Posted 20/07/2017 by Anna Hough
On 12 July 2017 United States (US) congressman Brad Sherman, a Democrat from California, formally introduced articles of impeachment against President Donald Trump into the US House of Representatives. The measure was co-sponsored by Texas Democrat Al Green. The articles of impeachment accuse the President of obstruction of justice in relation to the investigation into former national security adviser Michael Flynn by the Federal Bureau of Investigation (FBI), including ‘through threatening, and then terminating, [FBI Director] James Comey’. The impeachment measure is likely to meet with substantial opposition in the Republican-controlled House.
The impeachment process
While the term ‘impeachment’ is often used to refer to the removal of a government official from office, the impeachment process as set out in the US Constitution involves two distinct stages, with a stage carried out by each house of Congress. The House of Representatives may ‘impeach’ an individual—that is, formally approve allegations of wrongdoing amounting to an impeachable offence, which are called articles of impeachment. Once articles of impeachment have been approved by the House, an impeachment trial is held in the Senate. If the Senate impeachment trial results in conviction, the individual is removed from office. While the parameters of the impeachment process are set by law, impeachment has been characterised as a political rather than a legal process under the American constitutional system.
The process of impeachment provides a mechanism for removing a President, Vice President, or other ‘civil Officers of the United States’. Article II, Section 4 of the US Constitution allows for such removal ‘on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors’. According to the US Congressional Research Service, in the past Congress has taken a broad view of what constitutes impeachable conduct, with such behaviour including ‘improperly exceeding or abusing the powers of the office; behaviour incompatible with the function and purpose of the office; and misusing the office for an improper purpose or for personal gain’.
A resolution impeaching an individual is the first step in the impeachment process. Such a resolution is usually referred by the House to the House Judiciary Committee, which then conducts an initial impeachment investigation. If that Committee, by majority vote, determines that grounds for impeachment exist, a resolution impeaching the individual and setting out one or more articles of impeachment is referred to the House for its vote. The articles of impeachment set out in the resolution voted upon by the House may differ from those in the original resolution considered by the Judiciary Committee—for example, where the original resolution might include several articles of impeachment, the Committee may recommend that not all be included in the resolution voted on by the House. The House may also vote to impeach even if the Committee does not recommend impeachment.
If the article(s) of impeachment are approved by a simple majority of the House—218 of 435 votes— the matter proceeds to the Senate for an impeachment trial. Members of the House, known as managers, are appointed to present the matter to the Senate. If a President is impeached, the trial is presided over by the Chief Justice of the US Supreme Court. The respondent in impeachment proceedings may be summoned to appear before the Senate, but may choose whether or not to appear.
Evidence in the trial itself may be received by the full Senate or a committee, and no standard rules of evidence have been adopted, with the Presiding Officer either ruling on evidentiary questions or putting any such issue to a vote of the Senate.
Conviction on an article of impeachment requires the support of a two-thirds majority of the Senators present—67 of 100 votes. Removal from office occurs automatically upon conviction for an impeachable offence. The Senate may also vote separately, by a simple majority, to prohibit an individual from holding any future office of ‘honor, Trust or Profit under the United States’. Individuals convicted of an impeachable offence may also be subject to criminal proceedings for the same offence.
Incidents of presidential impeachment
To date, no US President has been removed from office by an impeachment process. Only two US Presidents—Andrew Johnson and Bill Clinton—have had impeachment proceedings brought against them proceed to the Senate. Both were acquitted.
In 1868, President Andrew Johnson was impeached on allegations that he violated the Tenure of Office Act which restricted the President’s power to remove members of the Cabinet without the approval of the Senate. Johnson viewed the legislation as unconstitutional and removed Secretary of War Edwin Stanton. He was acquitted by the Senate by a margin of just one vote.
In 1998, President Bill Clinton was impeached for perjury in relation to his testimony before a federal grand jury, and for obstruction of justice in regards to a civil rights action against him. The Senate acquitted Clinton of both charges the following year.
Seven other US presidents—John Tyler, Grover Cleveland, Herbert Hoover, Harry Truman, Ronald Reagan, George H W Bush and George W Bush—have had articles of impeachment against them introduced in the House, but none of those proceedings advanced to an impeachment trial in the Senate.
In 1974 the House Judiciary Committee recommended articles of impeachment against President Richard Nixon on the grounds that he abused the powers of his office by attempting to obstruct the investigation of the Watergate Hotel break-in, and that he refused to cooperate with congressional subpoenas. Nixon, however, resigned before impeachment proceedings commenced.
For more information about the impeachment process, see: J P Cole and T Garvey, Impeachment and Removal, Congressional Research Service, Washington, 2015.