Impeachment

Thoughts from the Middle

Impeachment

by

Robert J. Fischer

It has been some time since I have written.  I apologize to my readers; however, I have been having some major health problems. But, I am now compelled, due to a general lack of understanding, to weigh in on the current Impeachment investigation.

The Impeachment Steps

There are four different parts to the impeachment process:

1. Accusation of misdeeds or crimes
2. Impeachment inquiries (investigation)
3. Articles of Impeachment (indictment)
4. Senate Hearing (prosecution)

The first part is a complaint or accusation of misdeed(s).  This is like a 911 call or a report of something that needs to be investigated.  Often the accusers are not identified.

The second part is the investigation (impeachment inquiries) of the accusations by the House.  This is much like a police investigation of a possible crime scene.  It does not require that anyone outside the investigative body be informed of the process or findings.  The formal investigation will determine whether Articles of Impeachment should be drafted.  This is much like the process involved with the States Attorney and/or the Grand Jury.  The various House Committee investigations (similar to the police investigators in a criminal inquiry) and other information are considered. At this point there may be some disclosure of the information that is being evaluated while a continuing investigation is conducted.  This process allows the accused to see some, if not all, of the information that the process has gathered. In criminal cases it is called disclosure.

Third, after the investigation has been completed, formal Articles of Impeachment (comparable to an indictment in a criminal case) may be filed if the evidence supports the accusation of a  crime.  If the evidence is not substantial, Articles of Impeachment should not be filed.

Finally, the Articles of Impeachment are sent to the Senate where the Chief Justice of the Supreme Court presides over a Senate Hearing (a trial-like proceeding).  As in a criminal prosecution, testimony is heard from the House as well as the accused.  The Senators evaluate this testimony and vote on the Articles. The standard of proof required for impeachment and conviction is left to the discretion of the Senate, Some argue that there must be proof beyond a reasonable doubt. Others argue for a preponderance of the evidence.  A two-thirds majority is required to support an Article of Impeachment.

Impeachment as Envisioned by the Founding Fathers

What is Impeachment as our founding fathers saw it?  The Constitution limits the basis for impeachment to “Treason, Bribery, or other high Crimes and Misdemeanors” They did not define the meaning of the phrase “high Crimes and Misdemeanors.” The idea that criminal conduct was the only grounds for impeachment was not the way many of the signers viewed this clause, and as we will note later in this piece, impeachments were often brought for reasons other than criminal behavior.

Alexander Hamilton, in Federalist 65, stated that the misconduct of public men (in other words, the abuse or violation of some public trust) could be an impeachable offense. Therefore, impeachable behavior could include behavior that violates an official’s duty to the country.  Such conduct may not necessarily be a crime.

The purpose of impeachment, as viewed by our founding fathers, was not punishment for criminal activity. Instead, impeachment served to effectively maintain a constitutional government by removing individuals unfit for office. To repeat, grounds for impeachment include abuse of the powers of government office, or a violation of the public trust.

Impeachment – Used over the Decades

Impeachment is such a serious process that the House of Representative has only impeached a total of 17 individuals.  Officials have been impeached and removed from office for a number of reasons, including drunkenness, biased decision-making, inducing parties to enter financial transactions, behavior that reflects badly on the office, and other criminal and non-criminal behaviors. Three of the articles against President Andrew Johnson were based on: 1) rude speech that reflected badly on the office, criticizing Congress and questioning its legislative authority; 2) refusing to follow laws (especially the Tenure Act); and (3) diverting funds allocated in an army appropriations act.  Each of these action brought the presidency into contempt, ridicule, and disgrace.

Over the years, Congress has identified three general types of conduct that constitute grounds for impeachment:

(1) Improperly exceeding or abusing the powers of the office;

(2) Behavior incompatible with the function and purpose of the office; and

(3) Misusing the office for an improper purpose or for personal gain.

As for criminal conduct, in 1974, the House Judiciary Committee rejected an article of impeachment against President Nixon alleging that he committed tax fraud. primarily because The fraud related to the President’s private conduct, not to an abuse of his authority as President. However, the Watergate burglary was rightly a matter of criminal behavior.  However, President Nixon resigned prior to the filing of Articles of Impeachment.

Impeachment– Donald Trump

As I write this piece, I can’t help but note the parallels between the accusations against Presidents Andrew Johnson and Donald Trump.  Both have harangued members of Congress.  Both interpreted laws as they felt fit, thus ignoring lawful requests.  Both have used monies allocated for specific military purposes for their own projects, and recently testimony seems to indicate that President Trump used his office in a number of inappropriate ways.

It seems clear to me that Articles of Impeachment are inevitable.  It will certainly be interesting to see how the Senate Hearings (trial) play out.  It is my opinion that the evidence is clear!  However, party politics often overrides the facts. Andrew Johnson was found not guilty.