Impeachment in the Age of Trump: A Project of the United States Justice Foundation

March 5, 2019 @

Democrats have reclaimed the majority in the House of Representatives for the first time since 2011. Armed with the authority to investigate President Donald Trump and his administration, certain Democratic members of Congress, along with their mouthpieces in the media, are no longer hiding their true ambition: to impeach the President. To better understand the process of impeachment, and Democrats’ chances of succeeding in their endeavor, the United States Justice Foundation presents a brief explanation of the process of impeachment and the impeachment charges that have recently been re-introduced in Congress this past January.

Impeachment, Explained

Impeachment is the process by which the lower house of a legislature brings charges against a civil officer of government for crimes alleged to have been committed. Most impeachments have concerned alleged crimes committed while in office, though there have been a few cases in which officials have been impeached and subsequently convicted for crimes committed prior to taking office. The impeached official remains in office until a trial is held. That trial, and their removal from office if convicted, is separate from the act of impeachment itself. Analogous to a trial before a judge and jury, these proceedings are (where the legislature is bicameral) conducted by upper house of the legislature, which at the federal level is the Senate.

At the federal level, Article I, Section 2, Clause 5 of the Constitution grants to the House of Representatives “the sole power of impeachment”, and Article I, Section 3, Clause 6 grants to the Senate “the sole Power to try all Impeachments”. In considering articles of impeachment, the House is obligated to base any charges on the constitutional standards specified in 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”

The number of federal officials impeached by the House of Representatives includes two presidents: Andrew Johnson and Bill Clinton; both were later acquitted by the Senate. Additionally, an impeachment process against Richard Nixon was commenced, but not completed, as he resigned from office before the full House voted on the articles of impeachment. To date, no president has been removed from office by impeachment and conviction.

Impeachment proceedings may be commenced by a member of the House of Representatives on his or her own initiative, either by presenting a list of the charges under oath or by asking for referral to the appropriate committee.

The type of impeachment resolution determines the committee to which it is referred. A resolution impeaching a particular individual is typically referred to the House Committee on the Judiciary. A resolution to authorize an investigation regarding impeachable conduct is referred to the House Committee on Rules, and then to the Judiciary Committee. The House Committee on the Judiciary, by majority vote, will determine whether grounds for impeachment exist. If the Committee finds grounds for impeachment, it will set forth specific allegations of misconduct in one or more articles of impeachment. The Impeachment Resolution, or Articles of Impeachment, are then reported to the full House with the committee’s recommendations.

The House debates the resolution and may at the conclusion consider the resolution as a whole or vote on each article of impeachment individually. A simple majority of those present and voting is required for each article for the resolution as a whole to pass. If the House votes to impeach, managers (typically referred to as “House managers”, with a “lead House manager”) are selected to present the case to the Senate.

If a majority in the House votes affirmatively for the articles of impeachment, the House will adopt a resolution in order to notify the Senate of its action. After receiving the notice, the Senate will adopt an order notifying the House that it is ready to receive the managers. The House managers then appear before the bar of the Senate and exhibit the articles of impeachment. After the reading of the charges, the managers return and make a verbal report to the House.

The proceedings in the Senate then unfold in the form of a trial, with each side having the right to call witnesses and perform cross-examinations. The House members, who are given the collective title of managers during the course of the trial, present the prosecution case, and the impeached official has the right to mount a defense with his or her own attorneys as well.

After hearing the charges, the Senate usually deliberates in private. The Constitution requires a two-thirds super-majority to convict a person being impeached. The Senate enters judgment on its decision, whether that be to convict or acquit, and a copy of the judgment is filed with the Secretary of State. The trial is not an actual criminal proceeding and more closely resembles a civil service termination appeal in terms of the contemplated deprivation. Therefore, the removed official may still be liable to criminal prosecution under a subsequent criminal proceeding.

 

Current Impeachment Resolution Against Donald Trump

On January 3, 2019 (the first day of the 116thCongress) House Resolution 13 was introduced by Representative Brad Sherman, (D-CA), with co-sponsor Rep. Al Green (D-TX). This resolution sets forth an article of impeachment stating that President Trump prevented, obstructed, and impeded the administration of justice during a federal investigation. This is actually Rep. Sherman’s re-introduction of the article of impeachment – he had originally submitted the article of impeachment in 2017, when the GOP was in control of the House. According to Rep. Sherman, he believes President Trump’s “conversations with, and subsequent firing of, FBI Director James Comey constitute Obstruction of Justice.” Sherman believes that President Trump’s actions relating to Comey, after the latter refused to stop investigating former Trump national security advisor Michael Flynn, constitute the “high crimes and misdemeanors of Article II, Section 4 (referenced earlier in this document).

House Resolution 13 alleges that President Trump is in violation of his oath of office because, in the course of his constitutional duty to take care that the laws be faithfully executed, he has prevented, obstructed and impeded the administration of justice during a Federal investigation. Sherman’s resolution states that, despite knowing that “federal law enforcement authorities were investigating possible criminal law violations of his former National Security Advisor, General Michael Flynn and knowing that federal law enforcement authorities were conducting one or more investigations into Russian state interference in the 2016 campaign for President of the United States, and that such investigation(s) included the conduct of his campaign personnel and associates acting on behalf of the campaign, to include the possible collusion by those individuals with the Russian government, President Trump sought to use his authority to hinder and cause the termination of such investigation(s) including through threatening, and then terminating, James Comey, who was until such termination the Director of the Federal Bureau of Investigation.”

HR 13 goes on to provide specific allegations upon which the article of impeachment, alleging high crimes and misdemeanors, is based. First, President Trump requested that the Director of the FBI curtail the investigation of the activities of Gen. Michael Flynn under circumstances wherein it appeared that Director Comey might be terminated if he failed to adhere to such request. Second, President Trump made a determination to terminate the Director Comey, and only thereafter requesting that the Deputy Attorney General provide him with a memorandum detailing inadequacies in the Director’s performance of his duties. Third, despite offering differing rationales for the termination of Director Comey, President Trump admitted subsequently that the main reason for the termination was that Comey would not close or alter the investigation of matters related to the involvement of Russia in the 2016 campaign for President of the United States. Finally, the resolution alleges that President Trump stated that, once he had terminated Director Comey, the pressure of said investigation had been significantly reduced.

These allegation, according to Rep. Sherman, are all sufficient (and ostensibly accurate and true) to show that President Trump has acted in a manner “contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States.”

The United States Justice Foundation aims to rebut these spurious allegations against President Trump, and would like to enlist the support of all common-sense Americans in defeating the dangerous efforts of the extremist wing of the Democratic Party.

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