.