Even before President Donald Trump took office, discussions of impeachment began and those discussions have both flourished and fizzled since.
Before him, there were talks of impeaching President Barack Obama. Before him, President George W. Bush., President Bill Clinton was, of course, impeached – and he was not the first; Andrew Johnson holds that distinction – but the U.S. Senate declined to remove him from office. And lest we forget, Richard Nixon resigned before facing a formal vote on his impeachment. While actual impeachment is rather rare, demands for impeachment have been happening since George Washington was president.
So what exactly is impeachment? Most people don’t have it quite right. In a nutshell, it is the process by which a legislature raises charges – similar to an indictment – against a government official. Once that official is impeached, he or she may – but may not – be convicted via a legislative vote, and then removed from office.
Many nations, including the United States, have written the concept of impeachment into their constitution. Indeed, the forefathers included a basic framework for impeachment in the U.S. Constitution.
Only the House of Representatives can initiate impeachment proceedings. These may be requested by any member of the House, either by preparing a list of the charges under oath, or by requesting a referral to the appropriate committee. Those outside of the House may also request impeachment proceedings, often through petition, grand jury, special prosecutor, or another governmental branch.
The precise process has been honed over the years. But it will begin with a resolution adopted by the full House, usually to include a referral to a separate committee. Grounds for impeachment, if found, are set out in Articles of Impeachment, which then get reported to the full House of Representatives with the committee’s comments and recommendations. The House will debate the Articles of Impeachment, also called an Impeachment Resolution, and a simple majority (i.e. 50% +1) is needed for passage of an article. The House will then adopt a resolution to notify the Senate of its action, and will ultimately send Representatives to read the charges to the Senate.
Once in the Senate, a trial will take place with the direct and cross-examination of witnesses and presentation of evidence. House members prosecute, and the impeached official has the right to counsel of his or her own choosing. The Senate then acts as jury, most often deliberating in private. After deliberations, a supermajority (two-thirds, specifically) vote is required to convict the official. Conviction results in ouster from office, and may result in a bar to holding further positions. But, other punishment is not available and, while the trial process is akin to a criminal trial, it is not truly so. That is, whatever acts led to the impeachment process could result in subsequent criminal or civil charges. Similarly, a “guilty” outcome is not pardonable.
So, what is an impeachable offense? At the federal level, an impeachable offense is “treason, bribery, or other high crimes and misdemeanors,” per Article II, Section 4 of the U.S. Constitution. While it is not entirely clear what constitutes (or doesn’t constitute) a “high crime or misdemeanor,” it is generally thought to be something that constitutes an abuse of power, dereliction of duty, dishonesty, and objective unfitness to serve.
Andrew Zashin writes about law for the Cleveland Jewish News. He is a co-managing partner with Zashin & Rich, with offices in Cleveland and Columbus.