For no reason at all, I thought we'd spend a little time talking about how the process of impeaching a president actually works. A lot of my students are surprised to find that "Getting Impeached" doesn't automatically mean that a president is removed from office. It's happened twice to a sitting president - Andrew Johnson and Bill Clinton - and both survived their trials in the Senate. It is extremely difficult to remove a sitting president - and that's by design.
First, the roots of the idea of impeachment are found in 14th century England. Under medieval British law, the House of Commons was the prosecutor and the House of Lords acted as the judge of Baron William Latimer, the first person to be impeached. What did Latimer do? Atlas Obscura has the story, but basically he sold a castle to the enemy, released enemy ships after taking a bribe, had the Crown repay loans that never actually existed, and kept fines that were meant to go to King Edward III. He essentially enriched himself through his position and disrespected the Crown. As a result Latimer lost his seat on the Royal Council and went to prison before King Edward III died and one of his buddies used his influence to release him. That was pretty much it for impeachment in England until the 17th century when Parliament put the 1st Duke of Buckingham, the Earl of Strafford, Archbishop William Laud, the Earl of Clarendon, and Thomas Osborne (Earl of Danby) on trial. Some were removed, some weren't, but impeachment was a deterrent against bad behavior by public officials.
Of course the British-leaning Alexander Hamilton (you know him: there's a million things he hasn't done, but just you wait...) would have known about all of this. In the 65th installment of the Federalist Papers, Hamilton outlined why having impeachment as a check against the Executive Branch was necessary:
A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elected. 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 not of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.
Hamilton deemed the Senate as the perfect venue for the trial as the Senate is basically the Colonial American version of the House of Lords. Hamilton:
What other body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?
(Emphasis Hamilton's).
And so the process is virtually the same in the United States, as the only body of the government that can impeach a president is the House of Representatives, while the trial is held in the Senate. However, a number of steps must be taken in order to get from the House's impeachment to the Senate's verdict.
Today the Speaker of the House of Representatives, Nancy Pelosi (Democrat from California) announced that there would be a formal impeachment inquiry into President Donald Trump. It's going to take a while to see any kind of conclusion, and here's why:
-There must first be an impeachment resolution introduced into the House of Representatives. This will presumably take place very soon.
-Then Speaker Pelosi has to direct the U.S. House Committee on the Judiciary, or a special committee, to hold a hearing on the resolution to decide whether to put the measure to a vote by the full House of Representatives, and when to hold such a vote.
The House Judiciary Committee is currently chaired by Jerry Nadler (D-NY). There are 23 Democratic members (including Rep. Nadler) and 16 Republican members of the committee. It would take a minimum 20 votes in favor of impeachment for the resolution to move to a full vote in the House of Representatives.
-The House of Representatives is currently controlled by the Democrats, with a 235-199 lean. There is one Independent representative - Michigan's Justin Amash, who famously left the Republican Party on July 4. A simple majority of representatives in the House is required to approve an article of impeachment, meaning it would take 218 votes in order to officially impeach the president. If 218 members of the House of Representatives vote to impeach President Trump, he's impeached. Gone, yeah? Simple, right? Haha no. Then things get Weird.
-The impeachment process then moves to the Senate, who officially "tries" President Trump to determine if he committed a crime. But "a crime" is somewhat misleading. Regard:
The first president to be impeached was Democrat Andrew Johnson of Tennessee, in 1868. Why? Well the official reason was because he removed Secretary of War Edwin M. Stanton from his position without the approval of the Senate as dictated by the Tenure of Office Act which he was trying to challenge, anyway (this is a longer story for another time). Johnson was on a mission to essentially block the Radical Republicans' attempts to upend white supremacy in the American South following the Civil War.
The House charged Johnson with "disgrace, ridicule, hatred, contempt, and reproach of the Congress of the United States" and impeachment passed 126-47. 53 members of the 40th Congress did not vote but, there were 47 Democrats in the 40th Congress. Please note how the Democrats and Republicans switched platforms between basically this moment and the mid-20th century. Would a civilian be convicted of violating the Tenure of Office Act? I don't think a civilian can be charged with violating the Tenure of Office Act.
-Anyway, there is no set procedure by the Senate for the trial of the President. Those details are determined by the Senate leadership. The Senate currently has a Republican majority by a 53-45 margin.
-Members of the House of Representatives are still involved in the trial, even though it takes place in the Senate, serving as "managers" like prosecutors would do, presenting evidence in a normal criminal trial.
-President Trump would have special counsel represent him in the trial with John Roberts, Chief Justice of the Supreme Court, presiding over the trial.
-The actual proceedings look like an actual criminal trial, but with the Senate as the jury. After closing arguments Senators can retire to deliberate and reconvene to vote "Guilty" or "Not Guilty." It takes a two-thirds majority of the Senate (67 Senators) voting "Guilty" in order to convict. If 67+ Senators vote "Guilty," then the president is removed from office and the vice president (Mike Pence) is sworn in as president.
-Again, Republicans enjoy a 53-45 advantage over the Democrats, with two Independent senators: Angus King of Maine and Bernie Sanders of Vermont. Both caucus with the Democrats. In order to remove President Trump from office, it would take all 45 Democratic senators plus both Independents (which isn't a stretch) plus twenty Republican senators to vote "Guilty."
How long will this whole [waves hands around head] thing take?
We only have two real precedents to go by here: Andrew Johnson and Bill Clinton. Richard Nixon resigned the presidency before the House of Representatives could vote to impeach over the Watergate scandal.
President Andrew Johnson went from dismissing Secretary Edwin Stanton on February 21, 1868 to being formally impeached on February 24. The trial began on March 4, 1868 - exactly one year before the winner of the 1868 presidential election would be inaugurated - and lasted eleven weeks, with Johnson escaping "conviction" on May 16 by one vote. Johnson did not seek reelection in 1868. This entire process took 83 days.
The House of Representatives began impeachment proceedings into President Bill Clinton (whose impeachment story is much more Rated R and, thus, interesting, and is definitely for another time) on October 8, 1998 - almost precisely in the middle of Clinton's second term - and formally voted to impeach Clinton on December 19, 1998. The actual trial in the Senate for Clinton was much quicker than it was for President Johnson. Clinton's trial began on January 7, 1999 and ended with his acquittal on February 12. All 45 Democratic senators voted Not Guilty, along with ten Republican senators. Clinton's removal failed by 22 out of 100 votes. From start to finish this process took 128 days. But there were some holidays in there.
Who knows how long it will take this time around? Months, likely, especially as 2020 is an election year.
