Make it So (How Impeachment Works)

Yeah, that's a lame Star Trek reference.  But the topic is pretty serious. I'm talking about impeachment.  I have a lot of friends who live outside of the USA and have voiced opinions on current leadership.  Most of those people wonder why this president is allowed to continue his divisive actions and say we should impeach.  Some information on that was eye opening for me.

Here's how it works:

The Constitution limits grounds of impeachment to "treason, bribery, or other high crimes and misdemeanors".  Unfortunately it isn't specific as to what "high crimes and misdemeanors".   Alexander Hamilton described impeachable offenses as  “the misconduct of public men, or in other words from the abuse or

violation of some public trust.”  These  were political and harmful to all or most of society.  Impeachable conduct could include behavior that violates an official’s duty to the country, even if such conduct is not necessarily a criminal, prosecutable offense. In the past both houses of Congress have given the phrase “high Crimes and Misdemeanors” a broad reading, “finding that impeachable offenses need not be limited to criminal conduct.”

The purpose of impeachment is not to inflict personal punishment for criminal activity. Impeachment is a remedial tool,  serving to maintain constitutional government by removing individuals unfit for office.  Grounds for impeachment include abuse of the particular powers of government office or a violation of the “public trust” which is  unlikely to be specifically barred via statute.

The House has placed little emphasis on criminal conduct when creating articles of impeachment.  Less than a third of the processes have charged that the subject involves  actual "crime";  rather, they have been removed for drunkenness, biased decision-making, or inducing parties to enter financial transactions.  Articles against Andrew Johnson were based on rude speech that reflected badly on the office and President Johnson had made “harangues” criticizing the Congress and questioning its legislative authority, refusing to follow laws, and diverting funds allocated in an army. These behaviors brought the presidency “into contempt, ridicule, and disgrace.”A significant number have been impeached for behavior incompatible with the nature of the office.

These offenses can be things that happened before the individuals assumed their positions.    Eastern District Judge Porteous was charged for making false statements to the FBI and Senate in connection with his nomination and confirmation.  He was impeached and remove from the court in December 2010.  There was substantial evidence that Porteous  committed perjury by signing false financial disclosure forms under oath which concealed cash and things of value that he  received from lawyers appearing in litigation before him.  He was also charged with soliciting those things of value.  There was substantial evidence that Porteous had repeatedly by signing false financial disclosure forms in connection with his bankruptcy, and had made false representations to get a bank loan with the intent to defraud the bank.  Congress considered this as perjury.

The Constitutional Convention rejected language that would have permitted impeachment for "maladministration." It was argued that the definition was too vague.   Directives issued to Congress have cautioned that the grounds for impeachment don't always fit easily into definitions.  The intent of the punishment of impeachment is intended to “reach a broad variety of conduct by officers that is both serious and incompatible with the duties of the office.”  In 2005,  Congress has identified three general types of conduct that constitute grounds for impeachment, but these categories should not be understood as exhaustive.  Abusing the powers of the office the subject has been appointed or elected to is a big one.  Also exceeding that power, or misusing the office for personal gain, behavior that is "incompatible with the function and purpose of the office.  This is very broad.

Not all criminal conduct is impeachable.  In the proceedings agains President Nixon inn 1974, the Judiciary Committee rejected that he committed tax fraud, primarily because that “related to the President’s private conduct, not to an abuse of his authority as President.”  There were other abuses to list for impeachment of Nixon.

"An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history."  ~House Minority Leader Gerald R. Ford, 1970

The 2005 "Overview of the Impeachment Process", prepared by the CRS for Congress states that the President cannot grant pardons for offences against the United States "except in Cases of Impeachment."

The process is relatively simple.  The House of Representatives brings Impeachment charges.  ONLY the House can do this.  The bill then goes to Senate, where formal hearings and further investigation precedes a vote.  The Senate then issues a summons for the accused, who may appear in person or by counsel.  That accused can also choose not to appear at all.  If they don't appear, the proceedings move ahead as if a "not guilty" plea was entered.     The accused (or his legal team) then argues that he or she isn't a civil official, or that the charges do not constitute sufficient grounds.   They may answer the charges and the conversation begins.  The House acts basically as a prosecutor, with the Senate acting as judge and jury.  The Chief Justice of the United States presides over this.

It is rare that a federal public official is impeached, but demands for   impeachments, especially in the case of presidents, are common.    This dates back even to the administration of George Washington in the mid-1790s.  The national adoration for Washington was fading, and Americans had learned that a secret treaty negotiated by his envoy John Jay made demands that many found humiliating. This process was a bit of a precursor to the War of 1812 as well as suspected of hastening Washington's death, even though he was never actually impeached.  He did, thanks to the John Jay debacle, vow to not seek re-election.  I don't blame him.  It was ugly.  Read the whole story here.

Federal officials for whom impeachment proceedings were instituted and referred to a committee of the House of Representatives were few.  The first was in 1779  when Tennessee Senator William Blount was charged with conspiring to assist Britain in capturing Spanish territory.  The Senate rejected the bill, and expelled Senator Blount from the Senate on their own authority.  So far only seven Americans have been impeached.  Many more were acquitted, and many resigned before the proceedings went to vote..

Only four US Presidents have so far been brought up for
impeachment.  The first was James Buchannon in 1860, charged with corruption and acquitted.  Eight years later, President Andrew Johnson was acquitted of impeachment for violating the Tenure of Office Act. The next was President Richard Nixon in 1974.  Charged with obstruction of justice, abuse of power, and contempt of Congress was not impeached because he resigned before the proceedings concluded.  Finally, President Bill Clinton was tried on charges of perjury and obstruction of justice.  He was acquitted in 1999.  No President has ever been successfully impeached. although one senator, Blount,  went through part the proceedings only to be removed by the Senate without conviction.   A Secretary of War was tried in 1876 and resigned.  Seventeen federal judges have faced impeachment, but only five were actually impeached;  most of the rest resigned or were otherwise removed.

Where it gets a little murky is removal from office.  Simply being impeached by the House isn't enough to remove someone from office.  The bill has to pass the rigorous trial by the Senate then the Senate has to pass a bill to remove the president and that bill has to be passed by 2/3 vote, which is 67 sitting senators.  The current Senate has 45 Democrats, 53 Republicans, and two independents.  Only twenty five of them are women, and only nine are non-white.  Ninety percent of the congressional members of congress are Democrats.  As for religion, 86 senators are Christian (including 22 Catholics),  four are Mormons, 8 are Jews, one is Hindu, and five are unaffiliated.  There are no Muslim senators, and only three serve in the House of Representatives.  Statistically this is completely different than the percentages of Americans they represent.   Members of the 116th United States Congress (convened on January 3, 2019) introduced 3,160 pieces of legislation; 95 of those received a vote as of March 22, 2019.

When people ask why President Trump hasn't been impeached yet, it becomes more complicated.  First, it's a lengthy process.  It's quite possible that Trump could be out of office before the conclusion. Since a sitting president usually isn't considered for criminal charges according to the Justice Department policy (the Constitution doesn't address this), he would have to be impeached first, then charged after he was removed.  I doubt the charges would hold up at that point for two reasons.  First, it can probably be argued that the criminal courts don't have jurisdiction over federal employees, and second that conviction after impeachment could be considered "double jeopardy".  It would be tied up in courts well beyond the lifetime of the accused, using valuable time and money without effect.

There are few who detest Donald Trump more than I do, but I get why Pelosi and others are reluctant to move to impeach.  It's a distraction from the real issues (most of which were created in the current administration, in my opinion) and ultimately would not be successful before the next election.  If tampering or brainwashing is successful in re-electing him, that would certainly give more time o make him the first President to be impeached.  Plus, if they don't impeach him, the door is open for criminal charges when he leaves office.  My heart screams "Impeach" but my head says it's pretty pointless and the energy should be spent on more effective means of ending his tirade dictatorship fascist totalitarian Presidency.

https://www.senate.gov/reference/resources/pdf/98-806.pdf
https://www.congress.gov/bill/111th-congress/house-resolution/1031
https://en.wikipedia.org/wiki/Thomas_Porteous
https://www.americanheritage.com/impeach-president-washington
https://www.reuters.com/article/us-usa-trump-russia-indictment-explainer/can-a-sitting-us-president-face-criminal-charges-idUSKCN1QF1D3
https://www.thoughtco.com/impeachment-the-unthinkable-process-3322171
https://ballotpedia.org/116th_United_States_Congress#Analysis
https://www.senate.gov/senators/EthnicDiversityintheSenate.htm
https://www.pewresearch.org/fact-tank/2019/02/08/for-the-fifth-time-in-a-row-the-new-congress-is-the-most-racially-and-ethnically-diverse-ever/
https://www.pewforum.org/2019/01/03/faith-on-the-hill-116/