The primer YOU need for presidential impeachment

Courtesy of Mark Dixon via Flickr

Hello, you have been directed here because you have thoughts about impeaching a U.S. President. Whether your thoughts are for or against the notion of impeachment (be honest, right now you’re probably for), I don’t think you really know what impeachment is, and I don’t think you really know the ramifications of the actions which you are advocating. But we can be congenial, so let’s just start small and go through the steps and definitions for a federal impeachment, and then we can go from there.

First, impeachment simply means that someone is being “tried” for some form of offense. Step two of this trial is “removal,” where the person on trial is “convicted.” 

Impeachment itself is actually really easy, requiring a simple majority of the House of Representatives. But removal—the action that most people imagine when they talk of impeachment at the office watercooler—requires a two-thirds majority of the Senate, a much higher bar.

If you are a ranger for the Department of National Resources in Nimrod, MN and now feel threatened, don’t worry, only a specific subset of federal officials, called civil officers, can be impeached. President and Vice President are the two biggest ones, but falling under the umbrella is basically any government official that was approved in some way by Congress. Attorney General William Barr, check, can be impeached. Supreme Court Justice Ruth Bader Ginsburg, check, can be impeached. Known Hatch-Act-violator Kellyanne Conway, nope, can’t be impeached. Former Special Counsel Bobert Mueller III, nope, can’t be impeached. What’s the difference? The latter two officials can be fired and hired at leisure without having to get Congress involved, while the first two require congressional approval for a replacement.

The actual text of the U.S. Constitution is pretty plain about the types of things that merit impeachment: “… treason, bribery, or other high crimes and misdemeanors” (U.S. Constitution, “Article II Section 4”, 06.21.1788). But what exactly is a “high crime or misdemeanor”? Allow me to sidetrack the both of us with a tangent about justiciability.

Justiciability is a concept, of sorts, which allows courts to look at something and make a decision based on the law. Lack of standing is the usual go-to for saying something is non-justiciable. For example, the House of Representatives recently had a case it brought against the President thrown out for lack of standing (Lawfareblog,“U.S. House of Representatives v. Mnuchin,” 06.03.2019). Standing just means that you are the party affected by this particular action you’re suing over. It’s deemed non-justiciable in order to prevent everybody from suing everybody else over everything, because that would just be mayhem. Moreover, the issue you’re raising must be “ripe” and not “moot.” For example, if you were to go to court to obtain an injunction, an order from the court, against a company to stop it from publishing an article, but the article has already been published, then that case is moot and the court won’t even consider it. The courts hold vast power, but they can’t turn back time, and they can’t unring a bell after it’s already been rung. There are various exceptions to these but they are pretty rare; Rudy Guiliani mentioned an exception for standing relatively recently, and abortion access is a mainstream exception from mootness.

The other non-justiciable type of case is what is called a “political question.” This is the equivalent of the judicial branch wandering over to the workbench of the executive or legislative branch and trying to tell those people how to do their job. For instance, if Merrick Garland sued Congress for failing to advise and consent on his appointment, the court wouldn’t touch the case with a 50-foot pole, because it has no inclination to tell Congress how to do its job of advise-and-consent. 

Impeachment lands pretty squarely in this political question wheelhouse. The most in-depth court decision regarding impeachment is almost entirely devoted to spelling out that the courts will not meddle in an impeachment. Recently, however, Professor Alan Dershowitz, an expert in constitutional law at Harvard, floated the theory that the Supreme Court could intervene in an impeachment trial, an idea that could generously be described as absolutely crackpot. The decision in question is Nixon v. United States, and before you ask, no, not that Nixon. The Nixon involved was actually former Chief Judge of the United States District Court for the Southern District of Mississippi Walter Nixon, who was suing because he alleged that the Senate improperly tried him. The case had no dissents, but multiple concurrences, and the majority opinion summed up the entire thing in under a sentence: “…Before we reach the merits of such a claim, we must decide whether it is ‘justiciable,’ that is, whether it is a claim that may be resolved by the courts. We conclude that it is not” (Nixon v. United States, 01.13.1993). It wasn’t a close call or something still in dispute. Impeachment is purely in the realm of the legislative branch.

Which brings me back to the phrase “high crimes and misdemeanors.” Given that the judicial branch will have nothing to do with an impeachment, and since impeachment is the sole responsibility of the House of Representatives, “high crimes and misdemeanors” is defined as, well, whatever Congress wants it to mean. It can define criminal conduct, or it can define non-criminal conduct. It can be a lucid, intelligent, well thought-out charge, or it can be entirely stupid and arbitrary, like “The President disrespected the office by wearing a tan suit.”

Now let me get to what you’ve been waiting for: Should President Trump be impeached?

Since we’ve already determined that impeachment and removal is a political question, the answer, of course, is going to be political. Indicting a sitting president is an open constitutional question—disallowed under Department of Justice guidelines—making the only redresses for misuse of power either impeachment and removal, or voting out the offender in the next election. Given that there is no way on earth that two-thirds of the Senate will actually vote to remove a sitting president, impeachment at this point would only be for political virtue-signaling—a signal that the House is out of touch with what the general populace actually wants, given that a majority of Americans don’t support impeachment (NPR/PBS NewsHour/Marist, “Poll of 944 National Adults,” 06.2019). 

The question that should be asked is the same question that should be asked for any other piece of policy: Does this policy work toward the long-term welfare of the United States? Don’t let the words “convict” or “try” throw you off of what impeachment is. It’s pure politics. Nothing more, nothing less.

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