By Jonathan R. Wetherbee
Impeachments make history.
For President Johnson’s (1868) impeachment we learned that Congress couldn’t overreach into the Executive Branch; in Nixon’s impeachment proceedings (1973) we learned what he did was largely impeachable; and in Clinton’s impeachment trial (1999), we learned that you couldn’t remove a sitting President for something that wasn’t ‘substantial’ enough.
A lot of ‘impeachment takeaways’ pieces focused on the conduct of the individual Congresspersons and political parties, but missed just how the system encouraged its ending just as much as the individual actors did. When it comes to the Impeachment trial of President Trump, the question remains, “What will be the big takeaway?”
The answer lies in this simple fact: these impeachment proceedings were the first where the House and the Senate were controlled by different parties.
Why does that matter? Because of the split Congress, this was the first time in our nation’s history where the Senate would scrutinize the efforts of the House. Also, this was the first time in our nation’s history that the President belonged to the same political party as the party that controlled the Senate.
Those two facts meant that, more than ever, the system of impeachment would be scrutinized. Here are three systemic takeaways that will inform future impeachment proceedings:
(1) The impeachment and the impeachment trial are the same thing.
Of course, I have read the Constitution and have seen where it says that the House has the sole power to impeach and that the Senate has the sole power to convict to remove a public officer.
The Constitution gives the technical requirements, but it says nothing about what the impeachment process or the resulting trial needs to look like.
There are politically expedient reasons to hasten an impeachment trial. So, it could be the case that the Democrats never wanted to set the impeachment trial up for success in the first place. In the future, if the House wants to impeach the President with an opposition Senate, they’ll have to appreciate that political dynamic.
Countless GOP Senators referenced the hasty impeachment proceedings, and a few cited the number of witnesses in the House as a reason for not needing witnesses in the Senate. Those arguments from GOP Senators are profound because they’ve outsourced the fact-finding and investigatory functions to the House’s impeachment process.
The criminal trial equivalent of impeachment is ‘indictment.’ In criminal law, if a person is indicted, that’s that. Indictment kicks off a robust trial process (or, more likely, a plea bargain to avoid the trial). You don’t revisit the Grand Jury’s indictment of an alleged criminal during the trial, you simply investigate the allegation.
The arguments from GOP Senators show us that that is not the case for impeachment proceedings. If you’re an impeaching House and the Senate belongs to the opposition party, you can safely assume that your impeachment proceedings are the trial.
This probably shouldn’t come as a surprise either. The Bill Clinton impeachment process was short and the trial only had one witness, and that’s because the entire proceeding was built on a pre-existing report that provided everyone with a common set of facts and ample deposition testimony.
So, the Senate ‘trial’ there wasn’t a full-on trial either. When the Constitution says it gives the Senate the sole power to try impeachment cases, we should read the implication: the Senate has the sole power to decide what the impeachment trial looks like, regardless of if those trial-like activities come from the House or an independent investigator.
(2) The horse goes before the cart.
In the impeachment case against Donald Trump, there was one slam dunk of an argument.
The Constitution gives the House the sole power to impeach, but according to the President’s defense team the power doesn’t extend to “any member of the House.”
The 24 majority members of the House Judiciary committee subpoenaed White House officials, but they did so before they were authorized by a full vote of the House to conduct impeachment activities.
So, when the White House ordered non-compliance to those subpoenas, they weren’t technically obstructing an impeachment investigation because the House had not yet availed themselves of their Constitutional impeachment powers.
The Nixon proceedings give you an example of how to conduct an impeachment investigation. You authorize the committees first, and then those committees may issue subpoenas. The Democratic house put the cart before the horse, and in doing so also made the decision to take the fight to the courts like any other executive privilege dispute. (And again, there are strategic reasons to hamper the outlook for Trump’s case for impeachment.)
(3) The impeachment process needs to be broken down into checkpoints.
A trial in the US legal system is built with checkpoints. If you can’t get passed a checkpoint, you can’t go any further in the system.
A civil law system in the US has many checkpoints. Here’re some examples: if the alleged activity isn’t illegal, the court can dismiss for ‘failure to state a claim;’ if the initial evidence doesn’t come close to proving illegal conduct, the court can dismiss via a ‘motion for summary judgment;’ and obviously if there is an issue with facts or legal theory in criminal law, the judge / jury can acquit the defendant.
Even before the trial, legislators must have passed laws to define what is illegal and also what the remedies or punishments should be for committing that illegal act.
In the current impeachment process, there’s only two checkpoints: House impeaches (or doesn’t) and the Senate convicts (or doesn’t).
That process is incredibly favorable for the public officer who’s being tried (this year it was President Trump). When the Senate voted to acquit the President, they did so by answering each of the checkpoint questions at once.
A normal legal proceeding would have taken these (or at least some of these) questions one at a time. In an impeachment trial, that would have the effect of breaking up the votes for acquittal.
Imagine a future 52/48 Senate. Let’s say they use the current procedures with 52 votes to convict and 48 votes to acquit the sitting President. Falling short of the required 67 votes, the President is acquitted!
But let’s also say that each acquitting Senator only had one reason for acquitting out of 3: either they thought (1) the impeachment process wasn’t sufficient, (2) the conduct wasn’t impeachable, or (3) the punishment of removal didn’t fit the crime. If that trial was broken down into 3 checkpoints, then the imaginary future President would have been convicted through 3 rounds of votes for each of those questions that would have each resulted in a 68 to 32 vote in favor of removal.
Now, that’s a far-fetched hypothetical, but it illustrates how the lack of procedural checkpoints is favorable to the impeached public officer.
Also, if there were more checkpoints, the process would be more transparent and we the people would have a more clear understanding of where our Senators landed on the specifics of a conviction or acquittal vote.
Was this impeachment process an indictment of Congressional partisanship? Absolutely. House Democrats should have authorized the Judiciary and Oversight committees before they subpoenaed White House officials. Senate Democrats shouldn’t have been unanimously against the Obstruction of Congress impeachment article. Senate Republicans should have, at the very least, listened to what John Bolton had to say.
But our Congress also operates within a Constitutional framework that needs to be maintained over time. It’s safe to say that the House and the Senate should either appreciate and adjust to the flaws of the impeachment process or seek to reform those flaws outright.