There has been much talk about impeaching President Trump. Some in the Democratic Party are calling for impeachment, others are cautioning against using impeachment as a political weapon. The Republican Party is campaigning on the notion of an impeachment, hoping to scare its voters into getting out the vote.
Impeachment in American history is rare. Nevertheless, the founding generation of the United States believed it important enough to include in the Constitution. There is a danger, however, to invoking impeachment without cause. Thus, this blog seeks to outline what impeachment is, and whether it can be used against President Trump. It will also include relevant theories of democracy and democratic decay that provide insight into the relevance and availability of impeachment. In sum, I outline exactly what impeachment is, how it works, and whether it can be invoked with respect to President Trump. This analysis is built primarily from Cass Sunstein’s excellent book: Impeachment: A Citizens Guide (Sunstein 2018). I also tie in several strands of democratic theory, particularly the relevance of political parties.
Who can be Impeached?
Most delegates of the Constitutional Convention supported the idea of a unitary executive, but were also fearful of the abuse of executive power. Thus, from a democratic theory perspective, designing the appropriate system for impeachment, and allocating the appropriate power and authority to various branches of government, was of central concern. Impeachment was one way to deal with that concern. While the American understanding of impeachment draws on antecedents of English law, the American understanding was “understood in distinctly republican terms.” (Sunstein at 38). Thus, in the colonies, impeachment was viewed as a mechanism by which the legislature could remove executive or judicial officers for inexcusable misconduct. Virtually all the discussion during the constitutional convention dealt with impeachment of the president, even though the constitutional provision extends to all civil officers.
Answer: the president, vice president, and all civil officers of the United States (which includes federal judges and appointed officials) can be impeached.
Who impeaches, who convicts?
James Madison remarked that where to try impeachment ranked “among the most puzzling articles of a republican Constitution.” (Sunstein at 49). There was debate about whether the Supreme Court or the legislature should handle the impeachment and conviction. You can think of impeachment as analogous to an indictment; that is, the president is not removed from office as a result of impeachment, but must be convicted. James Madison thought the House of Representatives should impeach and the Supreme Court should handle the conviction. Madison strenuously objected to the Senate trying the impeachment case, as the president would be “improperly dependent” on the Senate in the event of “any act which might be called a misdemeanor.” Governor Morris argued that, since Supreme Court justices were appointed by the president, they would be biased in their approach. Morris’ position, favoring the Senate to convict, prevailed, “evidently on the theory that it was the least bad of the various imperfect solutions.” (Sunstein at 49).
Answer:The House of Representatives can impeach the president with a simple majority vote. This does not remove the president from office. The Senate, with a 2/3 majority vote, must convict before the president is removed. If he is acquitted, the president remains in office even though he was impeached.
What can you impeach for?
In the early republic, there were instances of impeachment being used for political purposes; for instance, impeachment for showing a “dangerous tendency” was possible. However, even before the Revolution, impeachment was seen as limited to serious criminality or the intolerable abuse of power. The final language permits impeachment for “high Crimes and Misdemeanors.” As Sunstein notes, there was no discussion of what those terms meant. (Sunstein at 47). It is clear, however, that it includes “great and dangerous offenses,” which may include things like exercising arbitrary power (Sunstein at 52). While the language and debates are sparse, another possibility is ruled out: you cannot impeach the president because you don’t like him.
Answer: the language is mushy, but the standards for impeachment Treason, Bribery, or “high Crimes and Misdemeanors,” or for incapacitation under the Twenty-Fifth Amendment to the U.S. Constitution.
Trump, Impeachment, and Political Parties
Impeachment in the United States is a political decision; it is not brought by a prosecutor, private citizen, or judge. Only the House of Representatives can impeach, and only the Senate can convict. Thus, political parties play a central role in impeachment, which stands as a last-ditch effort to deal with a unitary executive who is guilty of “high Crimes and Misdemeanors” or is unable to carry out the duties and obligations of the Office of the President.
As Levistky and Ziblatt note, “Americans have long had an authoritarian streak…the real protection against would-be authoritarians has not been American’s firm commitment to democracy but, rather, the gatekeepers—our political parties.” (Levistky and Ziblatt at 36-37). The problem we face today is an immense polarization of the parties. Levitsky and Ziblatt contend that “reducing polarization requires that the Republican Party be reformed, if not refounded outright.” (Levistky and Ziblatt at 223). Likewise, Andrew Sullivan observes that “absent…consensus, it’s inevitable, especially in the current climate of polarization, that Democrats and Republicans will view impeachment from completely different perspectives.”
Alexander Hamilton predicted this scenario in Federalist No. 65. He noted that an impeachment trial in the Senate “will connect itself with the pre-existing factions, and will enlist al their animosities, partialities, influence, and internes on one side or on another, and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by a real demonstration of innocence or guilt.” (Sunstein 85).
Over the next few months, or years, we may come to see evidence of “high Crimes and Misdemeanors,” or perhaps evidence of incapacity on Donald Trump’s part. However, even if that evidence emerges, there are barriers to removing President Trump. As Hamilton and Sullivan contend, the structure of the impeachment process, and the current weakness and polarized nature of political parties, drastically limits the likelihood that impeachment will happen. Even if the Democrats sweep the House and Senate in 2018, they are not likely to have the 2/3 necessary in the Senate to convict. Thus, impeachment, for any reason, is not likely to be effectively used against Donald Trump absent a major shift in the Republican Party. And the evidence of that seems non-existent.