Impeachment: a rough guide

Impeachment may not have been used in Great Britain since Lord Nelson won the Battle of Trafalgar, but it is frequently used in the United States. As talk of unhorsing President Donald J Trump continues, David Roberts QC traces the history and process


 

How do you unhorse a President? The United States uses the impeachment process with some frequency. Brazil and South Korea have each recently removed their president by means of the process of impeachment. Dilma Rousseff, the 36th President of Brazil, was impeached in 2016 and South Korea’s President Park Geun-hye was ousted in 2017. There has been no impeachment in the UK for 214 years.

Is it legal?

Many believe impeachment to be a legal process. It really isn’t; it’s political, although the procedure is set about with legal trappings. In the US, its Constitution provides the procedure. The House of Representatives votes to impeach and sends articles of impeachment to the Senate, which then tries the case and votes. That’s the short answer, but there is more to it.

In 1970, Representative Gerald Ford (later President) let drop the comment that: ‘An impeachable offence is whatever a majority of the House of Representatives considers it to be at a given time in history; conviction results from whatever offence or offences two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office.’

The Chief Justice of the US Supreme Court presides when the President is on trial, and the senators act as the jury. The House of Representatives can vote to impeach, or not to impeach, as its members see fit; unconstrained by any balance of proof, or the weight of the evidence. The senators can also vote as they choose. There is no appeal. A vote to convict can be an excuse to dismiss an unpopular President for reasons other than the offences charged.

Bill Clinton was plainly guilty of perjury and obstruction of justice, yet the slim majority voted to acquit him; and he remained in office, forever dogged by the cloud of his unlovely conduct.

The United States experience

At the Philadelphia Convention, in 1787, convened to settle the terms of the new Constitution, Benjamin Franklin (mischievous as ever) commented that historically, obnoxious chief executives were removed by assassination. He allowed that a procedural mechanism would be preferable.

Since then, 19 impeachments have been launched at the federal level; eight resulted in convictions, each a federally appointed judge; mostly for drunkenness on the bench. At the state level, there have been 30 impeachments, including eight governors. The most famous was that of Huey Long, Governor of Louisiana, in 1929. He was acquitted.

The first impeachment was that of Senator William Blount in 1797. He was acquitted because it was established that a senator was not the kind of official who could be impeached. He was an elected official, not an appointed one. It is true that the US President is an elected official, but the constitution specifically provides for the impeachment of a President.

The US Constitution specifically provides that a presidential pardon will not shield anyone from impeachment. Removal from office is specifically provided for in the Constitution.

The US Constitution

Article I, S.2.5: The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Article II, S.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.

Article I, S.3.6: The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

S.3.7: Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

(Theoretically, therefore, a person impeached successfully can be later tried criminally for the same offence.)

Process of Impeachment in the United States

The Justice Department, or independent counsel appointed for the purpose, investigates charges and presents them to the House of Representatives Judiciary Committee (HJC). The HJC reviews the evidence and then drafts articles of impeachment, which are presented to the House of Representatives.

The House debates the articles and votes by a simple majority. If the motion is carried the articles go forward to the Senate.

The HJC acts as the prosecution, presenting evidence. The accused may choose to be represented by counsel and are permitted to testify in their own defence.

The Chief Justice (or the Vice President, if the accused is a lower official than the President) acts as the judge, ruling on the admissibility of evidence. The senators act as jurors. A vote of at least two-thirds of the senators present, ie at least 67, if all are present, is required for a conviction.

At present the Senate musters 53 Republicans, 45 Democrats and two Independents (including Bernie Sanders), who caucus with the Democrats. Thus, in order to convict the current president, 20 Republican senators would have to be persuaded to vote for conviction, along with the Democrats and Independents.

High crimes and misdemeanors

‘High crimes and misdemeanors’ is a term but has never been defined. It is a unique phrase adopted by the framers of the US Constitution from that used for four centuries in England.

Impeachments were used frequently during the reigns of the Stuart monarchs (see box) with some merely charged with high crimes and misdemeanors. The Earl of Oxford was charged with procuring a naval commission for one William Kidd; ‘Known to be a person of ill fame and reputation and ordering him to pursue the intended voyage, in which Kidd did commit diverse piracies.’

The trial of Warren Hastings in England occurred contemporaneously with the Philadelphia Convention in 1787. The framers of the Constitution were well aware that Hastings was charged with high crimes and misdemeanors.

The phrase is confined to parliamentary impeachments. It had no roots in criminal law and the allegations of misconduct were not necessarily limited to common law or statutory derelictions or crimes. It is not necessary that a charge alleges a crime, though the use of the word ‘high’ implies that the offence be one against the state.

President Andrew Johnson was impeached for firing one of his cabinet ministers without authority; not a criminal offence. In truth, this was but an excuse for an attempt to remove an unpopular president.

The 25th Amendment

Although it does not provide for an impeachment process, we should consider the 25th Amendment, which provides another method for ridding the country of its president.

The 25th Amendment deals with succession to the presidency, establishes procedures for filling a vacancy in the office of vice-president and deals with presidential disabilities.

President Eisenhower suffered a heart attack in 1955 and fell ill several times. Each time his Vice-President, Richard Nixon, functioned as President. These incidents made it evident that clearer guidelines were needed and this led to the 25th Amendment. It provides for the Vice-President and half the cabinet to inform Congress that the President is disabled from serving, not just if ill, but also if unfit, for whatever reason. If the President informs Congress that he disagrees, Congress must vote on the issue. Thus, if the 25th Amendment is to be invoked now, someone will have to persuade Vice-President Pence to cooperate. Without his cooperation the 25th Amendment cannot be invoked.

Presidential impeachments

Four presidents have been impeached; John Tyler in 1843. A resolution to impeach him was moved in the House, but failed. Andrew Johnson in 1868 for violating the Tenure of Office Act. Richard Nixon in 1974 and Bill Clinton in 1998. None was convicted. Bill Clinton was acquitted of perjury and obstruction of justice, Johnson was acquitted, by one vote and Nixon resigned before the House voted on the issue. So, technically, neither Tyler nor Nixon were ever actually impeached.

When the staff of the HJC was preparing its report on impeachment, during the run up to the Nixon impeachment, a young lawyer by the name of Hillary Rodham, who had joined the committee staff shortly after her graduation from Yale Law School, worked on its preparation.

David Roberts QC is a retired lawyer and practised in Vancouver, British Columbia for 49 years, specialising in general commercial litigation and medical/legal work. He is also a member of the Bar of England and Wales, having been Called (Inner Temple) in 1953.


A brief history of UK impeachment

The first impeachment in England occurred in 1376, in the reign of Edward III; the very same year the king granted a gallon of wine a day to the poet, Geoffrey Chaucer. Eventually, the penalty following conviction became limited to removal from office.

A criminal proceeding is initiated by the House of Commons and the person impeached is then tried by the House of Lords. Judgment is given by a vote of a simple majority, which also passes sentence. The crown does not initiate an impeachment. That being so, the process could not be arrested by the king granting a pardon.

The procedure fell into disuse in England after the last mediaeval impeachment in 1459, but was revived in 1620. Between then and 1715 there occurred some 50 impeachments. This was the great period of impeachments, significantly, during the Stuart monarchies. Since then there have only been four. In all there have been some 70 impeachments in England, the last in 1805, that of Henry Dundas, Viscount Melville, a member of the Pitt administration.

The trial of Warren Hastings in the 18th century demonstrated that the process was too clumsy in cases that were at all complicated. Hastings was accused of maladministration, and cruelty to the people of India and the accusation arose out of events while he was Governor of Bengal, the de facto Viceroy of India. His trial, prosecuted by Edmund Burke, lasted seven years, from 1788 to 1795 and eventually resulted in his acquittal

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David Roberts QC

David Roberts QC is a retired lawyer and practised in Vancouver, British Columbia for 49 years, specialising in general commercial litigation and medical/legal work. He is also a member of the Bar of England and Wales, having been Called (Inner Temple) in 1953.