[politics] Impeachment: An Explainer

A bunch of my non-US friends – and for that matter, some of my US friends – have asked me about my thoughts on the current Presidential impeachment investigation, and in doing so they’ve revealed some misunderstandings about the process that I wanted to try and clear up.

First, impeachment is the act of casting aspersions on someone’s character or fitness; Dictionary.com has a wonderful set of definitions. In the US, the Constitution enables the House of Representatives – one-half of our legislative body – to file Articles of Impeachment against nearly any elected or appointed Federal official in the Executive or Judicial branches. Notably, Congress cannot impeach one of its own; they have separate procedures for casting out a fellow Representative (the Senate has parallel procedures for unseating one of their own).

To continue the process, the House must pass, by a majority vote, Articles of Impeachment, which is essentially a list of accusations against the Federal official in question. The process by which the House comes to those Articles is not defined in the Constitution; rather, the Constitution simply states that the House gets to make up its own rules and procedures. There is no legal requirement for the House to vote on commencing impeachment hearings, and there is frankly no requirement that the majority party of the House even include minority members in the discussions. That might not be morally correct, in some folks’ view, but it’s the law, and permanently changing it would require an Amendment to the Constitution that provided for a procedure.

Once files, Articles of Impeachment are sent to the other half of Congress, our Senate. Again, the Senate may determine its own way of handling the matter, with the only requirement being that it does handle the matter. Presently, standard Senate rules require all 100 Senators to show up six days a week and keep their mouths shut while the case is presented to them. The Senate acts something like a jury, in this respect; there is no debate between Senators at this stage. The House delegates someone to be its advocate, essentially taking on the role of prosecutor, while the impeached official defends themselves.

“Typically,” and I put that in quotes because we’ve literally only done this a couple of times, the Senate sits down ahead of time and drafts a set of “rules of engagement” for the hearing. They did so for Clinton, for example. Those rules can be whatever everyone wants them to be, and they don’t even need to permit the impeached official to testify on their own behalf. There’s no law that says the Senate can’t simply take the Articles of Impeachment and have an immediate vote; only party politics come into play to create the need for an actual hearing. That is, the party of the accused official will nearly always want a chance to clear his or her name, particularly if that party holds a minority of the Senate seats.

In the US, we tend to use courtroom terms to describe an impeachment, because they provide a basic analogy most people understand. We use terms like jury, trial, prosecutor, defense, and so on. The analogy is imperfect, though, because an impeachment hearing is not a legal proceeding. It is a political one.

The US Constitution provides a number of protections for those accused of criminal or even civil wrongdoing: you have a right to face your accuser, for example, and you have a right not to testify against yourself. You have a right to due process. Those rights exist because, in a criminal or civil proceeding, one possible outcome is for the accused to lose property, their liberty, or even their life. In an impeachment hearing, however, no such outcomes are possible. An impeached official is simply removed from office: they face no financial penalties, no jail time, and no risk to their lives. So the rights afforded to accused criminals do not come into play unless the Senate agrees to adopt them as a part of the process.

(As an aside, being removed from office for a criminal offense does not remove the possibility of then being prosecuted for that offense; Nixon was famously given a pardon by his successor, Ford, for precisely that reason. However, pardons are not without downsides, as they are an implicit admission of guilt; accepting one can render you ineligible for future offices, for example.)

Once the Senate agrees that the hearings have gone on long enough (something they have to define in advance, or just “wing it” until they feel they have enough votes to go their way), they call a halt to things and have a vote. Two-thirds of the Senate (67 Senators) must vote for removal; anything less is an acquittal. If a removal passes, then the accused is immediately removed from office, and whatever line-of-succession rules applicable to that office will come into effect. For the Presidency, the Vice-President would instantly become the President, and would likely be sworn in within hours, and the search for a new Vice-President could begin.

We’ve actually done all this a bunch in the US; Wikipedia has a good article listing them all. Notably, we’ve not done it for the Presidency all that much: Johnson and Clinton are the only presidents to date who have gone through the entire process, and neither was removed, Johnson by the skin of his teeth (one vote) and Clinton more or less along party lines. But we’ve done it lots more for Federal judges. We’ve even impeached Supreme Court Justices. Notably, Richard Nixon was not impeached; he resigned before the House could file Articles with the Senate, and so skirted the process. Buchanan was also not technically impeached, as the House declined to file Articles. US Senator William Blount was the first to have the honor of being impeach by the House, but the Senate – in a bid to maintain their independence – refused to accept the Articles, and instead tossed Blount out using their own procedures.

Impeachment and subsequent removal is a political process, as I’ve written, and it comes with political consequences. What we’re seeing now with President Trump is, in some regards, an effort to make those consequences useful to one side or another.

Okay… on to some analysis, in as non-partisan way as I can muster. You’re free to skip this bit if you just wanted the legal process laid out. Thanks for reading this far, and have a great day.

It seems likely that the House will stir itself to vote on Articles, and as a Democratic-controlled body, it will likely be able to pass those Articles of Impeachment to send on to the Senate. This is not a sure thing: in our last elections, Democrats picked up a number of seats that have traditionally been Republican. For those Representatives, there will likely be fear that a vote to impeach will put their seat in jeopardy in their next election, because their opponents will campaign against them on that vote.

At first blush, it would seem that the Republican-controlled Senate will not have the votes to remove Trump. The Senate sits at 45 Democrats, 2 Independents, and 53 Republicans; presuming a party-line vote, there’s no way to get to 67. Assuming every Democrat and both Independents voted for removal (far from a sure thing, for the same political reasons that the House will face), that’s still 20 votes short. While there are numerous Republican Senators who publicly dislike Trump, and might well vote to remove him, there ain’t 20. Moreover, bunches of Senators live in places where Trump is hugely popular, and voting to remove him could well be a career-ending move.

But there’s a flip side to the political situation that House Democrats in tight districts face: a Republican Senator in a tight state – like Nevada, where I live – might well face a re-election campaign that focuses heavily on their vote to not remove Trump. Dean Heller, Nevada’s one Republican Senator, is already on thin ice, and Nevada leans a bit more anti-Trump than pro-Trump (we’re a “purple state” on political maps, mixing the red Republican color with the blue Democratic). If he doesn’t vote to remove, that’ll assuredly be the subject of every political television ad, postcard, poster, t-shirt, and whatever else I get subjected to next year. For many Congresspeople, the political ramifications on their own careers will weigh far more heavily than what they may or may not think of the President’s actions.

One tactic that pro-removal politicians will absolutely use is Congress’ own pride in itself. The Senate, for example, prides itself as the greatest deliberative body in the world (that was a phrase used to get the 0-100 vote approving the hearing process used in with Clinton). Politicians are already making the argument that the administration’s lack of cooperation in the hearings threatens the status of Congress as a co-equal branch of government, and for some hard-liners that may sway them. But… political consequences tend to be really top-of-mind for most politicians.

So: Impeachment is a political process, not a legal one, for all its parallels to a legal trial. Impeachment comes with zero ground rules, save for those the House and Senate make for themselves. Impeachment has no criminal or civil outcome, only (at most) removal from office. In an impeachment, the accused has none of the special legal protections afforded to accused criminals, unless the House and/or Senate decide to build those rights into their processes.

And now for some half-snarky cynicism. This is a good place to stop reading.

One reason any party tends to strongly defend “their guy” (we’ve never impeached a woman) in these situations is that they fear losing control. That is, if a President is impeached, then that party will (the feeling goes) almost certainly lose the White House in the next election, which is obviously bad (in their view). I would suggest to the Republicans that Trump was never “your guy,” although Pence demonstrably is, and if Trump was removed, Pence would take over and be the presumptive nominee in 2020. In fact, given that some states have cancelled their primaries – hi, Nevada, we’ll discuss “democracy” sometime – Pence would almost have to be the Republican nominee.

And the unassailable Democratic superpower is losing elections. The Democrats are not currently fielding a batch of candidates that offers someone broadly acceptable to the entire country. Remember: Electoral College math is still a thing. Trump won without the popular vote, and it is entirely likely that situation will happen again (it has always favored Republicans when it does happen). We absolutely live in a world where Trump could be impeached, removed, and sent to Florida to retire or whatever, and a Republican could still win the next Presidential election. Impeachment is absolutely not a sure-thing win for the Democrats in terms of the election, as they’ve historically been really terrible at capturing the large number of Electoral College votes from the middle of the country, as well as the Southeast.

Anywho. If you made it this far, thanks for your patience :).

7 thoughts on “[politics] Impeachment: An Explainer

  1. Lloyd

    Great clarity on the impeachment process. Didn’t know much about it but now does after reading your article. Out of curiosity and hypothetically, if the impeachment is successful and and as you alluded to in the article about Pence succeeding, do you think he would win the election against the democratic candidate? I ask this because you mentioned the Democrats are not fielding a candidate that could win over the entire country and also electoral college votes especially mid US and the southeast. However, and this is biased, I think a Democratic candidate would win Pence (still hypothetically) in the next election given that Pence might not also win over the entire country. Might be different in the case of the electoral college votes, which could make Pence win.

    1. Don Jones

      Lloyd, calling elections is SO hard. You not only have to think, “who would vote for Pence or [other person],” but also “who would vote AGAINST them?” Trump may have won, in part, because a lot of people voted AGAINST Clinton, and it’s really hard to predict that activity. If the Democrats run someone that a big chunk of the country perceives to be dishonest, or ready to bring about disruptive change, or something like that… then they’ll stand a strong chance of losing.

      1. Lloyd

        But it’s all decided by the electoral college votes right? I mean the ultimate winner of the presidency.

  2. Brian

    Regarding some states canceling the GOP primaries, it makes sense politically. It makes a pretty powerful statement about POTUS for either party to say “we currently hold the White House, which gives us a huge advantage in the next election, but we still want to look at other options”. If my own party is telling me the current POTUS possibly isn’t the right candidate, maybe I should also consider the candidates of the other parties. I think I saw a stat posted somewhere that no sitting president has ever had a serious primary challenge and been re-elected.

    1. Don Jones

      That’s correct – no first-term president has failed to receive their party’s nomination. But most state parties still like to “confirm” that as a kind of positive affirmation. Nevada has certainly always done so, which makes this year a bit of an exception, and so you start to think, “they’ve no confidence and they just want to bar the door to challengers.” While not strictly “undemocratic,” the Constitution being silent on primaries and letting states decide how to do things, it certainly takes the choice out of the hands of the voters. It reads, for a lot of us here, as “we don’t trust you to do what the party wants,” which makes you wonder what the party actually represents.

  3. sumdog

    It was some podcast (can’t remember which one) where they talked about how if the President just sat on his lawn every day drinking beer and didn’t do anything, that’s grounds of impeachment. Like you covered in so much detail, it’s not a legal thing. It’s fitness for duty, or really a way to fire an official that’s seen as unfit.

    I did not realize Supreme Court justices could be impeached. I’ve thought that recently the Supreme Court system was stupid unbalanced because if they deem something unconstitutional, reversing that decision would require an amendment (which, let’s face it, would be impossible today and probably for the rest of this nationals life). The Supreme Court may also rule on the law and not constitutional, which can be reversed if new laws are passed. Still, the grounds for impeaching a Supreme Court Justice seem incredibly high, with the only one being Samuel Chase. It’s rare enough that I feel like it’s just as unlikely as a constitutional amendment at this point (probably more so).

    It’s interesting how there are so many senate proceedings that are treated like legal proceedings by the public, but are really nothing of the sort. A great example were the Kavanaugh hearings, which I watched (without commentary) and did a full post on: https://battlepenguin.com/politics/outrage-and-distractions-the-case-of-kavanaugh-and-ford/

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