All About Impeachment

There are, from time to time, calls for the impeachment of the President, a Cabinet official, or a Supreme Court Justice. But most people don’t understand what impeachment actually is, the standards set by the Constitution, and the historical and legal precedents that apply to the impeachment process. Here is an explanation that should increase your understanding.

When public officials turn out to be corrupt, or misbehave, or are incompetent, or are negligent, or abuse their power, the people’s remedy is to remove them from office, and, if they have also broken criminal laws, have them prosecuted for their crimes. This is because governments run on trust, and according to laws passed by the people’s representatives.

In the case of public officials serving in the United States Government and under the Constitution and laws of the United States, such officials are held to a very high standard of behavior. They have all sworn the following oath upon entering office: “I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”   And the President has sworn the following oath: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States.”  The reason for these oaths is that the Framers of the Constitution were very concerned that the republic they created would be strictly governed by the Constitution, and that elected and appointed officials be held accountable for their actions, and in the case of negligence or misconduct, be removed from office.

The mechanism they chose for removal was the parliamentary process of impeachment, which had been in usage in England for the preceding 600 years, and they were relying on English principles and precedents when they incorporated the impeachment process into the United States Constitution.

Under the Constitution, only the House of Representatives can impeach a President or any other official. And only the Senate can try impeachment cases. “Impeachment” is really a two stage process. What the House decides is whether an official can be charged with certain kinds of negligence or misconduct (similar to an indictment issued by a grand jury), and the list of charges is called Articles of Impeachment. This list of charges is then sent to the Senate, which holds a trial on the charges. If the official is convicted of one or more charges he can then be removed from office. He can also be barred from holding any future federal office. But these are the only punishments the Senate can render. It cannot fine or imprison the official and it cannot impose a death penalty. If the official has actually committed one or more crimes, he can then be indicted, tried, convicted, and punished like any other criminal.

The grounds for impeachment are the same for the President, the Vice President, and all other officials: Treason, Bribery, and Other High Crimes and Misdemeanors. “Treason” is defined by the Constitution as “levying war against the United States or in adhering to their enemies, giving them Aid and Comfort”. “Bribery” has the commonly understood meaning of accepting money or other things of value in exchange for government favors. “Other High Crimes and Misdemeanors”, however, does not mean what it appears to mean. It is a term of legal art developed over several centuries of English jurisprudence, and refers to acts by an official which arise out of various kinds of personal misconduct which violate public policy and duty. It can be misconduct in the execution of the particular public office held, scandalous personal behavior, or violation of a public trust. The standard is fundamentally a moral standard. It was expected by the Framers that holders of high office, especially the President, be virtuous men. Only virtuous men could maintain a republic, because an immoral act would result in the person’s inability to command the public trust.

“High Crimes and Misdemeanors” does not mean criminal offenses, although criminal offenses can be grounds for impeachment. None of the Constitution’s  references to criminal proceedings apply to impeachments. Impeachable offenses, for instance, are not subject to jury trial (although they are to a Senate trial), have different rules of procedure (established by the Senate), require a 2/3 majority for conviction, and convictions cannot be appealed. Further, no double jeopardy attaches if an official is not convicted on the first attempt. The Senate can try to impeach him as often as it wants.

The remedy of impeachment is primarily focused on conduct, not policy. It is an official’s actions that can get him removed from office, not the political choices he makes as he exercises the functions of his office. Policy disputes are to be resolved through the constitutional system of checks and balances and through elections.

So what kinds of actions, other than treason or bribery, can get a President or other official impeached? Historically there are six general grounds that can get an official thrown out of office:

  1. Corruption :  This is the use of a public office for personal financial gain. It differs from bribery in that it is the office holder, not the private citizen, who is offering to exchange favors for money.
  2. Abuse of Official Power:  There are many forms of abuse of power. One is using one’s position to gain an advantage that results in personal gain, such as giving oneself rights in public land that is being sold. Another is appointing an unfit or unworthy person to public office, or more accurately, an incompetent, unqualified, or dishonest person to public office. Another is interfering with legal process, such as forbidding or hampering a marshal in the service of legal papers, or causing the discharge of a grand jury before it has completed its work. Another is inventing or advancing false legal claims such as a President claiming that he had false privileges and immunities. And finally, just acting in a manner prohibited by law, such as a knowing violation of a statute.
  3. Neglect of Duty:  This could include negligent or intentional failure to defend the country. It could also include negligence in a particular military campaign. The President or a cabinet official could be held responsible for serious mistakes by subordinate officials. It could also include things like failure to screen refugees or enforce immigration laws passed by Congress. And a cabinet official, such as the Attorney General, could be impeached for failing to enforce one or more laws.
  4. Betrayal of Trust:  This is breach of a higher duty inherent in an office which is the repository of a lot of public trust, such as President, Justice of the Supreme Court, or a cabinet officer.
  5. Encroachment on, or Contempt for Congress’ Rights:  This would include attempting by executive action any number of things which are within the sole legislative power of Congress, such as determining which illegal immigrants can remain in the country, creating a new national park or wilderness area, or changing the name of any national park or wilderness area.
  6. Misapplication of Funds:  When Congress appropriates funds for a particular purpose, it is not a suggestion to the President. It is a legal mandate that the funds be used for that purpose. So if the President uses them for other purposes he can be impeached.

And there are other actions besides those just mentioned that could get a President, in particular, impeached. If the President has a subordinate, such as the Secretary of Homeland Security, or even a member of the President’s staff, who is carrying out an illegal action at his direction, and the President subsequently tries to protect him, he can be impeached for his protective acts. If the President engages in any kind of obstruction of justice it undermines the legal system, and it is also a violation of his oath of office to see that the laws be faithfully executed.

Lying to the American People, especially about an important and material matter, such as the state of the country’s military capabilities, progress against an enemy, or the death of a public official, would also be an impeachable offense. And various criminal actions, such as engaging in perjury, subornation of perjury, concealing evidence, and obstruction of justice, besides being crimes, are also impeachable offenses.

The basic principle underlying all impeachment actions is that the President, or any other official, must be a virtuous man in whom the American people can place their confidence. Such a principle is essential to the maintenance of a constitutional government, because a constitutional government runs on sound morality and trust. Impeachment is about removal – removing from public office and power a man, who left unchecked, would damage the government and might imperil the freedom and liberty of the American People. It is their protection against tyranny and abuse.