While the term “impeachment” is increasingly being thrown around, there is a reason the majority of Democrats have yet to get on board. The U.S. Constitution intentionally makes it very difficult for Congress to remove the president (or any federal official) from public office.
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In fact, no president has ever been “fully” impeached. While both Bill Clinton and Andrew Johnson were both impeached by the U.S. House of Representatives, the Senate did not convict them.
Impeachment Under the U.S. Constitution
Impeachment, which President Donald Trump has characterized as a “dirty, filthy, disgusting word,” is addressed in the Constitution. With respect to the president, Article 2, Section 4 states:
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.
Article I, Section 2, Clause 5 of the Constitution grants to the House of Representatives “the sole power of impeachment.” Meanwhile, Article I, Section 3, Clause 6 grants to the Senate “the sole power to try all impeachments.” When drafting the Constitution, the framers struggled to determine who should be able to decide whether impeachment is warranted, either Congress or the Supreme Court. According to Alexander Hamilton, the Senate was the “most fit depositary of this important trust” because its members are representatives of the people.
The Impeachment Process
The impeachment process initiates in the House of Representatives and ends in the Senate. The House must first vote to task the Judiciary Committee with determining whether there are sufficient grounds for Congress to impeach the president. After conducting its inquiry, the committee must determine whether to move forward. If so, it must then draft articles of impeachment, which lay out the official charges against the public official. It must then approve the articles and send them to the full House for consideration.
By a simple majority, the House can vote to impeach a federal official. Impeachment, which is akin to an indictment in an ordinary criminal proceeding, is only the first step in the process. Once the official is impeached, the Senate holds a trial to determine if the official should be convicted.
The chief justice presides as the judge during the proceedings, during which House members act as the prosecution and the public official is entitled to make a defense. Much like a court trial, witnesses may testify and are subject to cross-examination. The Senate needs a two-thirds majority to convict, which is a very high bar. Upon conviction, the public official is removed from office. If there is no single charge in the articles of impeachment that results in a “guilty” vote of a two-thirds majority of the senators present, the public official is acquitted.
Prospects of Impeaching Trump
While the threat of impeachment forced President Richard Nixon to resign, Trump seems to be daring Democrats to do it. However, many are wary of the political consequences of impeachment and are likely waiting for Congress’ ongoing investigations to conclude. Others have acknowledged that there is not yet evidence that Trump’s alleged misdeeds rise to the level of “high crimes and misdemeanors.”
Based on the numbers, it also makes sense for Democrats to tread carefully. Over our country’s history, the House has impeached just 17 federal officials. Of those, just eight were convicted, all of whom were federal judges charged with crimes ranging from tax invasion and bribery to using their office for profit. To remove Trump from office, it would take 20 Republican votes in the Senate.
Donald Scarinci is a managing partner at Scarinci Hollenbeck—read his full bio here.