If I want to find out about impeachment and don’t want to read beyond a short, bulleted explanation, what do I do?

 Rather than read what follows, check out Jane Koenig’s regular Democratic e-mailed newsletter. She summarized the process in late September, 2019. You can also e-mail her for a copy.

According to Article II, Section 4 of the United States Constitution:

“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.”

What’s the purpose of Article II, Section 4?

Our Founding Fathers were checks and balances fanatics. They feared the corruption potential of power and wanted to ensure that power was not only monitored, but could be successfully checked. That’s one reason our government tends to move slowly. It was a deliberate choice to construct a slow-moving set of political institutions to safeguard against the runaway power of a populist mob. 

This part of the Constitution was written as a way to check the power of the administrative branch between elections. The Founders believed that frequent elections could always check administrative overreach; they hoped “the people” would respond to administrative malfeasance by voting the perpetrators out of office.

However, they reasoned, there had to be some mechanism for an event or series of events that happened between elections and that was so grievous that it warranted removal. The mechanism they came up with was impeachment.

What’s impeachment? Is it like a conviction?

It corresponds to an indictment in our legal system. The House of Representatives is given the power to indict or impeach. As a check on the House, the Founders gave the power to convict to the Senate and they must do so by an overwhelming majority (in this case 2/3s of members present when a conviction vote is taken).

So it’s easier to impeach or indict someone (the House only needs a majority vote), but far more difficult to convict them.

A “conviction” in the Senate carries the following penalties: dismissal from office and disqualification from holding any future federal office. In other words, the Senate cannot impose fines, jail terms or capital punishment. However, the successfully impeached individual, once removed from office, can be tried in court and subject to further punishment, according to applicable law.

How does the process work?

An individual or a committee brings impeachment charges before the House of Representatives in a session over which the Speaker formally presides. Often impeachment “charges” are referred to a committee for further investigation or to a special committee. After additional investigation of the charges and committee debate, that committee can “vote out” impeachment charges to the full house. The house can then engage in debate on the issue and, once debate is closed, if a majority of votes are cast for impeachment, the person charged is “indicted.”

A committee from the House, chosen by the Speaker, then takes the charges to the Senate for trial. The Senate convenes in a formal trial and listens to the presentation of evidence. It then votes and if 2/3s of members present agree with the charges, the individual is convicted and removed from office. The Chief Justice of the Supreme Court presides over the trial. The person accused is allowed to put on a defense against the charges. The leader of the Senate (pro forma leader is Vice-President Pence; actual leader is the majority head Mitch McConnell) can define the rules of the trial, although usually the Senate relies on precedent or what happened in prior impeachments.

The Senate can never impeach. The House can never convict. Those roles are separated.

What are “high crimes and misdemeanors?”

The phrase is an English legal term that dates to the 14th-century. By the time the Founders were penning our Constitution “high crimes” was understood to mean behavior contrary to one’s oath of office. It did not then refer to crimes in the way we commonly understand that term (robbery, murder, assault, etc.), but had a political connotation. An officeholder committed a “high crime” by betraying the trust placed in him by virtue of the office s/he holds. “High crimes and misdemeanors” became the 18th-century catch phrase for political corruption.

Among examples often cited as evidence of “high crimes and misdemeanors” are:

  • misappropriation of funds;
  • appointment of unfit subordinates;
  • refusal to expend money as appropriated by the Congress;
  • refusal to prosecute cases;
  • suppressing petitions to government;
  • perjury;
  • abuse of authority intimidation;
  • refusal to obey lawful orders; and
  • unbecoming conduct.

Bribery and treason are also cited in Article II, Section 4 as reasons for impeachment.

Have people been impeached in the past?

First used in 1804, impeachment proceedings have been undertaken against 18 federal office holders: three Presidents (Andrew Johnson, Richard Nixon and Bill Clinton), one cabinet member, one senator, and 13 federal judges. 

Richard Nixon was not formally impeached, because he resigned before the House voted on impeachment charges. It was clear at the time, however, that he would have been impeached and likely convicted in the Senate. Neither Andrew Johnson nor Bill Clinton were convicted in the Senate.

Members of the House of Representatives and the Senate cannot be impeached and removed from office. They can, however, be expelled and that has happened in the past. There have been 20 members expelled (15 in the Senate and 5 in the House).

What are the likely political costs of impeachment?

Because the impeachment process is lengthy and unlike other judicial proceedings, most Americans are confused about what it entails. They tend to think impeachment should happen only when crimes with which they are familiar occur. Also, because the individual in question is sometimes an elected official, people tend to believe that the “will of the majority” should not be overthrown. So, the majority of Americans, when polled, are likely to say impeachment proceedings should not happen for “political reasons.” Because we are currently ideologically polarized, almost everything is condemned by one group or another as “political.”

So, entering into impeachment proceedings can be politically disadvantageous to the party bringing the charges. First, the person charged will have faithful followers who are opposed. Second, skillful manipulation of the media can make any charges seem contrived or less than “high crimes and misdemeanors,” particularly since most Americans know neither the origins nor the meaning of that phrase. Third, the acrimony of impeachment proceedings can turn off both unaffiliated and low-information voters, because the process may seem unfair or politicized.

One can see the ill effects of a perceived unfair impeachment process in the Bill Clinton example. Not only were the charges tied to a personal event and did not effect his conduct in office (although, one could argue, it was “unbecoming conduct”), but they also came after a prolonged and perceived to be overtly political investigation by a Special Prosecutor. So, although successfully impeached in the House of Representatives by the Republican majority, Clinton was not successfully convicted in the Senate (45 votes to impeach and 55 votes against impeachment, even though the Senate had a Republican majority). However, after the trial Clinton’s popularity rose and the fortunes of his Republican accusers fell. (It didn’t help that several of his accusers apparently had their own personal problems with alleged affairs, which came to light after the trial.) 

Republicans currently believe that they can successfully accuse Democrats of overreach and that they will, like Clinton and the Democrats in 1999, benefit from the process. For example, they believe that in congressional districts in which a Republican lost in 2018, they think “overreach” claims will push them back in power in the House and help them retain a majority in the Senate.

However, in 2000 the GOP regained the Presidency, some argue, as a partial result of Clinton fatigue. So, that political cost example might not be as straightforward as it seems. In the Nixon example, the GOP suffered significant political costs in the aftermath of the impeachment investigation as it uncovered multiple examples of misconduct on the parts of Nixon and his appointees.

Bottom line: there may be a cost to Democrats in the short term for bringing impeachment charges; however, if the investigation unveils evidence that substantiates charges and Republicans cast what appear to be political and not evidence-based votes, that advantage may not linger. However, if the Democrats do or appear to behave in a cavalier and unfair way, the costs may be substantial, including contributing to the reelection of the accused.

Watch for Impeachment 102.