As calls for Trump's impeachment are raised, the process remains difficult (as it should be)

President Donald Trump speaks during a news conference at the White House on May 18, 2017. (AP Photo/Susan Walsh) President Donald Trump speaks during a news conference at the White House on May 18, 2017. (AP Photo/Susan Walsh)

Upon his election, many opponents of President Trump felt confident it was not a question of whether but when he would be impeached. Now, a mere five months into his presidency, with various controversies swirling around him, a review of the impeachment process and allegations made against other presidents who have and have not been impeached seems increasingly warranted.

The removal of a president from office is, and should be, difficult to accomplish. Currently, there are two constitutional means to remove a U.S. president: impeachment and activation of the procedures set forth in the 25th Amendment.

The Impeachment Process
Impeachment is not a criminal prosecution, but there are similarities between prosecution and impeachment. Impeachment is a constitutionally created process for the removal of the U.S. president, vice president and other “civil officers.” Application of the term “civil officers” is made on a case-by-case basis, but it has been applied to federal judges, cabinet-level appointees, commissioners and agency administrators. It is uncertain whether Jared Kushner who, as senior adviser to the president, was not confirmed by the Senate, is impeachable.

Impeachment is analogous to a grand jury indictment; it is a finding that enough evidence has been uncovered for the case to go to trial. The House of Representatives has sole control over the commencement of impeachment proceedings and any member of the House may bring articles of impeachment, which are similar to allegations in a criminal complaint filed with a prosecutor. Non-members, including grand juries, state legislatures and, when empowered, special prosecutors, also may bring articles of impeachment to the House.

The removal of a president from office is, and should be, difficult to accomplish. Currently, there are two constitutional means to remove a U.S. president: impeachment and activation of the procedures set forth in the 25th Amendment.

Only a simple majority vote is needed for the House to impeach. As with all House business, however, the majority party controls whether and when to call a vote. Thus, articles of impeachment against Mr. Trump are unlikely to progress in the Republican-controlled House unless party support takes a dramatic turn away from the president.

The Senate has the sole power to conduct an impeachment trial and determine whether the official is “guilty” and should be removed from office. The chief justice of the Supreme Court presides over presidential impeachments, but there are no prescribed procedural or evidentiary rules. Even the burden of proof is unspecified, leaving senators to apply the “beyond a reasonable doubt” criminal standard or a less demanding “clear and convincing” civil standard.

A two-thirds majority of the Senate is required for a finding of guilt and removal from office. When an official is found guilty, a second vote may be taken and by a simple majority the Senate may impose a further penalty of lifetime ineligibility for public office. A guilty verdict in an impeachment trial is not a finding of criminal guilt. Similarly, an acquittal does not trigger double jeopardy or prevent a later criminal prosecution.

Impeachable Offenses
The misdeeds for which an official can be impeached are “treason, bribery, or other high crimes and misdemeanors.” The phrase “high crimes and misdemeanors” has no definite meaning but is not limited to conduct proscribed in criminal statutes. According to the Congressional Research Service,

Congress has identified three general types of conduct that constitute grounds for impeachment, although these categories should not be understood as exhaustive: (1) improperly exceeding or abusing the powers of the office; (2) behavior incompatible with the function and purpose of the office; and (3) misusing the office for an improper purpose or for personal gain.

President Andrew Johnson was impeached in 1868 because he fired his secretary of war without congressional approval, which was in contravention of the since-repealed Tenure in Office Act, and President Richard M. Nixon resigned before the full House voted on articles of impeachment that included the charge of making “false or misleading public statements for the purpose of deceiving the people of the United States.”

Several judges and a secretary of war have been impeached for using their offices for monetary gain. Tax fraud, under certain circumstances, has also been included as an impeachable offense but was rejected in the case of Mr. Nixon because it was considered misconduct committed as a private citizen.

Impeachment for misconduct prior to holding office is unusual, but not unprecedented. In 2010, Judge G. Thomas Porteus Jr. was found guilty by the Senate for, among other misdeeds, making false statements on his SF-86 background form (the same form on which Jared Kushner neglected to mention his meetings with Russian diplomats).

Congressional Conflicts, Watergate, Iran-Contra and Weapons of Mass DestructionJohn Tyler was the first president to have articles of impeachment presented against him. Mr. Tyler was a fervent states’ rights advocate who later served in the Confederate House of Representatives. He was at odds with federalists in Congress over banking, tariffs and the restriction of slavery.

He allegedly abused his office by firing political opponents; retaining incompetent and unconfirmed appointees; and “aiding to excite a disorganizing and revolutionary spirit in the country” by encouraging states to disregard federal law. The House voted 127-84 against impeachment.

President Andrew Johnson, who took office after Abraham Lincoln’s assassination and battled Congress over Reconstruction and the retention of Lincoln’s appointees, was impeached by the House but acquitted by the Senate (by one vote).

Mr. Nixon resigned under threat of impeachment for his involvement in the cover-up of the Watergate break-in at Democratic headquarters and his authorization of various “dirty tricks” using government agents to smear political opponents. Prior to his resignation, Mr. Nixon fired the Watergate special prosecutor and the attorney general and deputy attorney general who refused his orders to fire the special prosecutor.

Mr. Nixon also directed personnel at the Central Intelligence Agency to convince F.B.I. officials to stop inquiries into the break-in and disregarded congressional subpoenas for tape recordings of Oval Office conversations. The tapes eventually were disclosed upon order of the U.S. Supreme Court; they exposed Mr. Nixon’s attempt to influence the F.B.I investigation.

Prior to his resignation, Mr. Nixon fired the Watergate special prosecutor and the attorney general and deputy attorney general who refused his orders to fire the special prosecutor.

President Clinton was impeached by the House for false statements he made denying his sexual relations with a White House intern and for obstruction of justice by encouraging others to give false testimony. Mr. Clinton was acquitted by the Senate. No Senate Democrat voted to remove Mr. Clinton from office even though some acknowledged he did obstruct justice. As Senator Max Baucus explained:

I do not think the President’s actions constitute a high crime or misdemeanor…. I will cast my vote not for the current President, but for the Presidency. I believe that in order to convict, we must conclude from the evidence presented to us with no room for doubt that our Constitution will be injured and our democracy suffer should the President remain in office one moment more.

President Reagan survived the Iran-Contra debacle, a blatantly illegal scheme that defied an arms embargo, congressional prohibition against funding Nicaraguan militants and long-standing U.S. policy against paying for the release of hostages. Regarding the hostage deal, Mr. Reagan stated: "A few months ago I told the American people I did not trade arms for hostages. My heart and my best intentions still tell me that's true, but the facts and the evidence tell me it is not.” Articles of impeachment against Mr. Reagan were introduced in the House but not acted upon.

President George W. Bush may have deceived Congress, our allies and the American people when he invaded Iraq based on erroneous information that Saddam Hussein controlled weapons of mass destruction. Articles of impeachment were introduced against Mr. Bush in 2006 and 2008, for his authorization of warrantless electronic surveillance of U.S. citizens in the United States, the capture and rendition of “alien combatants” and the opening of Guantánamo Bay as a detention camp. Only a few representatives supported the impeachment efforts and no action was taken.

Although it has become more common for articles of impeachment to be introduced in the House, the sentiments of Senator Baucus, that the removal of a president should be reserved exclusively for conduct that poses an existential threat to our democracy, explains why, in over 228 years and myriad scandals, only two presidents have been impeached and none have been removed.

The 25th Amendment
The 25th Amendment was passed to clarify the transfer of power procedures if the president dies in office or otherwise becomes incapable of fulfilling his or her term. It also provides a mechanism for the temporary and voluntary transfer of power to the vice president when, for example, a president is anesthetized during surgery. Additionally, the amendment permits the transfer of power whenever the vice president and a majority of the cabinet submit a written declaration to Congress that the “President is unable to discharge the powers and duties of his office.”

Whether the vice president and cabinet or another legislatively authorized body determine a president is unfit, the president may resume power upon informing Congress that he or she is able to continue in office. If that determination is disputed (by the vice president and cabinet or other body), both the Senate and House must decide by a two-thirds vote that the president is incompetent. Otherwise, the president resumes office.

Although the 25th Amendment could be used to remove a physically fit but otherwise “unable” executive, such a scenario is improbable. Impeachment, which requires only a majority vote from the House (and two-thirds from the Senate) is easier to obtain.

Legacy
The nature of President Trump’s campaign, election and early administration indicate the country is in unchartered waters, but we have weathered many storms and been governed by deeply flawed individuals. Only time will tell whether Donald J. Trump will be removed from office prematurely, complete one term or win re-election in 2020.

The Constitution establishes a system of checks and balances that make it very difficult but not impossible to remove the chief executive. Removal from office, which Benjamin Franklin noted wryly is better than assassination, is possible only when Congress is extraordinarily opposed to an incumbent who commits outrageous acts. Regardless of who is president or what party is in power, the future of the nation rests in the hands of patriotic citizens who must themselves run for office or elect politicians who put the good of the country above the good of their party or of themselves.

J Cosgrove
2 weeks 4 days ago

Has the author or anyone else identified a reason for impeachment of Trump? So why this article? Isn't it just the crazies that are suggesting impeachment.

Why not an article on Obama and his surveillance of Americans and the legal implications of trying an ex president.

I understand that Trump is intensely disliked by a substantial part of the population but that is no basis for impeachment. Nor is innuendo!

So far no one has found anything wrong against Trump and it is certainly not for lack of trying. But there seems to be evidence against the Obama administration.

The authors choice is revealing.

James MacGregor
2 weeks 4 days ago

RE: "So far no one has found anything wrong against Trump and it is certainly not for lack of trying. But there seems to be evidence against the Obama administration. "
Yes! Why not similarly raise impeachment for sedition for public officials who lie or speak against our country? I believe that the Obama guy would have been a prime candidate for that.

Mike Daniels
2 weeks 4 days ago

Our horrible news media gives us 24/7 of negative Trump news. We don't need it from America Magazine. We need enrichment and inspiration ... not this silly nonsense.

John Walton
2 weeks 4 days ago

Trump tired of the Jesuits after 2 years at Fordham, they can't let it go.

Dr. Stella Maris, MD
2 weeks 3 days ago

There are so many pressing issues in our nation that it is disheartening to see none of them are being taken seriously by Americans. It seems the nation is in a state of civil war (of words) by a few vocal minority groups.

Meanwhile we see violent crimes continue to rise in major US cities, Americans are committing suicide more than ever, turning to drugs to self-medicate, and getting physically sicker more and more each decade.

Yet, some want to discuss impeachment as if they even interact with their neighbors to see how they are doing.

Our nation is very sick and it is getting sicker by the looks of the temperature in political caucuses. Shame on them. They are self-serving and care not a wit about the people

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