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Impeachment 101 -What To Expect When You’re Impeaching

Now that the House Democrats have opened up an impeachment inquiry regarding Donald Trump, this is a good time to review both the process and history of impeachment. The impending impeachment of Trump will only be the fourth time that the Congress has wielded this power. We are truly living in an historic moment in American history.

The Founding Fathers put the power of impeachment in the Constitution because they were concerned about the possibility of a powerful president who might abuse his power. Their experience with King George III was a recent memory for them.

The term “high crimes and misdemeanors” wasn’t defined in the Constitution but the drafters of the Constitution were of the belief that a president should be impeached for abuses of power that violate the Constitution, the integrity of government, or the rule of law. James Madison came up with a number of reasons why a president might be removed : “He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers.”

The impeachment of Andrew Johnson, Richard Nixon and Bill Clinton all began in the House Judiciary Committee. In all three instances this committee debated and voted out articles of impeachment. Hearings were held by the House Judiciary Committee in all three previous impeachments prior to the vote.

Once the articles of impeachment were approved in the impeachments of Johnson and Clinton, the action moved to the House floor. (Nixon resigned shortly after the House Judiciary Committee approved three articles of impeachment.) In the cases of Johnson and Clinton, a majority of the House approved the articles of impeachment. This vote has been compared to a grand jury indictment.

In 1868 and 1999, the Senate held impeachment trials. Witnesses were called and oral arguments were made by both House impeachment managers and attorneys for the president. The Chief Justice of the Supreme Court presided over the trials. The odd thing about impeachment is that a majority of Senators write the rules of procedure for the trial. In both 1868 and 1999, the incumbent president was acquitted — the advocates of impeachment failed to obtain the necessary two-third votes under the Constitution to remove the president.

Every impeachment has focused on different issues and motivations. The 1868 impeachment of Andrew Johnson was really about profound policy differences he had with the so-called “Radical Republicans” over the reconstruction of the defeated Confederate states. Johnson was a white supremacist and racist who wanted to restore to power the southern elites who dominated the early Republic. In furtherance of this end, Johnson vetoed a civil rights act, other bills aimed at ending laws that discriminated against the newly freed slaves and measures aimed at maintaining the northern military occupation of the thirteen former Confederate states. Most of these laws were passed over his vetoes.

The Johnson impeachment was fought over the Tenure Of Office Act which prohibited Johnson from firing any cabinet member without Senate approval. (This law was later found to be unconstitutional.) The Republicans launched an impeachment inquiry after Johnson fired Secretary of War William Stanton. Apparently, the “Radical Republicans” didn’t want to present their impeachment inquiry as a dispute over policy differences — they wanted to point to an alleged law violation. As it turned out, Johnson survived impeachment by a mere one vote.

The initial historical conventional wisdom was that the impeachment of Johnson was an act of Congressional over reach that endangered the power of the executive branch. Contemporary historians have sided with the “Radical Republicans” since Johnson was a white supremacist who supported the restoration of the racist former Confederate elite. In contrast, the “Radical Republicans” wanted to establish a democracy in the south in which African-Americans were full participants.

The Nixon impeachment stands out in history because it concerned genuine law violations and abuses of power. What is also unique about the Nixon impeachment proceedings is that support for impeachment was bi-partisan.

In late July 1974, the House Judiciary Committee voted out three articles of impeachment on a bi-partisan basis: obstruction of justice, abuse of power and the third article charged that Nixon had “failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives.”

Nixon resigned shortly thereafter on August 9, 1974, after a unanimous Supreme Court had ordered him to turn over the tape recordings of his Oval Office conversations. The release of his June 23, 1972 conversation directing White House Chief of State H.R. Haldeman to cover up the Watergate break-in caused Nixon’s support in Congress to collapse. Nixon resigned because more than two-thirds of the Senate was prepared to vote to remove him from office.

The next impeachment attempt in 1998–99 was pretty much the opposite of the Nixon impeachment. The attempted impeachment of President Clinton was a blatantly partisan attempt by a radicalized GOP to oust from office a president they loathed and believed was illegitimate.

The genesis of the Clinton impeachment was the politically motivated Paula Jones lawsuit. This frivolous lawsuit was funded by Clinton’s most bitter political enemies and was eventually dismissed by the Federal District Court in Arkansas. It was subsequently revealed that the Starr investigation unethically and secretly cooperated with Jones’ lawyers in an attempt to bring down Clinton.

President Clinton did exercise poor judgment in having an affair and then lying about it in his deposition in the Paula Jones case. The Republicans in Congress used this lapse in judgment to begin impeachment proceedings against Clinton even though the economy was booming and Clinton had sky high approval ratings around 65%.

Once again, the House Judiciary Committee held hearings and voted out articles of impeachment alleging obstruction of justice and perjury. The votes were on a straight party line basis. Subsequently, the Republicans in the House voted on a partisan basis to impeach Clinton and sent the matter over to the Senate for a trial. After the Senate heard from three witnesses who testified by videotape and lengthy oral arguments, the Republicans failed to get the necessary 2/3 vote to remove Clinton. As a matter of fact, the Republicans couldn’t even get a majority vote to remove President Clinton.

The next chapter in impeachment battles will be written in 2019–20. As in 1973–74, the American people are facing a lawless president who has taken the position that he is above the law. Already, Trump is defying subpoenas and refusing to cooperate. (If Donald Trump has nothing to hide, why does he continue to hide information, hide documents, hide evidence from the American people? Innocent people usually don’t withhold exculpatory evidence.)

Whether or not support for impeachment will be bi-partisan or even result in Trump’s removal remains to be seen. I expect more revelations and increasingly erratic behavior from the former TV reality star who occupies the Oval Office. Ultimately, we can’t trust the Republicans in Congress to do the right thing. That means we need to win in 2020. There is no substitute for victory. Democracy and the rule of law will be on the ballot. Let’s leave it all out on the field!

I’m a trial lawyer, a Democratic activist and a sports fan.

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