An Impeachment Primer

In case anyone needs a refresher.

The place to start, as most people know, but that the broader conservation often seems to forget: “impeachment” does not mean removal from office. Rather, impeach is the process by which a formal declaration recommending removal from office is made by the House of Representatives. It is analogous to a grand jury issuing an indictment.

Article I, Section 2 states: “The House of Representatives…shall have the sole Power of Impeachment.”

Being Impeached leads to a trial in the Senate which decides whether or not removal is to take place. Removal requires a 2/3rds vote of the Senate, and if the President is being tried, the Chief Justice* presides over the trail (otherwise it is one of the few constitutionally defined duties of the VP).

Article 1, Section 3:

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.


In addition to removal, the Senate can also issue a ban against further service to the federal government (although it does not have to do so**):

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.

It should be noted, as the quotation from the constitution above states, that the Senate cannot issues a criminal penalty, that is left to the criminal justice system once the officer-holder has been removed.

In teaching this process I have often referred to it as administrative in nature: it is how the federal government fires presidents and judges, for example. It is not a legal process insofar it has nothing to do with applying the laws to the actions of the office-holder in question. While the House may well impeach for “Treason, Bribery, or other high Crimes and Misdemeanors” it does not establish legal guilt in any of these matter. Indeed, the House (and the House alone) determines what constitutes “Treason, Bribery, or other high Crimes and Misdemeanors.”

Impeachment is rare. Only two Presidents, Andrew Johnson and Bill Clinton, have been impeached. Johnson came just a vote shy of removal, while Clinton was never any real jeopardy of removal. Richard Nixon would have been impeached, and likely would have been removed, had he not resigned before formal impeachment proceedings could be fully initiated.

There have been 19 impeachments total in the history of the US. Eight have resulted in removals, seven in acquittals, three in resignations, and one in dismissal of charges. Fourteen were judges (the most recent was in 2010), two were presidents, one was a cabinet secretary, and one a Senator.***

I think it is important to note that impeachment was designed as a way to limit the President from acting in a monarchical fashion. Also, the Framers thought that separation of powers would make the Congress eager to check the President. One thing that they did not count on, as I keep stressing, is the degree to which political party affiliation would bridge the institutions. This means that politicians are typically far more loyal to their party than they are to their institution. That is: congressional Republicans are far more interesting in protecting their leader in the White House than they are in protecting the Congress from Presidential malfeasance.


*Fun fact: the only reason we know that the constitution requires a Chief Justice is this passage.

**For example: Alcee Hastings was removed from his federal judgeship in 1989 and later ran for, and won, a seat in the House of Representatives (where he still serves).

***The first impeachment was of US Senator William Blount. The charges were dismissed on the grounds that the Senate expelled him before the trail.

FILED UNDER: Politics 101, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is Professor of Political Science and Dean of the College of Arts and Sciences at Troy University. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Andre Kenji de Sousa says:

    I think that part of the problem is that institutions only go far enough to protect voters against their own stupid decisions.

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  2. charon says:

    Richard Nixon would have been impeached, and likely would have been removed, had he not resigned before formal impeachment proceedings could be fully initiated.

    Impeachment precludes pardons:

    In the United States, the pardon power for offences against the United States is granted to the President of the United States under Article II, Section 2 of the United States Constitution which states that the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

    Nixon timed his resignation fortuitously.

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  3. Joe says:

    I read this quote, charon, as preventing the president only from reversing his own impeachment. I don’t know that it prevents a president who is the subject of impeachment proceedings, but not yet removed, from continuing to grant pardons for criminal actions, perhaps even to himself (though I would argue against that authority).

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  4. The president cannot pardon an impeachment–which makes sense in a lot of ways, not the least of which is that the pardon power is for federal crimes and impeachment is not a judicial process.

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  5. JKB says:

    An interesting predicament should impeachment be attempted. Chief Justice Roberts in implicated in the corrupt use of the FISA court as he appoints the FISA judges without challenge or confirmation.

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  6. @JKB: You really do consume a lot of right wing propaganda.

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  7. DrDaveT says:

    @Steven L. Taylor:

    You really do consume a lot of right wing propaganda.

    “You are what you eat” works for politics, too.

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  8. @JKB: Wait, what? That’s how FISA judicial appointments work. The judges are all sitting US District Court judges who have been confirmed to their trial court seats. FISA – a federal statute that went through the bicameral presentment process for enactment – places the appointment power in the Chief Justice. The 11 existing FISA judges were appointed by 44, 43, and 42. Their FISA court appointment is just a sort of “additional duty” to their normal judicial duties in their regular assigned courts in DC, NY, FL, VA, IL, OR, etc.

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  9. Important to note your explication of how impeachment would work IF it were pursued by the House is not the same as saying it SHOULD happen. While I think the President has committed impeachable offenses, which could be proven by a preponderance of the evidence (the standard of proof has never been defined but it’s pretty clearly preponderance based on past practice), but that the House should show restraint. 1. It’s serious business to undo an election and we should push back hard on its use as a partisan tool, as occurred with 42 in the 106th Congress. 2. The chances of removal are ZERO and mere impeachment would be viewed in the way the Clinton impeachment came to be remembered — Clinton was practically martyred and his approval rating ultimately benefitted from GOP overreach; and 3. Many people would view impeachment as trickery and chicanery, legal maneuvering to defeat the “popular will.” No, sir, this presidency MUST end at the ballot box in 2020. No one can reasonably argue that outcome.

    One technique no one is talking much about yet is censure. The House can do it alone after extensive hearings, but the case never gets forwarded to the Senate. It occurs on simple majority vote. In fact, if BOTH houses were to censure, it would be a powerful rebuke to the President but wouldn’t flirt with constitutional crisis. Censure is little more than a “sense of the House/Senate” resolution that can pretty much just say “we think you suck.”

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  10. charon says:

    @Butch Bracknell:

    Each of your points is absolutely false.

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  11. charon says:
  12. An Interedted Party says:

    As impeachment is a political matter, it makes sense that the Democratic leadership in the House is thinking of whether or not to pursue impeachment in political terms…do we know for sure that it wouldn’t hurt the Democrats chances of winning the White House and Congress next year? If it resulted in Trump winning reelection, it would be the worst thing the Dems could do…

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  13. An Interested Party says:

    I wonder why that comment was put in the moderation queue…

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  14. James Joyner says:

    @An Interested Party: You mistyped your pseudonym. Our commenting filters are set to require approval for all first-time commenters, which is defined internally by a name/email combination.

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  15. James Joyner says:

    @charon:

    Each of your points is absolutely false.

    That’s a weird assertion to make considering most of @Butch Bracknell‘s points are judgments that can’t be falsified.

    1. It’s serious business to undo an election and we should push back hard on its use as a partisan tool, as occurred with 42 in the 106th Congress.

    This is actually two points, the first of which I agree with and the second I sort of agree with. I was a Republican partisan 20 years ago and thought Bill Clinton should have been impeached and removed. I’m no longer a Republican or a partisan and still think that. BUT, the Republican treatment of Trump indicates rather clearly that they were acting as partisans now. See especially Graham, Lindsey.

    2. The chances of removal are ZERO and mere impeachment would be viewed in the way the Clinton impeachment came to be remembered — Clinton was practically martyred and his approval rating ultimately benefitted from GOP overreach;

    This is two points and I agree with both. There is simply no way Senate Republicans will vote to remove Trump. And, yes, the perception of Republican overreach turned Clinton from an adulterous lying scumbag into a martyr.

    3. Many people would view impeachment as trickery and chicanery, legal maneuvering to defeat the “popular will.” No, sir, this presidency MUST end at the ballot box in 2020. No one can reasonably argue that outcome.

    This is three points.

    It’s simply indisputable that many would perceive a Trump impeachment as illegitimate. Hell, there are still people who think Richard Nixon was treated unjustly.

    I’m torn on whether this fact means that impeachment should be abandoned. I tend to agree with Butch (and Nancy Pelosi) that Trump has committed multiple impeachable offenses and that the near-term impact of impeaching and not removing would be disastrous. But I also think there’s something to be said for signaling that Trump’s actions are simply unacceptable.

    Alas, I think Butch is wrong that no one could or would dispute the outcome if Trump were to lose his re-election bid. Indeed, I fear that Trump himself would do everything in his power to delegitimate that outcome.

    @charon: The Hoarse Whisperer thread makes an interesting counter-argument to the “impeachment helped Bill Clinton” narrative but I think it’s sleight-of-hand. Here’s how Gallup’s Frank Newport assessed it contemporaneously:

    The facts are straightforward: Bill Clinton received the highest job approval ratings of his administration during the Lewinsky/impeachment controversy. As the Lewinsky situation unfolded, Clinton’s job approval went up, not down, and his ratings remained high for the duration of the impeachment proceedings:

    • Bill Clinton’s mean job approval rating, 1st quarter 1993 through 1st quarter, 1999 was 53.8
    • Bill Clinton’s mean job approval rating for the five years preceding 1998 was 51.3
    • Bill Clinton’s mean job approval rating in 1998 was 63.8
    • Bill Clinton’s average job approval rating for 1998 was thus 10 points above his overall administration to-date average
    • Bill Clinton’s average job approval rating for 1998 was thus 12.5 points above his administration average for the five years preceding 1998
    • Bill Clinton’s average job approval rating for 1998 was 5.7 points above that of the previous year, 1997, which in turn was higher than that of any of the four years which preceded it
    • Bill Clinton’s job approval rating in the first quarter during which the Lewinsky situation became public knowledge (1st quarter 1998) jumped 5.6 points compared to the immediately preceding quarter

    Thus, the onset of the publicity surrounding the Lewinsky revelations was correlated with a significant jump in Clinton’s job approval rating, and the two quarters during which the House and Senate debated impeachment and conviction — 4th quarter 1998 and 1st quarter 1999 — saw the public give Bill Clinton the highest job approval ratings of any of the 25 quarters of the Clinton administration to date. In what some might see as a paradoxical twist, Clinton’s job approval ratings have fallen after the impeachment process ended with his acquittal, and are — in Gallup’s most recent May poll — at 53%, the lowest since August of 1996.

    Here’s how Wikipedia describes it as of this morning:

    Clinton’s job approval rating ranged from 36% in mid-1993 to 64% in late 1993 and early 1994.[1] In his second term, his rating consistently ranged from the high-50s to the high-60s.[1][2] After his impeachment proceedings in 1998 and 1999, Clinton’s rating reached its highest point at 73% approval.[3] He finished with a Gallup poll approval rating of 65%,[4] higher than that of every other departing president measured since Harry Truman.[5]

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  16. @Butch Bracknell: JKB has some paranoid views about a number of institutions. He is not especially amenable to factual explanations, unfortunately.

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  17. @Butch Bracknell: This post was not a suggestion of whether impeachment should be pursued or not–it was intended to be just the basics of the process.

    As I noted in a previous post, I am skeptical of pursuing impeachment.

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  18. charon says:

    @James Joyner:

    That’s a weird assertion to make considering most of @Butch Bracknell‘s points are judgments that can’t be falsified.

    I guess I was just triggered by his affect then, as he sure came across as someone rattling off a recitation of facts.

    The Hoarse Whisperer thread makes an interesting counter-argument to the “impeachment helped Bill Clinton” narrative but I think it’s sleight-of-hand. Here’s how Gallup’s Frank Newport assessed it contemporaneously:

    Correlation is not causation. Frank Newport makes his case, but in the absence of a “control” there is insufficient evidence to really know.

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  19. James Joyner says:

    @charon: There’s obviously no way to run a “no impeachment” counterfactual. But we have enormous anecdotal evidence, including the aforementioned polling data. Here’s a TIME summary:

    Ultimately, there was uncertainty as to whether or not Clinton’s wrongdoing had been serious enough to justify removing him from office — as well as insufficient public support for doing so.

    Bill Clinton’s approval ratings remained high throughout his second term of office, including during the trial. The impeachment seemed to galvanize the country to support him. His peak job-approval rating — 73% — was recorded the very week of the impeachment, according to Gallup. When Clinton and independent counsel Kenneth Starr were named Person of the Year in 1998, TIME columnist Michael Kinsley wrote that the lack of public interest in Clinton’s alleged misconduct was striking:

    “The most significant political story of the year is that most citizens don’t seem to think it’s significant that the President had oral sex with a 22-year-old intern. Yes, yes, and he lied about it. Under oath. Blah blah blah. They still don’t care. Rarely has such an unexpected popular consensus been so clear. And rarely has such a clear consensus been so unexpected.”

    While many Senators thought that Clinton’s behavior was wrong, many did not agree that it was worthy of a conviction.

    “In voting to acquit the President, I do so with grave misgivings for I do not mean in any way to exonerate this man,” Senator Susan Collins of Maine said in announcing her decision.

    Now, Hoarse Whisperer is correct that people came away thinking Clinton was something of a dirtbag.

    Although Clinton was never convicted, he arguably did not get away unscathed from the proceedings.

    Clinton’s law licenses with the U.S. Supreme Court and the Arkansas bar were suspended, which prohibited him from practicing law after his time in office. After he was suspended from the Supreme Court Bar in 2001, he chose to resign his license rather than be permanently disbarred. Possibly the biggest consequence of Clinton’s impeachment, however, was the mark it left on his public record.

    On Jan. 17, 2001, Gary Langer ABC News characterized how most Americans felt about Bill Clinton at the time: “You can’t trust him, he’s got weak morals and ethics — and he’s done a heck of a good job,” Langer wrote.

    But, as with Trump, most people already thought that.

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  20. Teve says:

    Interesting perspective:

    David Rothkopf
    @djrothkopf

    a day ago, 25 tweets, 4 min read Read on Twitter

    In today’s America, the president and those who work for him are above the law. The president can’t be indicted for crimes he commits. A majority in the Congress believe holding him accountable for his crimes is too politically divisive for justice to be done.
    Trump has already be cited for violating campaign finance laws with no effect. Mueller has showed conclusively he has obstructed justice and no consequences are likely. The Treasury Sec and head of the IRS have broken the law–likely with the WH advice–without consequences.
    The Commerce Sec has lied to the Congress and nothing is done. The president’s son and other chief advisors have done so as well, and nothing is done. Subpoenas are ignored without consequence. Rules are broken–from the Constitution’s emoluments clause to the guidelines…
    that protect our national security information–and it does not seem to matter. Those who seek to guide the White House to follow the law–like senior employees at the Department of Homeland Security–are fired for upholding their oaths.
    Not only does the president lie serially to his employers, us, but those who are on the government payroll to provide transparency in the government–like the WH press secretary–lie as well with complete impunity.
    The attorney general, supposedly the nation’s top law enforcement official, acts instead as the president’s private attorney, lying and twisting the law to suit his personal ends. His predecessor, the acting attorney general, did likewise, also misleading Congress repeatedly.
    Illegal laws are promulgated. Funds are allocated contrary to the wishes of the Congress–and thus in violation of Constitutionally mandated processes and roles. Treaties are attacked and their abrogation is threatened. A foreign enemy attacked us during the last presidential…
    election and helped elected an unfit and illegitimate candidate and while there is no doubt this is precisely what the founders meant when they spoke of high crimes, it seems the treasonous will not only go unpunished but they will be rewarded with more power…
    …including perversely, the power to obstruct justice without consequence and thus make it impossible for prosecutors to prove crimes of conspiracy were committed. (As Mueller implied was happening in the report thanks to Trump team lies, destroyed evidence, etc.)
    The president is a serial sex abuser. So what? The president paid off his mistresses to help win an election. So what? The president gave the Russians classified information, met in secret with Russian leaders, changed US policies to aid his Russian sponsors. So what?
    The president has committed tax fraud for years. So what? His sister, a federal judge, had to step down to quash an investigation into her implication in those crimes. So what? Money laundering? So what? Rampant corruption? So what?
    This is where we are America. We have found a loophole in our Constitution that lets presidents and their families and their cabinet secretaries and their cronies in business or in Congress trample our laws, disregard ethical guidelines, make a mockery of our system.
    All it takes is a majority in the Senate and a corrupt Senate Majority leader. For two years it was helped by partisan and corrupt GOP leadership in the House. They are immoral and disgusting, but don’t fault them alone. They are after all, living the American Dream.
    They are playing hardball. They are getting everything they can get away with. They are hard-boiled realists who are assessing the weaknesses of the system and of their opponents and perhaps rightly concluding, “It’s open season for criminal government in the US, boys and girls.”
    And they have great allies. They have Americans who do not read or understand. They have party loyalists who do not care. And they have opponents who are afraid to act, to step up, to challenge their power. They have opponents who fear defeat…
    …more than they are committed to doing what is right. They have opponents who value caution above their constitutional obligations, the sanctity of our system, the long term consequences of their enabling behavior.
    Those consequences should not be downplayed. If Trump goes this far, how far will his heirs in criminality, venality, lack of morality go? How bad can it get?

    We must wonder now if we have passed a tipping point. Is this system too far gone to be saved?
    Or will a courageous few step up to use the courts to successfully challenge these miscreants? Will members of the Democratic leadership start to actively and aggressively seek enforcement of subpoenas and punishment for those who violate the law?
    Most importantly, will enough of the leadership come around to realize that impeachment hearings are vital to the health and future of the country, they are critical to the preservation of our rule of law, they are what the founders require…
    …in the wake of the stomach turning wrong-doing revealed by Mueller and that is compounded daily before our eyes. They must start to realize that regardless of what might or might not happen in the Senate, successful impeachment hearings will at the very least reveal the truth.
    Successful impeachment hearings will make the case to the American public that crimes have been committed. Perhaps that case, well made, can turn the Senate however unlikely that may seem. But if it does not, but it is solid and true, it will reveal the Senate for what it is.
    And then, it may serve two more purposes. It will send the message to the American electorate that Trump’s criminal enterprise and those like McConnell who support must be brought down. And it will send a message to the leaders of tomorrow.
    That message is that we are a nation of laws founded on the principle that no man or woman among is, can or should be above the law…and that there will always be those who, regardless of the odds, will respect and honor that principle and dare to do what is right.
    Right now, our system is dying before our eyes. Failure to act will lead to further, perhaps irreversible decay. This is not a situation that offers the luxury of further musing, of waiting until tomorrow. American democracy has entered the intensive care ward.
    It is up to us to act now to save it or to reconcile ourselves to begin the process of mourning for what was lost, of mourning for a tragic end to the great American experiment in giving power to the people and denying it to those who would exploit us like tyrants past.

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  21. charon says:

    Apologies to Steven Taylor for continuing off topic, but the thread is otherwise pretty dead so what the heck.

    Yes, people already knew about Gennifer Flowers and Betsy-puts-down-bimbo-eruptions etc.

    But as far back as Lenin and Goebbels and probably earlier, the principle of selling ideas by repetition has been known.

    There lots of factors that affect approval, I still do not believe rehashing the horndog stuff was beneficial to Clinton.

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  22. Teve says:

    Donald J. Trump
    @realDonaldTrump
    ·
    28m
    Only high crimes and misdemeanors can lead to impeachment. There were no crimes by me (No Collusion, No Obstruction), so you can’t impeach. It was the Democrats that committed the crimes, not your Republican President! Tables are finally turning on the Witch Hunt!

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