Civics 101: Impeachment

Most people mistakenly equate “impeach” with “kicked out of office.”  With the increased level of use and interest in this word in light of yesterday’s Mueller hearings, here’s a review of what it really means.

“The President, Vice President and all civil officers of the United States, shall be removed from office on the impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”

US Constitution Article II Section IV

Impeachable offenses

1. Treason

“Treason against the United States Shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.  No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”

US Constitution Article III Section 3 Clause 1

While “levying war” is more concrete, “aid and comfort” has some room for interpretation.

2. Bribery

Corrupt solicitation, acceptance, or transfer of value in exchange for official action

3. Other high crimes and misdemeanors

This is akin to an “elastic clause” of impeachment.  While the Founders were committed to being as clear and deliberate in their wording as possible, they also wanted the Constitution to be a “living document.” 

Phrases such as this one are an example of how the Founders built in some flexibility of interpretation to ensure that the Constitution didn’t offer “loopholes” by which a government official could have done something terrible, but if it wasn’t treason, bribery, or any other specifically listed offense, they could not be held accountable through impeachment.

President Bill Clinton was impeached for obstruction of justice and perjury (lying under oath).  Although neither charge is specifically listed among the impeachable offenses, it was successfully argued that they qualify under the “high crimes and misdemeanors” standard.

Role of the House of Representatives

Photo credit: Associated Press

The House of Representatives investigates whether or not impeachable charges are justified.  This is similar to a grand jury deciding if someone should be formally charged with a crime.  If articles of impeachment are drafted, it requires a majority vote of the 435-member body in favor of impeachment for the process to continue.  If at least 218 members vote in favor, the government official has been impeached.

As you can see, to be “impeached” means to be formally charged with committing treason, bribery, or other high crime or misdemeanor.

Role of the Senate

“The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.”

US Constitution Article I Section 3 Clause 6:

The trial of the impeached official takes place in the Senate.  Each Senator acts as a member of a jury.  If the President has been impeached, the Chief Justice of the Supreme Court presides over the trial.  If any other official faces impeachment, the Vice President (as President of the Senate) presides over the trial.

If two-thirds of the 100-member Senate (67 votes) find the official guilty, the official is forbidden from holding a future elected or appointed office at the national level.  The official may be removed from office as punishment as well.  The Senate determines the punishment.  If the official is removed from office as punishment, it is also possible for the person to face charges in a criminal court. 

Applied to the Mueller investigation

Robert Mueller served as “Special Counsel” leading the investigation into interference in the 2016 Presidential election.  In government terms, “special” means temporary and with a narrow mission.  Since the investigation has ended and the report has been submitted to the acting US Attorney General William Barr, the “special investigation” by Mueller’s team has ended. 

Other investigations are still active in other federal jurisdictions, as well as the one led by Barr into the Steele dossier.  Because of these ongoing investigations, Mueller could not comment on information related to those investigations during his hearings with members of the House of Representatives.

While Mueller’s team charged 34 individuals and 3 companies and elicited 7 guilty pleas, a sitting President cannot be criminally indicted.  Once leaving office, criminal charges may be filed.  If a sitting President is suspected of wrongdoing, investigating its severity is the role of the impeachment process so only the House of Representatives has the power to take action against the President if they see fit.

“Obstruction of justice” is a charge mentioned regarding President Donald Trump’s actions leading up to, and during, the Mueller investigation. 

Is pursuing impeachment obligatory or optional?

In the face of evidence, it is ultimately up to the House of Representatives to determine if information from the Mueller report warrants impeachment.  As the gatekeeper of what the House does, or does not take action on, Speaker of the House Nancy Pelosi essentially has the final say on whether or not to proceed.

At the time this article was written, 94 House members support an impeachment inquiry.  Factors beyond burden of proof play a role in this determination – political implications are shaping the extent to which members of the House support impeachment proceedings.  In addition to calculating evidence from the Mueller investigation, Representatives are also taking the temperature of citizens to determine the extent to which Americans support pursuing impeachment.  The hearings today were in large part designed to expose Americans to the information in the Mueller report in a form that may garner more attention than reading the 448-page report for themselves.

Ultimately what happens next will depend on the conclusions Americans draw from the information gathered, and the extent to which they pressure their Representatives to pursue (or not pursue) impeachment. 

“Let us never forget that government is ourselves and not an alien power over us. The ultimate rulers of our democracy are not a President and senators and congressmen and government officials, but the voters of this country.”  

– President Franklin D. Roosevelt

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