The Presidential impeachment process is an action so extreme, and so challenging to the core of the democratic process, that it has happened just three times in 231 years of American presidential history. Out of the 45 people who have held the office of president, only Andrew Johnson, Bill Clinton, and Donald Trump bear the stigma of an impeachment. None of them, though, was removed from office.
Most recently, in January and February of 2020, Americans faced a third impeachment trial, just over 20 years after President Clinton’s proceedings ended. The members of the U.S House of Representatives voted to impeach President Trump in December, of 2019, alleging that he committed an action that fits within the Constitutional provision of “treason, bribery, or other high crimes and misdemeanors” that warrants a trial in the Senate. The Senate conducted the trial, with the Chief Justice of the Supreme Court, John Roberts presiding. The Senate heard the evidence that the House managers believed warranted President Trump’s removal from office. The Senate had two options: guilty, which removes him from office, and not guilty. A vote of not guilty would mean nothing happens and the president continues in office, just like in the previous two presidential impeachment trials. Had the Senate found President Trump guilty, they would have had another decision to make: whether or not to prohibit him from ever holding another federal office of trust. The Senate acquitted President Trump on both articles.
What is impeachment?
The Presidential impeachment process is the legal and Constitutional process by which an elected official gets removed from office for cause. When the founders of the United States of America met to lay the foundations of their new country, they created three branches of government along with checks and balances intended to ensure that no branch gained too much power over the others. The founders especially feared a single president growing so powerful that he could declare himself king and undo the constitutional republic that formed the new democratic nation’s political bedrock. To prevent such an eventuality, the framers laid a process to allow Congress to impeach the president. Each chamber of Congress has a separate and unique role to play in the process.
According to some constitutional scholars, presidents do not have to commit a crime to find themselves subject impeachment. Criminal behavior may likely warrant impeachment, but so could corruption, abuse of public trust, or using the office to enrich themselves or their families. The constitutional scholars argue that the language is intentionally vague, giving broad leeway for the House of Representatives to determine what constitutes bad behavior by a president that could result in impeachment. This intentional vagueness is the primary reason politicians often threaten impeachment, but rarely initiate the “nuclear option” to remove an elected president. Such a serious action is difficult to justify under the exceptionally flexible guidelines. There are also future political implications to consider if there is not bipartisan support for impeachment.
Other constitutional scholars read the words in the Constitution quite literally: treason, bribery, high crimes, and misdemeanors are crimes by definition. These scholars posit that abuse of authority, malfeasance of office, and other actions not covered in the criminal code, should have the voters making the decision during the next general election.
Understandably, these scholars form their opinions, mainly along party lines. With Clinton’s hearing and trial in 1998-1999, and Trump’s in 2019-2020, we are seeing scholars switch their points-of-view. Is this because the scholars had an epiphany in the past twenty years? Or, is it more likely that Bill Clinton is a Democrat and Donald Trump is a Republican, and learned opinions take on the shape of political ideology?
Who can impeach the president?
The U.S. Constitution states that only the House of Representatives may impeach the president. Some observers find this law confusing since impeachment happens in the House, but impeachment trials take place in the Senate. Simply put, the House of Representatives impeaches the president, which means the majority of the members of the House believe that the president’s actions potentially warrant his removal from office. Only after the House has impeached the president, does the U.S. Senate take on the responsibility to hold a trial to determine if the president’s actions warrant removal. Two-thirds of the Senate must find the president guilty of an impeachable offense before the Constitution allows his or her removal from office.
During President Johnson’s impeachment trial, Chief Justice of the Supreme Court Salmon P. Chase presided over the trial. The House sent an impeachment committee composed of members who backed terminating Johnson’s time in office. The president himself did not attend the trial, but his legal team defended him. During President Clinton’s impeachment trial, Chief Justice William Rehnquist presided. Much like the Johnson trial, the House sent an impeachment committee to act as prosecutors, while President Clinton had a legal team headed by his Deputy White House Counsel Cheryl Mills defending him. Some of the impeachment committee members at the Clinton trial still hold elected offices today. Trump’s impeachment trial began during the third week in January 2020, with seven managers from the House serving as prosecutors and a team of White House counsel and private attorneys representing Trump. The presiding officer for the impeachment trial is Chief Justice John Roberts. Which presidents have the House of Representatives impeached?
Only three presidents, Andrew Johnson, Bill Clinton, and Donald Trump each made history when the House impeached them. Attempting to govern a fractured and devastated country in the aftermath of the Civil War, Johnson, a Southerner, was alleged to have failed to manage Reconstruction effectively, resulting in 11 articles of impeachment in the House. During his trial in the Senate, Johnson won an acquittal by just one vote on each article. Clinton faced impeachment for committing perjury in a deposition. He lied under oath about his sexual relationship with a 22-year-old intern named Monica Lewinsky. A 12-vote margin in the Senate resulted in Clinton’s acquittal. Trump, accused of withholding military aid from an ally, with the additional allegation that he demanded that the ally initiate an investigation against the son of his Democratic opponent in an upcoming reelection campaign. These allegations generated two Articles of Impeachment: abuse of power and obstruction of Congress for exerting executive privilege and ordering his administration not to participate in the House process. Like Andrew Johnson, neither of the articles against Trump is a violation of the criminal code of the U.S.
The House of Representatives has begun impeachment proceedings against one other president. Richard Nixon faced impeachment in 1974 for his part in covering up a politically motivated burglary at the Watergate Hotel in Washington, DC. Before the House could impeach him, Nixon resigned: the only president to do so.
What is the presidential impeachment process?
The impeachment process steps are as follows:
- Congressional Investigation. If one or more members of the House of Representatives believe that the president’s conduct deserves impeachment, they introduce an impeachment resolution in the same way they would introduce a bill.
- Review by the Judiciary Committee or a Handpicked Committee. Historically, the resolution goes to the House Judiciary Committee, although the House leadership can appoint a select committee to handle the issue. If the Judiciary Committee votes down the resolution, it goes no further. If it votes to move the resolution forward, the matter winds up in the hands of a subcommittee.
- Referral to the Subcommittee on the Constitution. The members of the subcommittee investigate the accusations. If they believe impeachment is warranted, the members draw up Articles of Impeachment, which articulate the specific charges the president faces.
- Discussion and Vote by the Judiciary Committee. The full Judiciary Committee determines if the Articles prepared by the subcommittee have merit. If the committee members vote not to move forward, the resolution dies. If the members vote to proceed, the Articles go to the full House of Representatives.
- Discussion in the Full House of Representatives. After discussion, the House holds a floor vote on each of the Articles of Impeachment.
- Vote in the House of Representatives. It takes a simple majority of the House members voting for the Articles in order to impeach the president. Currently, there are 435 members, meaning 218 people need to vote “yes” for the matter to move to the Senate. At this point, the president has been impeached but not removed from office. An impeachment is similar to an indictment by a grand jury.
- Process Moves to Trial in the Senate. The Chief Justice of the Supreme Court acts as the presiding officer. Unlike any other trial, the presiding officer’s decisions are immediately appealable to a majority vote of the Senate. With 100 Senators, 51 votes can change the ruling of the Chief Justice. Interestingly, the Chief Justice may cast the deciding vote¹. To begin the trial process, the House sends a committee of members to act as prosecutors. The president’s legal team defends him. The senators serve as jurors. The prosecutors do not have to meet the standard of reasonable doubt as they would in a civilian courtroom.
- Vote by the Senate. It takes a two-thirds majority of the Senate to convict a president of impeachable offenses and thus remove him or her from office. If the vote is for removal, a second vote, by a simple majority, becomes necessary to prohibit the former president from ever holding a federal office of trust again.
- Final Outcome. The Senate’s decision is final. There are no appeals. If there are crimes alleged, the Senate has nothing to do with deciding the innocence or guilt on a criminal matter: impeachment is a political process. Federal prosecutors may investigate and file criminal charges against the former president. There, the former president is afforded all of the rights any defendant has when accused of a crime.
Impeachment is an emotional, legally challenging, and politically fraught process. While the impeachment process is simple and straightforward, the matter of what constitutes an impeachable offense remains a topic of great national discussion.
¹ Chief Justice Salmon Chase cast votes during the 1868 impeachment trial of Andrew Johnson. Upon the Chief Justice casting a vote, one Senator objected. The question was put to the vote of the full Senate and overruled. Between trial sessions, the same Senator proposed a rule change disallowing a vote from the Chief Justice, that too, received disapproval. After the trial, the same Senator again raised the question of prohibiting a vote by the Chief Justice, and for the third time, the Senate voted against such a rule. In each of the subsequent impeachment trials, the Chief Justices indicated that they would not vote. With 100 Senators, a 50-50 tie on any motion meant that the motion failed. It also meant that, in order to remove the president, 67 Senators needed to vote for removal.