You probably can’t get through your day without hearing terms such as “impeachment inquiry,” “high crimes and misdemeanors,” or “Senate trial.” All of these relate to the U.S. Constitutional action of impeachment of the President of the United States.

Only two presidents have been impeached in our nation’s history: Andrew Johnson in 1868 and Bill Clinton in 1998. Both Johnson and Clinton were later acquitted of all charges, each completing their terms in office. Richard Nixon resigned as president in August 1974, after impeachment articles were filed against him earlier the prior month.

Let’s look further at impeachment and its process.

What is Impeachment?

Impeachment allows the U.S. Congress to remove presidents from office prior to the expiration of their term if enough members of Congress vote, concluding that the president committed “treason, bribery, or other high crimes and misdemeanors.”

The United States Constitution gives the House of Representatives “the sole Power of Impeachment” and the Senate “the sole Power to try all Impeachments . . . [but] no person shall be convicted without the Concurrence of two-thirds of the Members present.”

The Origination

Impeachment originated in 14th century England. When our founding fathers were drafting the Constitution, they embodied the concept of impeachment, borrowed from England, into our country’s governing documents, For example, in The Federalist, No. 65, Alexander Hamilton stated that impeachment “is a method of national inquest into the conduct of public men” accused of violating the “public trust.”

The Constitutional ability to impeach serves as one of our country’s many checks and balances on power among the three branches of government. However, when drafting the Constitution, the framers only established a general framework for impeachment, leaving much to interpretation. For example, the framers did not clearly define what was meant by “high crimes and misdemeanors,” the meaning of which we’re still debating today.

The General Process

During impeachment proceedings, the House of Representatives “charge” a president, vice-president, or any other United States civil officer by approving articles of impeachment by a majority vote. If approved, the impeachment inquiry then transfers to the U.S. Senate where a committee of representatives, called managers, serves as prosecutors, so to speak, before the full Senate membership.

Sitting as the High Court of Impeachment, the Senate will conduct hearings where they will consider evidence, listen to witness testimony, and then vote to either uphold the impeachment or clear the accused official of all charges. If a U.S. president is being charged, then the chief justice of the United States Supreme Court presides over the proceedings.

Under the Constitution, to be impeached, the Senate must approve the charge by a two-thirds vote. If convicted, the penalty for the crime is removal from office. The convicted cannot appeal the decision. Once the Senate convicts, the decision is final.

What are High Crimes and Misdemeanors?

Based on British history, high crimes and misdemeanors means an abuse of power by a high-level public official, such as the president. It is not necessarily a direct violation of the law. A high crime implies, based on the views of our country’s founders, that a public official violated the public’s trust. There is no set standard of proof that must be met.

In describing what constitutes an impeachable crime, Hamilton has also stated, “The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.” High crimes and misdemeanors, without much more, falls into this description.

What Happens During Impeachment Proceedings?

The House

As discussed above, the House of Representatives initiates the impeachment process. To do so, the House issues an impeachment inquiry, which is essentially a resolution stating that they will investigate whether impeachable offenses have occurred. For example, the House may assign the task of the impeachment inquiry to the House Judiciary Committee, set up a panel for further investigation, or call a vote on the House floor.

For example, for both the impeachment proceedings against Nixon and Clinton, the House Judiciary Committee conducted an investigation before submitting the articles of impeachment to the entire House. According to the New York Times, six House committees are currently investigating President Trump on impeachable offenses, after which they will present their most persuasive case for impeachment to the House Judiciary Committee. The committees currently investigating President Trump include Oversight, Intelligence, Ways and Means, Financial Services, Foreign Services, and Judiciary.

If the House votes by a majority to approve the articles of impeachment, then the president or other official accused is impeached. Think of this as being indicted.

The Senate

After the approval of the articles of impeachment by the House, the Senate will then hold a trial (if it so chooses), conducted by managers, and overseen by the United States Supreme Court Chief Justice. The president may use defense lawyers, like in a typical criminal trial. The full Senate body serves as the jury.

During the Senate trial, no set rules govern the event. The Senate will initially pass a resolution, laying out any trial procedures that it will follow. For example, the Senate may limit the number of witnesses that can be called or determine if witnesses should appear in person or by video.

If two-thirds of the Senators vote to impeach based on the evidence presented, then the president is found guilty and removed from office. In some cases, the Senate may rule that the president is unable to hold any future public office as well. There is no appeal. After the president is removed from office, then the vice-president steps in, assuming the role of president.

Timeline of Events

Let’s now look at a timeline of events in the President Trump impeachment inquiry:

• What’s the Accusation? President Trump is accused of violating the law by pressuring the president of Ukraine into investigating former Vice-President Joe Biden, who is currently running for president, and his son, Hunter Biden, to “dig up some dirt” on the Democratic contender for the upcoming presidential election.
• Who is the Whistleblower? Someone with first-hand knowledge of the conversation between President Trump and the Ukraine president has come forward, serving as a federally-protected whistleblower. In August 2019, the whistleblower filed a complaint stating that she/he believed that President Trump abused his power for political gain.
• What about Ukraine Aid? The House of Representatives has suspended U.S. military aid in Ukraine, which occurred around the same time as President Trump’s conversation with the Ukraine president, under advisement.
• What has the House done so far?
  • In late September, Speaker of the House Nancy Pelosi announced a formal impeachment inquiry regarding President Trump, of which the House is currently investigating.
  • As of mid-October 2019, Speaker Pelosi stated that the House is not yet ready to hold a vote on impeachment.
• What could happen next? President Trump will remain in office if the House’s investigative findings are found to be insufficient for impeachment. If the findings are sufficient, then the House will hold a floor vote on one or more articles of impeachment (accusations).
  • If less than a majority of the House votes to impeach, President Trump will remain in office.
  • If a majority of the House votes to impeach, then President Trump is impeached.
  • If impeached, the impeachment proceedings will move to the Senate, which will then hold a trial.
  • After the Senate trial, the full Senate holds a vote to convict the president.
  • If less than two-thirds of the Senate vote to convict, then President Trump remains in office.
  • If more than two-thirds of the Senate vote to convict, then President Trump is removed from office.

The impeachment of a sitting U.S. President is a serious matter and one not to be taken lightly. In our country’s history, we have never removed a president from office through Constitutional impeachment. Although it appeared that President Nixon might be successfully impeached, he left office before that determination.

In the case of President Trump, if he is impeached by the House, but not convicted by the Senate, he could still make a presidential run in 2020. If he is convicted by the Senate, without a finding that he is barred from running for office again, he may be able to make a run as well. Because much of this current situation is new, being of the first impression, we’ll have to see how both the House and Senate proceed with the impeachment inquiry.

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Veteran litigator and television guest commentator Joseph M. Marrone, Esquire is dedicated to getting clients the recovery they deserve, whether it’s from a catastrophic injury or wrongful death. He can be reached at 215-732-6700 or 866-732-6700.

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