Impeachment: What it Is, and What it Isn't
Updated: Dec 23, 2019
So we're really doing this? We're really impeaching Donald Trump? I didn't think this day would come. But here we are.
And so many questions are swirling through my brain, and through the brains of you, my gentle readers. A lot of people have asked me questions about what the heck is going on. But these questions boil down to four main categories:
1. What exactly is impeachment?
2. If Trump gets impeached, what happens next?
3. Is Trump being impeached for a good enough reason?
4. Is the right process being followed?
So let's take these questions one at a time.
1. Just what the heck is impeachment, anyway?
Impeachment proceedings are kinda the congressional version of a grand jury. A grand jury, like any jury, is a group of people who could not get out of jury duty. A grand jury is called to look at evidence of a crime. The reason they are called together is to decide if there is enough evidence to show that a crime really was committed, and the person who is accused of it really did it. If they decide that there is enough evidence to show those two things, then the state will go ahead and indict, which is a fancy way of saying the state will charge the accused person with a crime. After they are charged with a crime, a trial will take place, and they will be found either guilty or not guilty.
Impeachment is pretty much the same thing. The House of Representatives forms a committee to look at evidence. Looking at evidence can include calling witnesses, so they can do that, too. (You've probably noticed that quite a few people have testified before the House during this impeachment proceeding.) At the end of the impeachment hearings, the committee will say whether or not Trump committed an impeachable offense. If they think he did, then they will write this long legal document called the articles of impeachment. In the articles of impeachment, they will say what Trump did and why they think it is an impeachable offense. (If they do this, I will read it and tell you what it all means because I am deeply, deeply nerdy.)
2. If Trump gets impeached, what happens next?
If the House writes articles of impeachment, the next step is to send it to the Senate. The House of Representatives has the sole right to impeach, but that just means they have the right to gather evidence and say if they think Trump did something so bad, it is an impeachable offense. So in other words, if the House impeaches Trump, that means they will be saying that he did something really bad. To be clear, if the House impeaches Trump, that would not automatically kick him out of office. Removal is a result that could happen, but only after a trial in the Senate.
The Senate has the right to try all impeachments, meaning they are the ones who could have a trial. If they have a trial, they could decide that Trump is guilty of the stuff that is in the articles of impeachment. (And Mitch McConnell has said publicly that if the House does send over articles of impeachment to the Senate, the Senate would be obligated to have a trial. So it could happen.) If the Senate decides that Trump is guilty, they could vote to remove him from office and ban him from ever running for another federal office as long as he lives. But that's it. Impeaching Trump will not put him in jail. After Trump leaves office, he could be prosecuted later by different states for some things he's done, but that would be a separate process.
Also, if Trump gets impeached, and if the Senate votes to remove him or ban him from running for office again, Trump can't appeal those decisions. There is no appeal for impeachment. In 1993, the Supreme Court decided a case called Nixon v. The United States. In this case, Walter Nixon, a federal judge, had been impeached by the House. The Senate was in the process of removing him, and he was mad about it. He asked the Supreme Court to stop the Senate from removing him. The Supreme Court said no. The Supreme Court refused to get involved because the Constitution gives the House the sole power of impeachment, and the Senate the sole power of removal. Since both the House and the Senate had done what the Constitution had allowed them to do, the Court said they had no business getting involved. So if Trump gets impeached, removed or banned from office, he is stuck with that.
There are people who have said that even if Trump is impeached by the House, it is really unlikely that he will be convicted in the Senate. These people have said that a lot of Trump's buddies are in the Senate, and the Senate is mostly made up of Republicans, so they probably won't vote to remove Trump or ban him from running for office again. And frankly, these people are probably right. But I don't care. The whole point of impeachment is to allow our democratically elected leaders to remove a president if they have done something bad enough. The Framers, those dudes who wrote the Constitution, wanted to have a way to get rid of a president if they did something really bad. The Framers did not want to make us wait until we could vote that president out of office. So even if Trump doesn't end up getting impeached or removed, I think it's good that the House is going through the process. If nothing else, it shows Trump once again that he is a president, not a king.
3. Is Trump being impeached for a good enough reason?
Okay, so a lot of Republicans, and Donald Trump himself, have said that he is not being impeached for a good enough reason. They say that when Trump asked the president of the Ukraine for a favor in exchange for millions of dollars in military aid, there was no quid pro quo. Trump has said that even though he asked for a favor in exchange for the aid, ultimately, the Ukrainians got the aid, and the Ukraine did not investigate the Bidens. The deal didn't go down like Trump wanted, so no harm, no foul, right? The other argument I've heard tossed around is that this is a lousy reason to impeach Trump because, even if he did ask the Ukrainian president to investigate the Bidens, and even if we agree that was a bad idea, it isn't a crime, so it's not a good enough reason to impeach him.
So let's talk about the whole quid pro quo thing. Trump has it in his head that even though he asked the president of the Ukraine to do him a personal favor in exchange for military aid that had already been approved by Congress, it was not a big deal because Trump didn't get the favor, and the Ukrainians ultimately got the money. What Trump is missing is that, as our president, he is not allowed to pressure foreign governments to help him win his next election. When Trump asked Zelensky to publicly announce that he was going to investigate Joe Biden and his son, Hunter, Trump was asking Zelensky to give him something that could have been very valuable to Trump during his next presidential campaign. And our federal campaign finance laws say that this is not allowed. (In order to qualify as a misdemeanor campaign finance law violation, the thing of value needs to be worth at least $2000. It would probably cost the Ukraine at least $2000 to investigate Biden, and information about Biden doing something shady in the Ukraine would definitely be worth at least $2000 to Trump's next campaign.)
Being able to say something bad about Joe Biden could help Trump get re-elected. It could help persuade people to not vote for Biden, and to vote for Trump instead. Because of that, having dirt on Joe Biden would be a thing of value. And our federal campaign finance laws do not allow candidates to ask for anything of value from a foreign government that could help the candidate in their next campaign. Because then it would look like our president owed that foreign government a favor back. Also, the president could be so concerned about returning the favor, he would do so even if it were not in the country's best interests. So even in asking for the favor, Trump was probably breaking campaign finance laws. And that is a crime.
But an impeachable offense does not have to be a crime. Article II, Section 4 of the Constitution says that, "[t]he President, Vice President and all other 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."
Not many people think that Trump committed treason or bribery, so the debate really centers around high crimes and misdemeanors. So what the hell are high crimes and misdemeanors? The Framers thought that high crimes and misdemeanors were things the president might do that would abuse the power of his office, and breach the public trust. So a president commits a high crime and misdemeanor if he uses the power he has as our president to get something that would benefit him personally, but not be so great for our country.
Some people think that Trump committed a high crime and misdemeanor when he asked Zelensky to do him a personal favor in exchange for getting the military aid. People think this was a high crime and misdemeanor because Trump was using the power of his position to get dirt on the Bidens. Dirt on the Bidens would be great for Trump and his campaign, but would not benefit the American people. And Congress had already said yes to giving the money to the Ukraine with no strings attached, so Trump really didn't have the right to ask for anything in return for the money. Also, when the president has conversations with the rulers of other countries, the American people expect him to be doing stuff that will help us out as a country. We don't expect him to be asking for personal favors. We elect presidents to work for us, not for themselves.
So when he asked for a personal favor from Zelensky, he betrayed us. He was supposed to be working for us, and instead, he was working for himself. That is a breach of the public trust, and thus, a high crime and misdemeanor, and an impeachable offense.
4. Is the House using the right process?
Okay, so finally, a lot of you have been asking me if the process has been proper. I know that a lot of Republicans have been complaining that the House has been doing stuff that has been unfair to the president. Remember when that huge group of Republican congresspeople all walked down to the room where some closed door meetings were being held and had a protest? Remember how they said that the House was engaging in shenanigans because those first meetings were not held in public? And did you hear that Trump said something about how the process was unfair because the whistle blower has remained anonymous, and Trump should have the right to confront his accuser? Let's address those things.
Article I, Section 2 of the Constitution says that the House, "shall have the sole power of Impeachment." Period. So that means that they are in charge of all of it, including making the rules for carrying it out. So that means that they can write their own rules that say what they should do if an impeachment is going on. They have written rules for that. And they are following those rules. So it was totally fine that some of the early parts of that process were held behind closed doors. I understand that the Republican protesters were upset because they hate seeing Trump in trouble, but the House wasn't doing anything wrong.
Also, when Trump complained about not being able to confront his accuser, he was mixing up the rules of impeachment with the rules used in a criminal trial. The Sixth Amendment guarantees that if you are on trial for a crime, you can confront your accusers. But impeachment proceedings are not the same thing as a criminal trial, so that rule doesn't apply. Trump does not have the right to confront the whistle blower during the impeachment proceedings, and the whistle blower can remain anonymous.
I think the reason that so many of us have questions about impeachment proceedings is because they are so rare. There have only been two presidents in the history of the United States who have been impeached. One was President Bill Clinton, in the 1990's. The other one was Andrew Johnson, way back in 1868. President Richard Nixon was never impeached because he quit and left the White House before his impeachment proceedings could even start. And even though Johnson and Clinton were impeached, neither one of them was removed from office.
What will happen with Trump? I'm not sure. We will just have to wait and see. And if there are any other big developments that happen during this impeachment process, I will be here to explain them to you.