I’ve come to realize I didn’t understand the process of impeachment and the standards by which it is conducted. Here are a few key things I’m betting most of us didn’t know. Some of them will surprise you.
First, the process has three steps:
- The Congress starts an investigation, which can be conducted by any part of that body—the House, Senate, a special counsel, etc.
- The House leadership decides on whether to vote on “articles of impeachment.” The articles need only a simple majority to pass. If they do pass, the person is impeached. However, the articles of impeachment are not a conviction; they are a formal allegation of wrongdoing. The analog to this in the criminal justice system is an indictment.
- The Senate then holds a trial to decide if the allegations are true with both sides bringing witnesses, evidence, cross-examination, etc. The chief justice presides when the president is impeached. If two-thirds of the senators deem the allegations true, then the person is convicted and removed from office and may be barred from holding future positions. If the super majority isn’t reached, the person is acquitted of the charges.
There are two big questions in all of this. First, what standard of proof is used for passing the articles and then convicting the person of the allegations?
It appears that the standard of proof required for impeachment and conviction is left to the discretion of each individual representative and senator. There is no standard defined. So while some may use the standard of beyond a reasonable doubt, others may not.
Second, what can someone be impeached for?
According to the constitution they can be impeached for “Treason, Bribery, or other high Crimes and Misdemeanors.” However, the phrase “high Crimes and Misdemeanors” is not defined in the Constitution itself.
The most authoritative explanation of what “high crimes and misdemeanors” are appears to be a document written by the staff of the House Judiciary Committee. The latest version of this was written in 2015 and is called “Impeachment and Removal.”
According to the Wikipedia article on impeachment, “While this document is only staff recommendation, as a practical matter, today it is probably the single most influential definition of “high Crimes and Misdemeanors.””
A key take away from that house committee report is that not all crimes are impeachable offenses and not all impeachable offenses are crimes. So what are grounds for impeachment? Well, it’s a bit vague.
In 1788, Alexander Hamilton argued in the Federalist Paper 65 that impeachment was for “the misconduct of public men, or in other words from the abuse or violation of some public trust.” The House Committee report expounds on that, including the following general grounds:
- “Constitutional wrongs that subvert the structure of government, or undermine the integrity of office and even the Constitution itself”
- “Abuse of the particular powers of government office or a violation of the “public trust””
The report goes on to say the following.
“Congressional materials have cautioned that the grounds for impeachment “do not all fit neatly and logically into categories” because the remedy of impeachment is intended to “reach a broad variety of conduct by officers that is both serious and incompatible with the duties of the office.” Nonetheless, congressional precedents reflect three broad types of conduct thought to constitute grounds for impeachment, although they should not be understood as exhaustive or binding: (1) improperly exceeding or abusing the powers of the office; (2) behavior incompatible with the function and purpose of the office; and (3) misusing the office for an improper purpose or for personal gain.”
But the report doesn’t give much definition beyond this, just a few examples of what individuals have been impeached for since the founding of the country. What does all of this mean?
I think the Wikipedia article sums it up well.
“Several commentators have suggested that Congress alone may decide for itself what constitutes a “high Crime or Misdemeanor”, especially since the Supreme Court decided in Nixon v. United States that it did not have the authority to determine whether the Senate properly “tried” a defendant. In 1970, then-House Minority Leader Gerald R. Ford defined the criterion as he saw it: “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.””
Impeachment is a political remedy, not a criminal justice or civil justice one. And given the vague definition of grounds for impeachment and the lack of any required standard of proof, what this all means, unfortunately, is that the process, especially in our current climate, is going to be rife, not with objectivity, but partisan politics. On both sides.
Here’s more for the curious.
