The Impeachment of a President
Calls for the impeachment of President Trump have been circulated since before he assumed office. Any pretext seems to suffice. If one is shown to be groundless, another is quickly adopted.
With the Democrat party now in control of the House of Representatives, and a lineup of committee chairpersons right out of the Star Wars Bar Scene, reckless talk of impeachment in the halls of Congress and on the cable opinion shows have reached a fevered pitch. While much of the talk is silly and petty, the subject is serious business.
What does the Constitution say about impeachment?
Impeachment was debated on and off through the four months of the constitutional convention in Philadelphia where the framers of our constitution were creating a government of Checks and Balances. Not only did these wise men insist on the Separation Powers to obviate the concentration of power in too few hands, but they also wanted a means for one branch of government to be able to Check the power of another branch.
The impeachment process was a means to Check the power of the Presidency. The drafters wanted a strong president but not a king and authorizing the impeachment of the President, even if limited to the rarest of circumstances, insured we would never have a king.
For historical reasons the framers adopted a specific structure for the use of the impeachment procedure. For impeachment to occur the House of Representatives must vote articles of Impeachment. The members of the House then present the articles to the Senate. The Senators serve as jurors in the Trial of the President presided over by The Chief Justice of the United States. If convicted of any article there is one and only one punishment. The President is removed from office.
The Federalist Papers inform us Alexander Hamilton and James Madison had two main concerns about the impeachment procedures.
First they worried about the political process. Having the matter tried in the Senate they were concerned about the character of a jury made up totally of elected officials. In other words, politicians. If the impeachment of the President devolved to a political exercise it would make the President permanently subservient to the Senate. And the need for a strong executive was one reason the original Articles of Confederation were abandoned in favor of the Constitution.
Their solution was the requirement that articles of impeachment could only originate in the House and fully two thirds of the Senators had to vote for conviction. In the 1990s Bill Clinton had 54 votes cast in the Senate for his impeachment on one count and 50 on another. Were it not for the two thirds requirement he would have been removed from the Presidency. Similarly, Andrew Johnson was acquitted by one vote in 1868.
Second. The Framers also sought to circumscribe the process by proscribing very narrow grounds for impeachment. The grounds are limited to “Treason, Bribery, or Other High Crimes and Misdemeanors.” The phrase “Other High Crimes and Misdemeanors” confuses even some members of Congress. What is clear is that the framers abhorred the idea of impeachment being used as a political tool, a process by which the dominant party in Congress removes Presidents because they have the votes and they perceive it is in their political interests to do so. Establishing a political revolving door of Chief Executives would defeat the very purpose for which the office was created.
The debate concerning the article about impeachment over those hot summer months in 1787 saw the framers consider and reject a number of proposals concerning grounds for impeachment including misfeasance and malfeasance as well as corruption. Each revision served to narrow the definition. And finally they settled on “Other High Crimes and Misdemeanors.”
“High Crimes and Misdemeanors” does not refer to routine crimes. For example, a common Drunk Driving charge is a misdemeanor. That is not the kind of crime the framers were talking about. The term High Crimes and Misdemeanors was taken from old English law. It was used to describe political offenses against the Crown.
High Crimes and Misdemeanors contemplate a crime against the State. The original clause actually said High Crimes and Misdemeanors “against the United States.” The phrase “Against the United States” was dropped for stylistic reasons by a special subcommittee because it was thought to be a redundancy.
The road to impeachment is narrow and straight up hill. It is meant to be difficult and it is.
As was seen in the impeachment of Bill Clinton, petty politics by petty venal politicians (that time by the other party) won’t result in the removal of the President.
In pursuing Bill Clinton and after spending 50 million dollars on a special prosecutor, after interrupting the lives of countless people, shaming and vulgarizing society by discussing a stained blue dress in a trial on the Senate floor presided over by the Chief Justice, not one count resulted in a conviction. It was an ill-advised and unsuccessful attempt to remove a President. And it was an embarrassment for the nation in front of the entire world.
No doubt there are those who wish to see it all happen again. For the nation’s sake let’s hope not. Probing every member of the President’s family, including his minor children, all his past business dealings, and, yes, his sexual peccadillos seem to be an obsession of some members of Congress. Senator Dale Bumpers, during his arguments on the Senate floor defending President Clinton, paraphrased H.L. Mencken. He pointed out that H. L. Mencken said, “When someone says it’s not about the money, it’s about the money.” As related to Clinton’s trial in the Senate, Bumpers, said, “When somebody says, it’s not about the sex, It’s about the sex.” And I, in turn, will paraphrase Dale Bumpers: “When someone says, it’s not about the politics, it’s about the politics.”
There are more pressing matters, at home and abroad, that demand the attention of our nation’s leaders. They need to wake the hell up, quit torturing definitions, and get to it.
For other articles and writings by Phil Cline, visit philcline.com