By Daniel Cotter*
On December 18, 2019, President Donald J. Trump became only the 20th person and 3rd president to be formally impeached by the House. Debate began about whether he had been impeached if the articles were not submitted to the Senate. The better argument, reading the language of the Constitution, is that a majority voting to approve an article of impeachment is in fact impeachment.
Reminder of the Constitution Provisions on Impeachment
Article I, Section 2, Clause 5 of the United States Constitution provides:
The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.
The plain reading of that language indicates that the impeachment happens once the House votes and is not contingent or dependent on the trial by the Senate. As a reminder, the Senate language regarding impeachment in Article I, Section 3, Clause 6 is that the “Senate shall have the sole Power to try all Impeachments.” The Constitution does not specify when the House must transmit the articles of impeachment to the Senate.
What Constitutes High Crimes and Misdemeanors
The second debate and red herring in the Trump impeachment arena is that the two articles of impeachment for abuse of power and obstruction of Congress are not “high crimes and misdemeanors.” For example, former Acting Attorney General Matthew Whitaker stated while the impeachment inquiry was taking place:
Abuse of power is not a crime. The Constitution is very clear that this has to be some pretty egregious behavior, and [Democrats] cannot tell the American people what this case is even about right now.
Historical review of the 19 previously impeached officers of the government and the Founding Fathers refutes that notion. In Federalist No. 65, Alexander Hamilton wrote:
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.
Of those impeached to date, 15 of 19 have been judges. In reviewing the 19 prior impeachments, few of the matters charged would rise to the level of actual indictable crimes. For example:
Pickering was a U.S. District Court judge for the District of New Hampshire. The articles of impeachment accused him of mental instability and intoxication on the bench. Neither would equate to indictable offenses, but Pickering became the first House-impeached and Senate-convicted person in U.S. history. (U.S. Senator William Blount was the first impeached person, but the Senate refused to accept impeachment of a fellow senator by the House and instead expelled Blount on its own.)
Chase was an associate justice on the U.S. Supreme Court. Neither Congress nor President Jefferson cared for how partisan the Supreme Court and grand jury statements had become. Their solution was to impeach Chase on charges that he engaged in the arbitrary and oppressive conduct of trials. He was charged with 8 articles of impeachment but was acquitted by the Senate. Referring to the Chase impeachment, Chief Justice John Roberts told C-SPAN several years ago:
I think the most important thing for the public to understand is that we are not a political branch of the government. They don’t elect us. If they don’t like what we’re doing, it’s more or less just too bad- other than impeachment, which has never happened, or a conviction on impeachment.
President Johnson was the first president impeached, with the House voting by a margin of 126-47 that he “be impeached of high crimes and misdemeanors in office.” A week later, the House passed 11 articles of impeachment against Johnson. The articles consisted of a number of petty charges and mostly focused on his alleged violation of the Tenure of Office Act. The Senate voted on the first 3 articles, falling short of conviction by one vote on each, and never formally addressed the remaining articles.
Mixed Record by Senate
Of those impeached by the House, there has been a less than fifty percent conviction rate by the Senate:
- One Senate refused to try (Blount);
- Eight guilty;
- Three resigned office and the Senate dismissed; and,
- Seven acquitted.
Some Republicans suggest that the articles of impeachment approved by the House and that will eventually be submitted to the Senate are not impeachable offenses meeting the “high crimes and misdemeanors” requirements. However, as the House Judiciary Committee report in 1974 concluded:
While it may be argued that some articles of impeachment have charged conduct that constituted crime and thus that criminality is an essential ingredient, or that some have charged conduct that was not criminal and thus that criminality is not essential, the fact remains that in the English practice and in several of the American impeachments the criminality issue was not raised at all. The emphasis has been on the significant effects of the conduct– undermining the integrity of office, disregard of constitutional duties and oath of office, arrogation of power, abuse of the governmental process, adverse impact on the system of government…. It would be anomalous if the framers, having barred criminal sanctions from the impeachment remedy and limited it to removal and possible disqualification from office, intended to restrict the grounds for impeachment to conduct that was criminal.
Thus, like most of those who proceeded Trump in being impeached, the requirement of criminality need not be part and parcel of the articles of impeachment against Trump. History and our Founders confirm that assessment.
* Daniel Cotter is a lawyer practicing in Chicago. He currently is Co-Chair of the ACS Chicago Lawyer Chapter. He is a frequent writer on the Supreme Court and our judiciary, including on Twitter (@scotusbios) and the author of the recently published book, “The Chief Justices” (Twelve Tables Press).