Musing about law, books, and politics

Impeachment 201

“If we decide to report articles of impeachment,” Nadler said Monday, “we could get to that late in the fall. . .”

Take out your notebooks. It’s time Impeachment 201, the advanced course.

The elementary course is here.

The Constitution gives the basics. The House of Representatives . . . shall have the sole power of impeachment. (Art. I, Sec. 2)

Both the House and Senate make their own rules governing procedure.

A president can be impeached for treason, bribery, and “high crimes and misdemeanors,” a technical term borrowed from British law. The term evidently made sense to the framers of the Constitution, but subsequent generations find it rather, well, vague.

Since being formed in 1813, the Judiciary Committee has jurisdiction over impeachments. They decide what it means.

Committee members can introduce impeachment resolutions, or the House can initiate proceedings by passing a resolution authorizing an inquiry.

As of August 2, 121 House Democrats were in favor of opening an Impeachment inquiry.

That isn’t enough to impeach.

It isn’t clear to me that the Judicial Committee has to wait until a majority of the House wants the inquiry, but waiting seems prudent. Imagine starting impeachment proceedings, and the House votes no and doesn’t impeach. Trump will gloat and declare himself exonerated. It seems like the House Dems want more on board, which House leaders imply may happen when they have more hard evidence in their hands.

Next: If the committee opens an inquiry, evidence is gathered and presented. (Pretty much what they’re doing now, without calling it an Impeachment Inquiry. Why avoid calling it an inquiry? See.

When the Judiciary Committee is ready, the committee members vote on Resolutions of Impeachment, which includes Articles of Impeachment listing the grounds for impeachment.

These are presented to the full House of Representatives for a vote.

If a majority votes yes, the president is impeached. The House selects Managers to act as prosecutors in the Senate.

“The Senate shall have the sole to power try all impeachments.” (Art I, sec. 3)

The Chief Justice of the Supreme Court presides over the trial and rules on questions of procedure. The president is served a summons and the Articles of Impeachment.

The trial begins. Each side presents evidence, cross-examines witnesses, and present closing statements.

Only the Chief Justice can put the matter to a vote in the Senate.

At the conclusion of the trial, the Senate goes into a closed session and deliberates. A vote is called. 2/3 of the Senate is needed to remove the president from office.

Good luck with that, right?

Once upon a time, when I was naive (last year) I thought if the evidence was compelling enough, the Senate would convict and remove Trump from office. Now I’ve watched how the GOP treated the Cohen and Mueller hearings, and—let’s just say— I have doubts.

To avoid the spectacle of Trump being acquitted in the Senate and declaring himself exonerated, Laurence Tribe suggests impeaching but not giving the matter to the Senate. Tribe says to let the House findings stand, but don’t try in the Senate.

I have doubts about the wisdom of doing this. During the Mueller hearings, the GOP made the point that accusing a person without giving him a chance to clear his name in an open trial was highly unfair and put a “cloud” over that person’s head.

The Constitution says that the Senate “tries” all impeachments (thus a trial), so it seems to me impeachment is an accusation, and the trial the resolution of the accusation. Indicting (accusing) a person without allowing a trial seems problematic and a due process violation.

Walter Dellinger answers the question of whether McConnell can prevent block the impeachment from going to trial. He doesn’t think so.

I don’t see why the GOP would want that. Having watched the GOP performance at the Mueller and Cohen hearings, it seems to me they’d rather have a trial, present their “evidence” and “defenses,” do some grandstanding, and declare Trump exonerated. They’ll also declare that the “real” criminals are the investigators.

In other words, don’t expect a Senate trial to look like an episode of Perry Mason. (I just dated myself).

If removed from office via the Impeachment-Senate removal process, the President is still subject to indictment, trial, judgement and punishment according to the law. (Art. 1, Sec. 3)

That means he can be tried in criminal court after being removed from office. If not removed, he can still be indicted in regular court because the Senate trial is not a criminal matter and hence there is no double jeopardy.

Someone will say: “If they called it an impeachment inquiry, it’ll be easier to get evidence.” Not really. “Some legal experts have argued that the House might have a stronger legal position” if they called it impeachment. Notice the words “might” and “may.”

Lawyers love making arguments like “it might.” The problem is that people hear it and think “it will.” The reality is that the House court cases and demands for evidence are moving quickly by the standard of ordinary legal proceedings.

Consider how many days of preparation were required for just the Mueller testimony —and still people criticized the presentation. Putting this together can’t happen overnight.

I hope you all took notes. Impeachment will be included as a section of your Twitter Bar Exam.

[View as a Twitter thread]

Brian Pillion made this comment:

I agree: A Senate trial could go either way, including hastening the demise of the GOP as we know it.