Dr Rebecca Richards
Lecturer in International Relations – SPIRE
With bombshell news coming out of Washington DC in what seems like 5 minute increments this past week, it is understandable that the ‘i’ word – impeachment – has been brought up. Calls for impeachment have come from some Democratic party supporters since even before Trump was inaugurated as the 45th president of the United States in January. However, impeachment is rare, and it is not easy. So what is it, how does it work, and how likely is it to happen?
Impeachment is a check built into the US system through the Constitution. It is there as a mechanism to remove a president who has committed ‘treason, bribery, or other high crimes and misdemeanors’. Now, what those mean is vague and is therefore highly subjective: there is nothing in the US Constitution that specifies what ‘high crime or misdemeanor’ would be an impeachable offense. What is clearly implied, though, is that impeachment must occur because of a crime being committed, not because of political bickering.
In the US system, the president is immune from most legal action when in office, especially criminal action. However, even though the president has a wide berth when it comes to being able to do some things that for someone else would be illegal (declassifying information, for example), the president is not above the law. Thus, impeachment is a mechanism through which the US president can be punished for any crimes that are committed.
So, who determines if he (or, someday, she) should be impeached?
Impeachment is a lengthy and complicated process, and it is one that is not taken lightly in the US. And this is rightly so – impeachment is the only way to remove a president from office, so if it becomes a political tool used by either party to remove ‘not their guy’ from the presidency the damage to the democratic system in the US would be immense. Thus, the two impeachment proceedings in recent memory (the third, the impeachment of Andrew Johnson, took place in 1868) – Bill Clinton and Richard Nixon – both started with some form of investigation. For Nixon, the investigation came through a Special Prosecutor (infamously fired during the Saturday Night Massacre) but also through the press. After Nixon resigned, the Office of the Independent Council (OIC) was created to deal with, in part, future investigations of presidents. It was the OIC that investigated Clinton. The OIC has been defunct since 1999, but this does not mean that the president cannot be investigated.
Late this week news broke that the US Department of Justice has authorised a Special Counsel – former FBI director Robert Mueller – to investigate any possible links between the Trump campaign and Russian actors or agents during the 2016 election. The authorisation also allows for Mueller to ‘chase the trail’ of any activity stemming from those links if they are potentially criminal in nature. At the same time, both the House of Representative and the Senate are holding numerous hearings on Russian involvement in the election. The most active of these are the House Intelligence Committee and the Senate Intelligence Committee. Further, the FBI is also carrying out its own criminal investigation. Until he was fired last week, FBI Director James Comey was heading this. There is no current investigation specifically focused on Trump’s recent actions, including passing sensitive information on to the Russian Ambassador and Foreign Minister, or his alleged interference in the FBI investigation. There is also no investigation, that we know of, specifically focused on Trump himself. Investigations are likely to have an initial focus on Trump’s first National Security Advisor, Michael Flynn.
It is safe to say that there are mechanisms in place for investigating the president. Of the ones currently investigating the Trump campaign, the Special Counsel, Robert Mueller, is the least likely to be influenced by politics. For the others, including the FBI as it is under the auspices of the DOJ and therefore reports to an executive office, party loyalties and objectives will always be a concern.
So the president can be investigated. What next, then?
If there is strong evidence that a crime has been committed or is likely to have been committed, impeachment is a likely next step. I say likely as it is not guaranteed. Impeachment is a power held by the House of Representatives, an elected body imbued with party politics. The current House of Representatives is led by the Republicans, Trump’s party. However, their majority is small, and there are a significant number of House Republicans who represent districts that voted for Hillary Clinton in the 2016 election. In the interests of their own job security, they and others fearful for their seats in the 2018 mid-term election may support impeachment.
Impeachment proceedings formally start with the introduction of articles of impeachment in the House of Representatives. This originates in the Judiciary Committee before moving to the full House. It only takes a simple majority of the full House to pass this, meaning 218 out of 435 representatives must vote in favour. If the bill passes, the president is impeached. However, this is only the first stage of the process. Essentially, impeachment is analogous to indictment, meaning all it really is is saying there is enough evidence to put the president through a trial.
This trial takes place in the US Senate, a body of 100 senators. The trial is presided over by the Chief Justice of the US Supreme Court. It’s not a typical criminal trial. Rather, it’s a trial to determine if the president should be removed from office. The House of Representatives presents the prosecution’s case, based on the articles of impeachment. The president acts in his own defense, with the assistance of legal counsel. The Senate is the jury. The US Constitution requires a 2/3 majority for a ‘guilty’ verdict to be returned.
If the president is acquitted, he has still been impeached but will remain in office. If he is found guilty, he will be removed from office. Aside from resignation or death, this is the only way for a president to be removed. Once removed from office, criminal proceedings against the now former president may begin if appropriate, or if a pardon is not granted. These would be held in the same manner and using the same proceedings as anyone else accused of a crime.
Is it going to happen now?
In short, we don’t know. And if history is anything to go by, we’re a long way from knowing for certain. We also do not have any historical precedent of a president being forcibly removed from office, so we don’t know exactly how that would work.
The US has witnessed two completed impeachment proceedings, one in 1868 and the other in 1998. In both, the presidents were acquitted by the Senate. Impeachment proceedings against Nixon were started, but Nixon was never impeached as he resigned before the full House of Representatives could vote. It is likely, though, that if his case had gone to the Senate he would have been removed from office. He would have been the first to be removed in this way.
Impeachment is a legal procedure, but it is also a political calculation. We cannot ignore how party politics plays into this. There may be increasing talk of the impeachment of Trump, but it would take not only overwhelming evidence of a crime, but also overwhelming evidence of potential electoral damage in the 2018 Congressional midterm elections for a Republican House to impeach a Republican president. Congressional Republicans have already indicated as such, and Congressional Democrats have a vested interest in obtaining overwhelming evidence to avoid accusations of partisan politics from a deeply divided electorate. Things are moving fast, and there is no way to know exactly what will come. But even if impeachment is in the future, it is not likely to happen quickly.
Dr Rebecca Richards is a Lecturer in International Relations in SPIRE. Her interest in studying politics began in the US during the Clinton impeachment, which led her to studying US politics and US foreign policy until her PhD. She has previously taught US politics, and maintains a research interest in how US foreign policy and perceptions of US power impact upon the developing world.