The possibility of President Trump’s impeachment leaves me struggling to recall how that happens. So I went online, read and thought a lot. If you’re interested in the same reading, pull up USLEGAL.com; what you’ll find is a straight forward invitation to contemplate.
Though the 1787 convention in Philadelphia set out to repair the Articles of Confederation, attendees wound up replacing it with the Constitution, that document declaring that impeachment meant suspected bribery, treason, and high crimes and misdemeanors (i.e., anything else evidencing the accused’s failure to fulfill the constitutional responsibilities of office). The Constitution also noted that only presidents, vice presidents and federal judges can be impeached and went on to say how impeachments should be investigated, prosecuted and that impeached persons should be turned out of office.
How is an impeachment organized? First, a systematic investigation is made of the official suspected of failure to handle his office’s constitutional responsibilities. In Presidents Nixon’s and Clinton’s investigations, the House asked a special prosecutor to prepare a Bill of Impeachment that, when approved by the House, was presented to the Senate for trial. However the investigation is currently conducted by the House’s Judiciary Committee, that committee also are appointing managers who, should the bill pass, will present the case before the Senate.
Interestingly, while only a simple majority is needed to approve the Bill of Impeachment in the House, the accused is guilty only if two-thirds of the Senate vote this way. So why the dramatic difference in the majorities required?
The House acts like a grand jury in a local jurisdiction in deciding whether there is enough evidence to warrant the person-in-question facing another jury charged with making a final definitive decision. Further, and because the Constitution’s framers declared that impeachments are primarily political activities, the decision should be made by elected persons who best represent their constituents’ political expectations.
This is, on its face, easier for representatives than senators because (1) except for House members from states with only one representative, representatives have smaller constituencies covering smaller areas than senators, and (2) since people living in proximity to one another likely share similarly conservative/liberal views of how elected officials fulfill their constitutional responsibilities, House members are best prepared to understand the elected officials actions in terms of their constituents’ views.
One final point: Since the House’s goal is to identify people who are likely to have failed their constitutional responsibilities, the worst mistake that can be made is failing to identify those who might be guilty -- a problem increasing the higher the number of votes needed for indictment. Thus a modest criterion (50 percent, say) is advised. In contrast, once the action shifts to the Senate where the trial seeks to confirm that the impeached person is in fact guilty based on both evidence already collected and newly presented information (senators can call witnesses and ask any questions they’d like), the fear is failing to convict a truly guilty person.
What are the practical implications of the preceding paragraph? Failing to convict a truly guilty person is an error while convicting him is a correct finding. Raising this point, in turn, leads to asking what can be done to minimize errors and maximize correct findings. The framers of the Constitution answered this question by employing a higher criterion (two-thirds guilty) in Senate votes than in the House.
And so it happens that a president, vice president or federal judge receiving guilty votes from 67 senators is removed from office. What happens then? He's out of office immediately with no appeal possible as there are no laws covering such things. Not according to the Constitution.
Hank Slotnick is a retired UND professor who, with his wife, winters in Pima, Ariz., and summers in Debs.