Five years ago I joined a client as she testified to the House Government Reform Committee on which Rep. Cummings served. Though the client was blowing the whistle about misconduct that occurred at an agency headed by a Democratic appointee, Rep. Cummings did not hesitate to say on the record that it was among the worst things he had heard in his 17 years in Congress. I’d wish for a hundred more Rep. Cummings: unafraid to show their humanity, unafraid to criticize even their own party when it goes astray, unafraid to maintain friendships across party lines. The nation has lost a hero.
by David R. Schleicher
A December 2017 Newsweek/Wall Street Journal poll asserted that more than 40 percent of Americans believe grounds exist to hold impeachment hearings for President Trump. Four resolutions have been introduced in the U.S. House calling for impeachment, while a criminal probe is underway of possible ties between his 2016 presidential campaign and the Russian government. It all makes for a good time to pause and consider what impeachment actually involves.
- Impeachment is rare: No president was forcibly removed from office as a result of impeachment. Bill Clinton and Andrew Johnson were not convicted by the Senate. It is common for federal officials who otherwise might be removed from office to avoid a worse historic stain on their biographies by instead resigning, as did President Richard Nixon. Judges are the officials most likely to be successfully removed, which makes sense considering they are the referees in our democracy and therefore held to high standards.
- Impeachment is only half the process: While the term “impeachment” is often used to describe the entire process, in fact it is only half of it, as reflected by what happened with Clinton and Johnson. The House must approve Articles of Impeachment by a majority vote of those present. The Senate must then “convict” by a vote of at least two-thirds of those present — otherwise the Senate action is an “acquittal.”
- There’s likely no appeal: In the criminal or civil setting, a person unhappy with the outcome of a trial generally can appeal, often through multiple levels, potentially ending with the U.S. Supreme Court or an equivalent state court. By contrast, federal courts are extremely reluctant to hear appeals of Senate convictions, at least absent something as outrageous as a conviction vote reached by flipping a coin. When a president is at issue, the Constitution has the chief justice of the Supreme Court preside over the Senate trial. Even as a practical matter, the Supreme Court could not later hear the same case, lest it end up a 4-4 tie, given a recusal by the chief justice.
- Potential grounds for impeachment are numerous: Beyond treason and bribery, the “other high crimes and misdemeanors” wording opens the door to a wide range of charges. With a broad definition and senators effectively serving as the jurors, what justifies impeachment is ultimately a political question. Graft/corruption, tax evasion, perjury, obstruction of justice, false financial disclosures and sexual assault all have made (unsurprising) appearances. But among Articles approved by a House committee against Nixon were attempting to misuse the CIA and intentionally lying to the public about executive branch staff involvement in election-related misconduct.
- “What doesn’t impeach me makes me stronger.” While resignation is the most likely outcome for what otherwise would result in a post-impeachment removal, the process can backfire on those who pursue it. Bill Clinton reached his highest approval ratings during House/Senate impeachment proceedings — peaking at 75 percent (before declining after the proceedings ended in his favor). Then there was federal judge Alcee Hastings, removed in 1989 for accepting a bribe and lying about it under oath. The Senate is allowed to add a penalty of barring someone from further office but did not as to Judge Hastings. He got his revenge by later winning election to the U.S. House where he has served since 1993 and — get this — went on to use $220,000 in tax dollars to settle a 2014 sexual harassment complaint by a congressional staff member.
Those who wish to impeach any president are advised to make sure the American people will agree the conduct at issue is serious enough to warrant overturning the outcome of an election. Otherwise they risk ending up with a president more popular and more powerful. In our current situation, that suggests at minimum waiting for the outcome of Special Counsel Robert Mueller’s Russia investigation.
The impeachment process:
David Schleicher is an attorney who has represented whistleblowers, law enforcement, and other federal employees for over two decades. He splits his time among Waco, D.C., and Houston. For more information, see www.gov.law. This column originally ran in the Sunday, February 11, 2018 Waco Tribune-Herald. The column and graphic are (c) 2018 by Level-Headed Leadership, LLC but may be reproduced freely in their entirety.