Is Impeachment “Overturning” an Election?
When the facts make for a poor defense, attack the process.
There can be no doubt that the main defense being mounted by the Trump White House in regards to the ongoing impeachment inquiry is not to mount a defense based on evidence. Instead, the defense is based almost entirely on attacking the process.
A key line of attack (when more extreme rhetoric about coups isn’t being used) is that the impeachment inquiry is “unconstitutional” or that it is an attempt to “overturn” the 2016 election.
For example, at his rally in Louisiana this week, Trump stated the following:
“They know they can’t win on Election Day so they’re pursuing an illegal, invalid and unconstitutional, bulls— impeachment,” the president thundered at his second political rally in as many days.
Indeed, this week, the White House Counsel, Pat Cipollone, sent a letter to the House outlining why the White House would not be cooperating and detailing a novel theory of how the House ought to be behaving. The letter asserts that the current process violates the constitution on the subject of impeachment and makes some claims about due process that bears no relationship to how congressional inquiries actually function.
The letter is a direct manifestation of the administration’s tactics in regards to the ongoing inquiry. They are going to pretend like the House’s processes somehow violate constitutional requirements for impeachment, and hence make the case that this specific attempt at an impeachment investigation is “unconstitutional.” This, they argue, means that they don’t have to cooperate.
This is utter nonsense.
The letter claims:
As you know, you have designed and implemented your inquiry in a manner that violates fundamental fairness and constitutionally mandated due process.
Except, of course, there is no “constitutionally mandated” anything about the procedures the House should use in an impeachment inquiry (nor for an actual impeachment vote).
The letter continues:
For example, you have denied the President the right to cross-examine witnesses, to call witnesses, to receive transcripts of testimony, to have access to evidence, to have counsel present, and many other basic rights guaranteed to all Americans. You have conducted your proceedings in secret. You have violated civil liberties and the separation of powers by threatening Executive Branch officials, claiming that you will seek to punish those who exercise fundamental constitutional rights and prerogatives. All of this violates the Constitution, the rule of law, and every past precedent. Never before in our history has the House of
Representatives-under the control of either political party-taken the American people down the dangerous path you seem determined to pursue.
Emphasis in the the original.
This paragraph asserts processes that exist, yes, in a courtroom, but not in the House when it pursues impeachment. The House indicts, it does not try, that’s the Senate’s job. The claim about every past precedent is a gross mistake at best and a knowing lie at worst.
Note, again: this letter is from the White House Counsel.
The letter goes on to claim:
Put simply, you seek to overturn the results of the 2016 election and deprive the American people of the President they have freely chosen.
I cannot emphasize enough that impeachment is a constitutional process. It is not “overturn[ing]” an election. It is formally charging a government official with wrongdoing in office and sets the stage for a constitutional process to then remove that person from office (or, in plainer terms that perhaps Trump would better understand, it is a way to fire him from his job).
If Trump is impeached and removed, the 2016 election still would have happened. And the voters will still have their say in 2020. But if Trump is impeached only, it becomes a matter of the historic record and voters will be free to assess it as they see fit. If he is removed, it will mean that he did his job so poorly, and abused his office sufficiently, that a super-majority of the Senate saw fit to fire him from his job.
Overturning an election is language to be reserved for authoritarian regimes that use extralegal powers to nullify results they don’t like (indeed, it is a type of coup).
Impeaching and removing an president is “overturning an election” only in the same way that a president losing re-election “overturns” the previous election or when a president is term-limited out of office. These are all constitutional ways in which a president can leave office.
For those who want to know what the US Constitution says about the impeachment process, here it is.
Article I, Section 2, paragraph 5 states:
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
Article I, Section 3, paragraphs 6 and 7:
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.
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.
Article II, section 4:
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
It should be noted that Article II, section 2 states that impeachment cannot be pardoned by the president.
Also quite relevant, but not about impeachment, Article 1, Section 5, paragraph 2:
Each House may determine the Rules of its Proceeding
That last bit means that the House can proceed in this process however it chooses. The President, nor the White House Counsel, can dictate the how the impeachment inquiry will proceed.
The bottom line is this: the House can pursue this process however it likes and the only procedural requirement is that if it is going to impeach, it will need to have a floor vote.
Interestingly, when the House impeached Andrew Johnson, it first voted to impeach and then drew up articles of impeachment. Law prof Frank O. Bowman, III notes:
On February 24, the full House voted to impeach Johnson with the proviso that it would draft articles of impeachment formalizing the charges in short order.
The task of drafting the articles was delegated to a special committee, which returned five days later, on February 29, with proposed articles.
Bowman’s entire piece is worth reading, as it reinforces and elaborates on a lot of what I have noted above.
Impeachment is saying, “We made a mistake electing a person unsuitable for this office.” It is not negating, (judicial appointments are not null and void, neither are most other actions of an administration) nor is it overturning an election, but it is still at heart a political decision to “reverse” or “shorten”a previous political decision. I’m not sure what the right word is to describe what happens in an impeachment, but it is a political process to end the results of a previous political process.
We have another data point for the hypothesis that if a headline ends with a question mark the answer is always no.
It may be there’s a purpose beyond rhetoric here. If the election is “overturned,” then wouldn’t Trump and Pence be removed and replaced with Clinton and Kaine?
That’s a bit too nuanced for this band of fools in the White House, but nothing scares even reasonable Republicans like the prospect of a Clinton presidency.
If it were overturning the election we wouldn’t be faced with the prospect of President Pence.
But this is how Scott Walker, or really his Koch Bros handlers, beat his recall election in Wisconsin. They made out that a recall, provided for by the state constitution, was some unfair subversive plot to overturn the will of the people.
It’s a disruption of democracy, damaging to our country, and should be reserved for only the most severe offenses — like where we are now, or Watergate. (Clinton… not so much. Lying in a civil suit unrelated to his office is something that can be pursued later)
If we end up in a spot where both the President and the Vice President would be impeached and removed, I would strongly support a caretaker president of their party being installed, to prevent the “overturning an election” problem. A Gerald Ford but without the charisma.
As the WH letter fails to note, a President freely chosen by 3 million fewer American people than chose his opponent.
Gerald Ford had charisma?
@Gustopher:
No. That is not how presidential succession works.
So, in the case you specified, then it’s
SpeakerPresident Pelosi.Because that is what the rules state. And the rules were written long before this administration.
How about if Pence publicly rolls over on Trump we let him be POTUS for a few months in the understanding that he doesn’t run. Pelosi knows how bad it’d look if she ended up in that situation .
The problem of impeachments is a problem common to Presidential systems, where the Parliament is less responsive to voters(In the US, the House almost always changes control in response to the President, not the Party that controls the House). In the end, you can have a Parliament that’s more powerful than the President. It destroys the balance of power between Executive and Congress.
Trump deserves to be impeached(Maybe even executed for treason), that does not change the fact that impeachments CAN be used to overturn elections and are extremely horrible and complicated processes.
@Gustopher:
The consensus that I’m seeing is that the post of vice-president should be eliminated, if there is a vacancy then call a snap election. In most Presidential Republics there is no vice-president. Specially because no one vote based on the vice president.
Spiro Agnew was removed first, replaced by Ford, and then Nixon was impeached/resigned. So a Republican kept the office. We might see President Mitch McConnell or President Kevin McCarthy. (Ford was House Minority Leader before becoming VP.) I’d be fine with that. Let them run, too. They will pardon, and people will be hopping mad about it. Because, you see, if Trump is removed from office, it will be because we’ve convinced 65-70% of the country that he’s a filthy crook, and caught in a web by Putin and the other oil guys.
I think I’ve said this before, but even making this argument (in the OP) is so damaging to the country that it could be another article of impeachment.
@Andre Kenji de Sousa:
The available evidence says they can’t be used thusly in the US.
@Jay L Gischer:
Yes—but under completely unrelated circumstances. Agnew wasn’t impeached for Watergate-related crimes. Rather, he resigned in conjunction with having been indicted for and pleading guilty to bribery charges stemming from his time as governor of Maryland. In this instance, there’s reason to believe Pence is culpable in the Ukraine mess.
@James Joyner: “Trump corrupts everything he touches, but that is only because everyone and everything in those circles is so eager to be corrupted.”
via LGM.
By the “overturning an election” logic, no elected official could ever be impeached.
@sam: I’m pretty sure Judge Rao believes the impeachment of judges would be the unconstitutional overturning of a lifetime appointment.
Unless evidence is uncovered that Pence was a central conspirator to Tiny’s Ukraine follies or some other attempt to solicit foreign assistance in the 2020 election, he’ll be allowed to assume the presidency and complete the term. Many will be outraged by this as he has been shown to be complicit, but as a practical matter the system and the people will be exhausted and ready to move on.
A mad scramble will ensue in the Rethug party for the nomination as it tries to put Tiny behind them.
@liberal capatalist: On a practical matter, I don’t see a situation where the President and Vice President are impeached simultaneously. So, there’s a window where a new VP could be confirmed.
And, in that hypothetical case, a lot of Republican Senators would be unwilling to vote to convict knowing it creates President Pelosi.
Finally, even if they did, it would create a hardened and insane division in the country at a time when the country needs to heal. Impeachment used to flip the party in the White House would create chaos.
The line of succession exists to handle cases of multiple heart attacks and the like — cases where there is no time to react politically.
@Sleeping Dog: You want to know what would kill Trump? If President Pence appointed Romney to be v.p….and then stepped down from the presidency..
@James Joyner: Yes, Agnew’s removal, on it’s face, wasn’t related to impeachment. That doesn’t mean it didn’t happen or that it can’t be a model for some sleazy deal if Pence’s name keeps coming up in events that lead to articles of impeachment. They are not going to want Madam President Pelosi.
@Andre Kenji de Sousa:
On this, I agree.
Indeed, I am to the point that I would radically prefer a parliamentary system wherein situations like this could be handled by a vote of no confidence or a reorganization of the governing party’s leadership. In a less institutionally-f’ed up world, the GOP would have had every incentive to replace Trump by now.
Of course, in the parliamentary system, Trump never would have been selected leader of the party, and therefore would never have been in charge of the government.
@Andre Kenji de Sousa:
As noted above, HRC isn’t going to be installed as president if Trump is removed.
@James Joyner: Really, all I’m saying is that there’s a procedural way to keep a Republican president.
I think Democrats should take every opportunity to publicly say “If this were a coup, we’d be trying to replace Trump with someone ethical and competent, not another Republican.”
@CSK:
Imagine the tweet storm
@OzarkHillbilly:
They can. Bill Clinton personal approval never recovered from the impeachment process in 1998, and that affected his wife campaign almost twenty years later. But that’s not that relevant because if someone deserves impeachment that person is Trump, but that does not mean that impeachments *could* be used for political gain.
@Steven L. Taylor:
Or then you could have a sequence of short-lived Prime Ministers, take a look at Italy. Silvio Berlusconi(That was basically created by Mani Polite) is a sad example of Trump before Trump, and he was elected in a Parliamentary System with very Proportional Elections.
@Steven L. Taylor:
That does not change the fact that in theory an impeachment COULD be used to either remove both President and Vice-President(One of the problems of impeachment is that a vice president is usually involved with the dealings of the president) or could be used for political gain.
But, as I pointed out that ‘s not relevant because Trump probably deserves to be executed for treason, if not impeached.
@Andre Kenji de Sousa:
Almost every criticism of parliamentarism starts with “look at Italy”–but I would counter by saying: look at all the other cases. Italy is an outlier and has been for decades. It is not a good argument against parliamentarism.
(And having said that, I am still not sure I wouldn’t prefer Italy’s system).
@Andre Kenji de Sousa:
Actually, if memory serves, Italy’s problem (historically) was not that the system was especially proportional. If you want to go that route, Israel is usually the case people use to argue about too much fragmentation in votes, but it has the highly unusual case of one national electoral district.
@Andre Kenji de Sousa:
Just because something is done for “political” motives (isn’t all of this about political motives?) does not make it a coup nor the overturning of an election.
@Steven L. Taylor:
Italy is more complicated, but my point is that Parliamentary systems have their own set of issues, and that having successive votes of confidence can also be chaotic. Institutions matter, but proportional representation, party lists or Parliamentary systems are not silver bullets.
OK, read “Partisan” where I wrote “political”, I should have been more clear. Specially because I’m seeing that another impeachment that was done for partisan/ideological purposes was not a “coup”….
@Andre Kenji de Sousa:
Of course they do. But I prefer the maladies of parliamentarism to those of presidentialism.
Indeed, the Rouseff impeachment underscore the problem of having an executive that lacks majority support in the legislature.
@Steven L. Taylor:
Considering the horrible Brazilian Congress having a Congress governing without an elected President looks like horrible to me. But, Presidential systems are not Parliamentary systems, and impeachments are much more complicated than no confidence votes.
The fact is they may carry out this BS impeachment, but it will never go through in the Senate. And trump can still run for president. And in the end the house has gained nothing. But looses control of the house and Senate.
This is a control power grab from the demacrats and their wanting to control, the America people by thinking we need government control.
We do not. higher taxes gun control and Takeing American peoples rights away
Is not the answer. These are the reasons our four fathers left the old country.
Over taxation control if the people through I’ll will.threatning jail if you didn’t pay the government. Or succumb to their bulling! GOD will prevail in the end!!!!
@OzarkHillbilly:
Impeachment is saying, “The person we elected committed some betrayal of our trust, so he can’t let him remain in office any longer since we can’t trust his questionable judgment.”
DT works for us (“We, the People”), where accepting that $400k/yr paycheck is symbolic, a reminder to him that WE pay him to work on OUR behalf, NOT vice-versa.
So “We, the people” are his boss, and we caught him red-handed attempting to create a smear campaign against one of the guys who’s interviewing for his job, even trying to leverage our money as a bribe (he even confessed that he did it, on the lawn of the White House).
But now that the term of his employment contract is coming to an end (1 yr away), a performance review is in order at that time. But bring that we caught him engaged in wrong-doing, can we wait or should we fire him now?
Impeachment is us firing him now, and for good cause.
@@@@@
The real question is, why should we rehire an employee who engaged in such unethical illegal tricks? In fact, why shouldn’t he be sent packing yesterday without severance pay?
It’s no wonder DT doesn’t understand what it means to work as an employee, and to have to follow rules: he’s never had to live up to anyone else’s standards for job performance before now.
@Kathy:
Maybe not, but the specter of a Madam Pelosi would be pretty damned close, likely triggering a M.I. in Mitch (& also Bern….)
@Scott F.:
Yup.
“We, the People” democratically voted for HC; however, the electors of the Electoral College felt they knew best, so failed in their duty (namely, to spot & prevent a would-be tyrant from using the “low arts of popularity” to enter the White House), and chose DT.
@Jack:
Who were the Four Fathers again?
George Washington, Thomas Jefferson, Ben Franklin, and I’m drawing a blank on the 4th: who am I forgetting (is it Abe Lincoln)?
TIA!