Presidential Impeachment

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Article Two of the United States Constitution establishes the executive branch of the federal government. It consists of four sections, the last one addresses the subject of impeachment.  There may not be a better example of checks and balances than this article.  In Section 4: Impeachment, the Constitution reads, “The President, Vice President, and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

Any official impeached by the House of Representatives and convicted by the Senate is immediately removed from office.  The Senate may also bar this individual from holding any future federal office.  No other punishments may be inflicted pursuant to impeachment proceedings.

The words “High Crimes and Misdemeanors” come to us from English common law; in US law, they refer to criminal actions, as well as any serious misuse or abuse of office, ranging from tax evasion to obstruction of justice.  

The ultimate authority for determining whether an offense constitutes grounds for impeachment rests with the US Congress.  The House of Representatives serves the same function as a grand jury, rendering an indictment, while the Senate, with the Chief Justice of the United States, serves as judge and jury.  

One note of possible interest, in the drafting of Section 4, the word “maladministration” was specifically rejected by the founding fathers because the word is too vague and susceptible to political abuse —which brings us to an examination of presidents who were, or might have been, or could be, impeached.

Andrew Johnson became president upon the assassination of Abraham Lincoln.  He became Vice President because Mr. Lincoln, following Union victories at Gettysburg and Vicksburg, began to think about reunifying the nation after the end of the war.  Johnson, a Democrat (albeit a fierce critic of secession), agreed with Mr. Lincoln about the importance of national reunification.  He also shared one personality trait with Lincoln: he was obstinate.  In contrast to Lincoln, Johnson was an uneducated man.  Thus, as a Democrat, stubborn to the point of obnoxiousness, and favoring leniency toward states and persons in rebellion, Mr. Johnson became an enemy of Radical Republicans in Congress.  

In the first few months of his administration, Johnson issued proclamations of amnesty for many Confederates, both government officials and military officers.  He also supervised the reestablishment of new governments in the rebellious states.  When Johnson vetoed legislation extending the Freedmen’s Bureau[1], Congress was unable to override the veto.  The subsequent relationship between the chief executive and the Congress was a downward spiral.  Johnson charged that Radical Republicans were treasonous, and members of Congress thought of Johnson as an idiot.

Blocked at every turn, in 1866 President Johnson decided to take his case directly to the people and so organized a swing through the nation speaking directly to voters. Essentially, this was a mid-19th Century equivalent of Donald Trump’s twitter campaign, only directed at radical elements of the Republican Party.  The campaign tour didn’t go very well, however.  Johnson adopted a combative demeanor toward citizens who didn’t agree with what he had to say.  It was not the sort of conduct Americans back then expected of their chief executive.

In an attempt to limit Johnson’s power, Congress passed the Tenure of Office Act in 1867.  The bill prohibited the president from removing members of his cabinet whose tenure in office required the “advice and consent” of the U. S. Senate.  Theoretically, the act intended to protect low-level patronage appointees, but in practice it was a congressional end run against the prerogatives of a sitting president, particularly as it applied to Secretary of War Edwin Stanton, whom President Johnson could not abide.

Three days after Johnson dismissed Stanton, the House of Representatives overwhelmingly voted to impeach the Johnson, charging him with “high crimes and misdemeanors.”  A week later, the House adopted eleven articles of impeachment, which included such allegations as dismissing Stanton without the permission of the Senate, appointing an ad interim Secretary of War without the advice and consent of the Senate, and conspiring with others to circumvent the will of the Congress.  They even charged Johnson with illegally seizing public property, to wit: The War Department.

The impeachment proceedings were, in a word, disgraceful and did nothing to advance the cause of American Republicanism.  It was also a dangerous assault upon our system of checks and balances.

The Senate convened to try the case against Johnson with Chief Justice Salmon Chase presiding —but the Senate was in no mood to listen to the rulings of the Chief Justice. They routinely reversed the Judge’s rulings or ignored them altogether.  Eventually, the Judge refrained from making any rulings at all.  Elected officials further dishonored themselves by attempting to bribe members of the senate: Ambassadorships, high ranking cabinet posts, and cash payments were offered to those who agreed to switch their votes from not guilty to guilty.  The mood of the country was so anti-Johnson that not one Republican senator who voted for acquittal ever again served in an elective office.

Mr. Johnson was acquitted of all charges by one vote.

Johnson had the support of the Supreme Court, which held that a president is entitled to fire cabinet officials (and other appointees) without the approval of Congress. Congress repealed the Tenure of Office Act in 1887.  There is a recent parallel to these events 19^thCentury events: President Trump recently appointed Matthew Whitaker as acting Attorney General after the forced resignation of Jeff Sessions.  Democrats in the House of Representatives and Senate have accused the president of an abuse of power.  These are men and women whose job requires familiarity of the United States Constitution. These, of all people, should know their country’s history.

Mr. Nixon’s problems were several.  To begin with, he was not a personable man.  He reacted to perceived enemies with anger and vindictiveness.  He despised the press corps, believing that they never treated him fairly or respectfully —which was true.

Nixon was barely elected to the presidency in 1968, defeating Hubert Humphrey in one of the nation’s closest presidential contests.  In 1972, Nixon was reelected by a landslide election against George McGovern —winning every state in the Union except Massachusetts.  But there was a problem: the Watergate burglary.  The men arrested for this offense were tied to the Committee to Re-elect President Nixon.  The White House denied any involvement, but the evidence revealed an effort to cover-up the investigation of the Watergate break-in, as well as other White House sanctioned illegal activities.

In 1970, The New York Timesrevealed a secret bombing campaign in Cambodia, which the North Vietnamese routinely used to transport troops and supplies into South Vietnam.  Outraged by leaks of classified material, Nixon ordered the implementation of wiretaps of news reporters and government employees in an effort to discover the source of the leaks.  Then, in 1971 The New York Timespublished the so-called Pentagon Papers which revealed the secret history of the Vietnam War. Nixon aides conspired to assemble a group of operatives whose sole purpose was gathering evidence against Nixon’s political enemies toward preventing further news leaks.  Called “the Plumbers,” the group broke into the office of Daniel Ellsberg, a psychiatrist who had leaked the Pentagon Papers to the press.

In 1972, as part of Nixon’s reelection effort, aides organized a campaign of political spying and dirty tricks[2]against Democrats, and this led to the break-in at the Watergate office complex.  Involved was the Attorney General of the United States, John Mitchell.  

In 1973, the Senate convened a select committee on Presidential Campaign Activities.  The coverup began to unravel; a special prosecutor was appointed, and it wasn’t long before all of the president’s men began to tell their story in exchange for lighter sentences.  In July 1974, the House Judiciary Committee began to approve articles of impeachment.  He was charged with high crimes and misdemeanors, including: obstruction of justice, abuse of power, and contempt of congress.

On 9 August 1974, to avoid congressional impeachment, President Nixon resigned the presidency.

In November 1995, President Bill Clinton initiated an extra-marital sexual relationship with the 21-year old White House intern, Monica Lewinsky.  The relationship continued for 18 months, during which time Clinton and Lewinsky engaged in a dozen sexual encounters inside the White House. After Lewinsky was transferred to the Pentagon, she confided certain details of the affair to a co-worker by the name of Linda Tripp.

In 1997, Tripp, secretly record conversations with Lewinsky, in which Miss Lewinsky gave detailed accounts of the sexual affair.  Then, in December of that year, lawyers for Paula Jones, who was suing President Clinton for sexual harassment, subpoenaed Monica Lewinsky.

In early 1998, ostensibly at the behest of President Clinton, Lewinsky signed an affidavit in which she denied ever having a sexual relationship with the president.  Tripp, upon learning of the affidavit, contacted the office Whitewater Independent Counsel Kenneth Starr to talk about Lewinsky and the tapes she made of their conversations.  Tripp agreed to wear a wire for the FBI, and Lewinsky again provided details about the affair.

FBI agents placed Miss Lewinsky into custody and she was interviewed by federal attorneys.  She was offered immunity if she agreed to cooperate in the government’s prosecution of President Clinton.  The news media broke this story several days later.  Clinton publicly denied all allegations.  Before the end of the summer, federal authorities had devised a full immunity agreement with Lewinsky and her parents. Lewinsky’s testified in front of a grand jury on 6 August.

President Clinton appeared in front of the same grand jury on 17 August and offered testified. Contrary to his previous testimony in the Paula Jones sexual harassment case, Clinton acknowledged that he had in fact engaged in a sexual relationship with Monica Lewinsky[3].  Mr. Starr delivered his completed investigation to the House of Representatives on 11 September, which included eleven grounds for impeachment and these encompassed perjuries, obstruction of justice, witness-tampering, and abuse of power.

Bill Clinton was the first president since Andrew Johnson to be tried by the United States Senate. Five weeks later, the Senate voted on two articles of impeachment.  The prosecution required a two-thirds majority to convict Clinton but failed to achieve even a bare majority.  Clinton was acquitted.  On the charge of perjury, 45 Democrats and 10 Republicans voted “not guilty.”  On the charge of obstruction of justice, the Senate was split.

Two months later, in April 1999, after being acquitted by the Senate, President Clinton was cited by Federal District Judge Susan Webber Wright for contempt of court owing to his willful failure to obey her repeated orders to testify truthfully in the Paula Jones case.  Clinton was fined $90,000, lost his license to practice law for five years, and, while pending disbarment from the U. S. Supreme Court, he resigned from the Supreme Court Bar.  Ultimately, Clinton agreed to pay Jones $850,000 in an out of court settlement.

Andrew Johnson’s problems were political.  He did not enjoy many political friendships; he was an unpolished individual, uneducated, and taken to drink.  He escaped conviction by a single vote.

Richard Nixon also did not enjoy many political friendships, but Nixon’s problems were primarily due to his low character.  I have no doubt that had Mr. Nixon not resigned, he would have been impeached, convicted, and removed from office.

President Clinton also has character abnormalities.  He was (and is) arrogant, careless, dishonest, and unprincipled.  Despite these flaws, Bill Clinton was hugely popular, both personally and politically.  Was he in fact guilty of the charges filed against him by a Republican House of Representatives?  I do not think there can be much doubt about that.  But the good-old-boy political network in the United States Senate apparently felt that dallying with a White House intern should not destroy an effective presidency.  Most Americans agreed and Republicans lost the House of Representatives in the next congressional election cycle.

Today, we have another president who could face impeachment, this time by a Democratically controlled House of Representatives.  It is almost impossible to avoid the continual stream of opposition politicians who appear on nightly news feeds mouthing the same accusations: Donald J. Trump, they say, is guilty of high crimes and misdemeanors.  No charges have been filed, of course, but the claims seem to come from the same template as before: obstruction of justice, violation of foreign emoluments clauses of the US Constitution, conspiracy, illegal appointment of an acting official, providing aid and comfort to white supremists, abuse of power, threatening nuclear war, undermining freedom of the press, and unlawfully imprisoning children.  There could be other charges, as well.  It all depends upon whose internet site you stumble across.

Is Mr. Trump guilty of any of these charges?  So far, a special prosecutor has been working to answer this question for about 18 months. Robert Mueller is seeking to determine whether Donald J. Trump coordinated or colluded with Russian operatives to interfere in the 2016 presidential election, whether there are any links between the Trump campaign and the Russian government, and any matter that has or may arise directly from the investigation, including obstruction of justice by Trump, any of his aides, family members, business partners, or anyone Trump may have known in grade school.

Whether Mr. Trump is ultimately impeached will depend on these three things: (1) the results of Robert Mueller’s investigation, (2) the impetus of a Democratic House, and (3) the will of the American people.  Personally, I hope the House does develop articles of impeachment.  It may not result in a conviction, but it will guarantee that the House of Representatives passes back into the hands of the Republican Party in 2020.

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