Letter: They always come in threes…
For the third time in my life, I’ll be a spectator to the impeachment of the President of the United States of America.
I have thoughts on three subjects: the process of impeachment, the history of impeachment, and the politics of impeachment.
I. The Process of Impeachment
The process of impeachment is, on paper, relatively simple. The Founding Fathers created this process to provide a congressional check on executive power. Having lived under the tyranny of King George, they wanted to prevent a president from becoming a tyrant.
Therefore, our Constitution, the law of the land, lists as impeachable offenses, “treason, bribery, or other high crimes and misdemeanors.” They did not specifically define what they meant.
The lack of specific definitions is both good and bad. The good is that, as the Founding Fathers wanted, it left to future generations of informed, intelligent, and reasonable Americans to define what these words mean given our current culture, today’s morals, and our common sense. The bad is that the Founding Fathers assumed that future Americans would be informed, intelligent, and imbued with common sense.
The process calls for various House committees to gather information regarding the president. Practically speaking, six House committees have already started: Judiciary, Oversight, Intelligence, Way and Means, Foreign Affairs, and Financial Services. Some of those investigations are tied up in court because the White House, at the president’s direction, refuses to comply with congressional subpoenas. However, as Nixon discovered, a fight with Congress during an impeachment inquiry is a losing gambit (he refused to turnover White House recordings that included discussions of the Watergate break-in).
The congressional committees then turnover the discovered information to the Judiciary Committee. That committee would determine the wording of the Articles of Impeachment, if any, and whether to put the matter to a vote before the entire House of Representatives. Only a simple majority of voting representatives is necessary to move the process to the Senate.
A public trial is held in the Senate and the Chief Justice of the Supreme Court presides over that trial. Sixty-seven senators would have to vote to remove the president from office. This assumes, of course, that Mitch McConnell allows a trial to go forward.
II. The History of Impeachment
Andrew Johnson was our first president to suffer impeachment. He became president when Lincoln died. Ultimately, he was not removed from office.
The House presented eleven articles of impeachment. Most had to do with Johnson’s firing of Secretary of War Stanton and Johnson replacing him with someone else without congressional approval. The likelihood of that being an issue today, regardless of the frequent comings and goings of Trump cabinet members, is slim to none. That’s just a guess on my part.
However, there were two articles of impeachment that may have some relevance today. It was said that Johnson violated his oath of office by being unmindful of the high duties of his office and its dignities and his need to maintain harmonies and courtesies between the executive and legislative branches. The articles specified what he actually said and then accused him, generally, on several occasions of declaring “with a loud voice, certain intemperate, inflammatory and scandalous harangues, and therein utter loud threats and bitter menaces, as well against Congress as the laws of the United States duly enacted thereby, amid cries, jeers and laughter of the multitudes then assembled in hearing”.
Johnson was also accused of blaming Congress and certain named politicians for a race riot in New Orleans. He said that the Radical Congress was responsible for encouraging armed blacks to rebel to disenfranchise white men in Louisiana.
Then there was Richard Nixon. The House committee investigating Nixon’s involvement in the break in at democratic offices in the Watergate Hotel and the cover up of that event recommended to the House that three articles of impeachment be voted on by the full House of Representatives. Those articles were for abuse of power, contempt of Congress (refusing to turn over subpoenaed tapes), and obstruction of justice. Nixon resigned before the full House vote.
Bill Clinton suffered two Articles of Impeachment, perjury and obstruction of justice. He was accused of lying under oath regarding his testimony in a sexual harassment lawsuit filed by Paula Jones. He was also accused of attempting to obstruct justice by making false statements, attempting to get others to do the same, and giving gifts to influence testimony. Clinton was not convicted in the Senate.
All of this information is publicly available in the records of the United States Senate, the Smithsonian Institution, the National Parks Service and numerous news outlets.
III. The Politics of Impeachment
Impeachment was designed to be political. We have a constitution that provides for three co-equal branches of government with a system of checks and balances. Impeachment of the president by the Congress is merely one of those checks and balances.
It was created by men who possessed extremely divergent opinions with the intellectual ability to articulate verbal water tortures. Political elections were incredibly scurrilous. Jefferson, in 1813, looked back and said that the public political discussions in the 1790s were conducted with animosity, bitterness and indecency. Friendships were severed. The friendship between Jefferson and Washington died three years before Washington’s death. Jefferson did not attend his funeral. Adams did not attend his former friend Jefferson’s inauguration. And Aaron Burr killed Alexander Hamilton in an illegal duel following years of public, verbal brawls.
But these men knew that at times that cooler heads could and would prevail. They knew that because they and a host of others created the United States of America. They had a certain trust that trumped political rivalries and ideology.
What will our House of Representatives do relative to the Trump impeachment? I don’t know. But the past can be instructive.
Previous impeachments have accused presidents of making scandalous comments about members of Congress and Congress itself in an effort to discredit the authority of Congress and its members. Presidents have been accused of lying. Presidents have been accused of obstructing justice by hindering congressional investigations of the president.
Does this sound familiar?
Each of these accusations was deemed a violation of the presidential oath of office. But no president has been involuntarily removed from office by the Senate.
The new impeachment process might also focus on treason and bribery given the allegations that Trump withheld $400 million of congressionally approved money for the Ukraine, asked the Ukrainian president for a favor, suggested that he work with Attorney General Barr and counsel Rudolph Giuliani to provide information on Joe and Hunter Biden that Trump could use against Joe Biden in 2020, and then, after the foreign leader agreed to do so, released the money plus an additional $140 million. The Ukraine called the extra $140 million “a pleasant surprise.”
None of the previously accused presidents had Twitter accounts. None were videotaped speaking before large crowds. (Clinton, however, did testify while being videotaped.) The House relied heavily on the Kevin Starr report of his investigation of Clinton. The current House could similarly rely on the Robert Mueller report of his investigation of Trump.
There is no constitutional timeline for the impeachment process. In the House, it will take as long as Nancy Pelosi wants it to take. Assuming impeachment, then Mitch McConnell takes over.
But one thing is clear.
The impeachment will play out during the 2020 presidential election. The evidence that comes out of the impeachment proceedings is not likely to change the minds of those who want to dump or support Trump. Those minds are already made up.
The political question is whether there will be enough voters who either learn enough about the current president to vote against him next year or become tired of all of his machinations and vote for anybody but Trump.
— Charles Wieland,
Retired Superior Court judge,