The way individuals who hold high office are removed from such office due to their mal-behaviour or wrongdoing, is done so by being “impeached”. In the context of the United States, this means that Congress is capable of removing individuals in official office within the US government such as, a Senator, Congressman, Secretary in the Cabinet, Ambassador et al. This piece will maintain its focus on the impeachment of a President.
The way the process works is outlined in the US Constitution. It allows for the impeachment of an individual provided they have committed “treason, bribery, or other high crimes and misdemeanours”. It is up to the US House of Representatives, the first branch of the Legislature in the US, and the Speaker of the House (this is the Majority Leader in the House) to bring articles of impeachment to a vote. The Congressmen and Congresswomen debate and vote on whether the conduct of the accused amounts to that worthy of a trial. It requires a simple majority to proceed to the next stage meaning a 51-49 split is sufficient.
If it passes the vote in the House, it comes to the trial phase. This takes place in the Senate, the second branch of the Legislature. It works like an ad hoc courthouse. Here, “impeachment managers” are appointed and these people are Senators, they act as the prosecutors in the case. Their job is to prove the guilt of the accused. The accused is entitled to a legal defence and these are usually outside counsel. The rest of the Senators act as the jury. They listen to the facts and the case being presented to them and ultimately, decide on the accused’s liability by a vote. However, it is different to the House as here it requires a supermajority to convict which requires two thirds or more of the vote.
There is no rulebook per se in these trials. Usually, the Chief Justice presides over the proceedings but the Constitution only specifies that the Chief Justice needs to preside over a trial of a sitting president. Thus, John Roberts CJ has decided not to be the sitting judge over this impeachment trial, now Senator Patrick Leahy is acting as the judge which creates some controversy as he also gets a vote as to whether to convict or not. The Senate votes on the rules of the trial prior to the commencement of proceedings. They vote on practicalities such as, how many days each party gets to present their case, what witnesses they want to hear, what kind of evidence they want to see, what the standard of proof is, if any, inter alia. For something that appears at first glance to be incredibly formal and of the highest of stakes, it is ran informally and is open to copious quantities of scrutiny, especially from the side of the defendant.
The consequences of being convicted are removal from office and being prevented from holding public office again in the future. There are no criminal or civil liabilities and there is no appeal process catered for.
There has been a total of four impeachments of presidents in US history, one for Bill Clinton and one for Andrew Johnson in 1868, both were never convicted in the Senate. It is notable to point out that Richard Nixon resigned to avoid being impeached following the infamous Watergate scandal, but articles were never officially filed. The last two belong to Donald Trump. The first in which he was accused of requesting a foreign government to interfere in the Presidential Election in 2016, he was acquitted in the Senate. The second is the one of recent days.
On January 6th, 2021 Donald Trump and his close associates allegedly incited a riot at the US Capitol Building in Washington DC with the aim of preventing the Electoral College votes from across the States from being formally recognised and counted in Congress as a victory for President Joseph Biden. As per President Biden, his conduct borders on sedition and insurrection. Even previous Republican allies of Trump such as now Minority Leader Mitch McConnell and Senator Mitt Romney, are openly and publicly showing disdain and disgust towards these actions.
Nothing like this has ever happened in the US. There has been an attempted siege on the temple of democracy and the beacon of hope for the Free World, preventing the processes of democracy from occurring, and creating rifts and divides that will have sown deep into society’s minds and souls. How can this be mended?
There is no one way to answer that definitively as either side of the divide are quick to say that their way is the best route to solve the problem, which is rather ironic. Democrats argue that impeachment will provide full and ample redress to the American people while some Republicans lead with the argument that impeachment would only pave the way for increased splits and divides. It is impossible to avoid partisanship in this ongoing debate.
The sole article of impeachment filed by House Speaker Nancy Pelosi was passed by the House by a substantial majority of 232-197. She is expected to send it to the Senate on the 25th of January however, the trial will not begin until the 8th of February due to agreements between the new Biden Administration and Senate Leadership to put it on hold in view of getting some major law-making duties fulfilled and over the line such as the $2.9 trillion aid package to help revive the economy following the impact of COVID-19.
It is difficult to predict whether Trump will be convicted the second time as the cards delt to both sides are now vastly different. The previous Senate involved in the 2016 impeachment trial had a majority for the Republicans however, this position has switched. The first impeachment came with a year left in his term in office whereas this trial will be taking place after the president’s term has ended.
There seems to be bipartisan support that the conduct in this case seems to be considered far more nefarious and serious. There are many other variables. The current Senate is a 50-50 split with the Democratic Vice President Kamala Harris holding the deciding vote but in order to convict, 17 Republicans have to vote in favour of impeachment in order to get a conviction.
There has been serious dissent and eruptions within the Republican Party following the January 6th insurrection with there being talks of Trump threatening to form a new political party if the Republicans in the Senate vote against him. This creates abundant and obvious concerns as to the suitability of current impeachment process to the situation at hand. How can a “jury” be vested with the power to convict when it clearly has prejudice or compassion toward the accused before the trial even begins and before any evidence is presented.
The norms of criminal trials and civil trials are not abided by here as here, it is a political trial. In the judges charge to the jury, which is when before the jury diverges to discuss a verdict following all due process of a trial, the judge will outline the facts of the case and the relevant law around burden and standard of proof. The judge tells the jury to be impartial and decide based only off the facts of the case which have been presented to them by the prosecution. Here there is no impartiality, there is strong incentive to stick to party lines in impeachment proceedings as falling out of consensus with your respective party’s view creates serious political obstacles.
This was experienced by Trump’s Vice President, Mike Pence in which he was hurled abuse and called a traitor for fulfilling his Constitutional role in counting the Electoral College votes on January 6th in which the insurrectionists sought to prevent. In a perfect world, political biases would be left outside the Senate Chamber when it comes to the interpretation of the facts and evidence against accused in order to get the fairest possible view as to the guilt of the impeached individual.
The Founding Fathers, when writing the US Constitution in 1776 clearly imagined a corrupt Executive by creating avenues of removing individuals from office, but it is unlikely that they imagined a politically tainted Legislature. It seems as if they were inspired by the romance of democracy where even if the impeached person is in the same party as those who are to vote on their conviction, they would do the right thing. But what is the right thing?
This was exactly the case in the first impeachment of Trump and the two other impeachments before that, where there was evidence of wrongdoing but still fell short of obtaining enough votes to obtain a conviction. However, this time may potentially be different and could be the outlier which subsequently might be the first of many victories coming for justice in the coming years following such a tumultuous time.
Unfortunately, the question still stands, how fit for purpose are impeachment trials held in the Senate in obtaining convictions where the House of Representatives has voted to impeach? It appears to me they cannot be fair and impartial in administrating justice given the fact that there has never been an impeachment conviction before now in the US.