November 21, 2017
Impeachment. It is a term that has been raised by political opponents, whether or not warranted, since the ratification of the Constitution, but seemingly with more frequency since the Nixon administration. Impeachment is now being raised in discussions regarding President Trump. But what do we know about the impeachment process and the history of presidential impeachment proceedings in the United States? Two previous sitting presidents, Andrew Johnson and William Jefferson Clinton, were impeached. Neither was convicted and removed from office.
The U.S. Constitution sets up the removal of a sitting president through a two-step impeachment process. Article I, Section 5, states: “The House of Representatives shall chuse [sic] their Speaker and other Officers; and shall have the sole Power of Impeachment.”
Article 1, Section 3 (6) states: “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.”
So, the basic impeachment process itself is fairly simple to understand (especially for those of us still watching Law & Order reruns). The law provides that the House of Representatives, which investigates through its judiciary committee, may charge the president with “treason, bribery, or other high Crimes and Misdemeanors” (Article II, section 4 of the Constitution). If the president is charged, the Senate sits in judgment as the jury during the trial phase of the impeachment process. The Constitution requires a two-thirds vote of the Senators present to convict the president.
But punishment is limited to removal from office. Article I, section 3 (7) states: “Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
Impeachment does not limit criminal prosecution by a state or federal court if a crime has been committed, but the Senate’s authority is limited to removing the president from office. The vice president would then fill the vacancy.
Now that we are all constitutional scholars, let’s look at the only two instances when a president was impeached. Although Articles of Impeachment were drafted against Nixon they were never voted on by the House of Representatives. Nixon resigned before impeachment proceedings could be consummated.
Both Andrew Johnson and Bill Clinton were impeached, meaning that Articles of Impeachment were prepared and approved by a vote of the House of Representatives. Both Johnson and Clinton had Senate trials where neither president was convicted. Johnson was impeached primarily for violation of the Tenure of Office Act (but the Articles against him also included “making three speeches with intent to show disrespect for the Congress among the citizens of the United States”). President Johnson avoided conviction by a single vote. President Clinton was impeached for perjury and obstruction of justice. He was acquitted of the charges and both he and Johnson remained in office after the conclusion of the impeachment process.
Besides “treason” and bribery, what are “high crimes and misdemeanors?” It is a phrase that dates back to English common law and includes a whole host of possible offenses. As noted above, Congress included perjury, obstruction of justice, the violation of a federal statute and “making three speeches with intent to show disrespect for the Congress among the citizens of the United States” into the same pot with treason (a crime defined in the Constitution) and bribery. Suffice it to say, “high crimes and misdemeanors” probably includes any offense the House of Representatives deems should be included. Its meaning has been debated and discussed, but in the end it is part politics and part legality and difficult to say which part is the greater.
Whether the definition of “high crimes and misdemeanors” will be expanded in the near future remains to be seen.
If you have any questions, please contact Joel D. Rosen at 610-275-0700 or jrosen@highswartz.com. Our attorneys in Bucks County and Montgomery County are here to assist you.
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