An introduction to impeachment
The word “impeachment” has been on everybody’s lips for several months. Now that the House of Representatives has sent its articles of impeachment against Trump to the Senate, we are going to be hearing it constantly.
What is impeachment?
The word “impeach” first came into the English language in the late fourteenth century from the French empêcher, via the Late Latin impedicare, “to fetter, catch, entangle.” In the mid 15th century, it acquired its legal sense of “to accuse, bring charges against.” It applied to the king or the British House of Commons in the specific sense of “to bring a formal accusation of treason or other high crime against (someone).” The general sense of “accuse a public officer of misconduct” emerged from this usage by the 1560s.
From the adoption of the United States Constitution in 1788 to this date, 19 federal officials have been impeached, including a Senator, three presidents (Andrew Johnson, Bill Clinton, and Trump), a U.S. Secretary of War, a Supreme Court Justice, and 13 federal judges.
One could say that “to impeach” is just a fancy way of saying “to accuse.” However, the U.S. Constitution states a president “shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes or misdemeanors.” Therefore, it refers to a specific procedure directed at the president and other officials. It is neither a criminal nor civil proceeding, like a murder case, or a breach of contract, but rather political and therefore subject to different rules. This is not to say that it’s a simple matter of politics in the sense of what Democrats or Republicans stand for, or the policies they favor.
Under the Constitution, the House of Representatives may present “articles of impeachment” to the Senate. These are equivalent to “counts” in a criminal complaint or indictment; for example, homicide plus assault plus unlawful possession of a gun can be separate counts arising from the same set or related sets of facts.
Because the Constitution is silent on how to conduct an impeachment, the matter is completely up to the House of Representatives, which makes the rules on how to conduct its investigations, the presentation of witnesses, the admissibility of evidence, and any other relevant issue. That’s what the House did in Trump’s case under a Democratic majority, resulting in bitter charges of unfairness by the Republicans.
Similarly, if the House impeaches someone, it is up to the Senate to establish the rules and procedures to try the case. That’s what the Senate is doing under a Republican majority, resulting in bitter charges of unfairness by the Democrats.
Both Democratic and Republican leaders have been defending their positions with arguments that contradict what they said when their roles were reversed during the times Nixon and Clinton faced the possibility of or actual impeachment.
The Chief Justice of the Supreme Court is tasked with presiding over the impeachment trial, but his role is largely ceremonial. The Senate calls the shots via a majority vote. Neither the House nor the Senate is bound by the rules of evidence or the rules of criminal or civil procedure.
Two articles of impeachment
In Trump’s case, the House has drawn two articles of impeachment based on related sets of facts: abuse of power and obstruction of Congress. The abuse of power centers on his attempts to pressure president Zelenzky of Ukraine to throw dirt on Joe Biden. The obstruction of Congress is based on Trump’s refusal to cooperate with the investigation into the Ukraine affair, his directives to potential witnesses not to give testimony before Congress, and instructions to federal agencies and officials not to provide any documents whatsoever. His obstruction is obviously intended as a cover-up of numerous misdeeds and abuses and constitutes consciousness of guilt.
The impeachment by itself carries no legal consequences for the president. It is now up to the Senate to listen to the evidence and try Mr. Trump. If convicted, he will just be removed from office; there is no fine or jail time as punishment. If not convicted, he will go on with his pathological lying, stupid tweets, insults, and unlawful behavior while sitting in the Oval Office.
Only after he leaves office, whether by being convicted or after completing his terms (could be plural!) in office, can he be indicted for crimes (as long as the statutes of limitations have not run out), according to an infamous Department of Justice memorandum of law. This memorandum has no basis in the law, according to a federal judge who considered the matter last year, but it was very useful for Mueller to give Trump a get out of jail free card.
At least seventeen major criminal investigations surround Trump personally, Russia’s role in the 2016 election, and Trump’s network of businesses and business partners. His company, the Trump Organization, his charity, the Trump Foundation, and his three oldest children also face or have faced lawsuits and a variety of potential fines and damage awards. These criminal investigations, lawsuits, and indictments filed in state and federal courts by individuals, companies, and state attorneys general against him personally and in his role as president were spawned by Robert Mueller and a half-dozen other federal, state, and local authorities. These and other actions against Trump, such as the fraud charges he already settled concerning Trump University, can proceed at any time, also subject to statutes of limitations.
The term “to impeach” has a second major acceptation: to challenge the credibility of a witness. A witness is typically impeached when testifying at trial under cross-examination by counsel for the opponent. The cross-examining attorney brings to the attention of the court and the jury that the witness is contradicting himself by pointing out, or reading out loud, parts of the witness’s previous deposition testimony, or pointing to documents that tell a different story. A history of lying or deceptive behavior may be used for impeachment as well. Other witnesses may also be used to impeach previous witnesses. In Trump’s case, all witnesses offered coherent and mutually consistent statements, and none was challenged regarding the facts.
Treason, bribery, or other high crimes or misdemeanors are four types of violations specified in the Constitution for which a president and others may be removed from office.
Treason is the crime of betraying one’s country. Trump has repeatedly betrayed our country by siding with or abjectly kowtowing to Kim Jong Un and Vladimir Putin. He has denigrated our law enforcement and investigative agencies, parroted Russian talking points, and invited interference in our elections by Russia, China, and Ukraine. He has revealed classified material to the Russian ambassador. He has placed his personal political interest over the security interests of the U.S. by withholding aid and an invitation to the White House for Zelenzky. He has appointed cabinet members who oppose the core missions of their departments, causing particular damage in the areas of education, health, our national parks, and environmental protection, as if wanting to destroy both our country and the world at large. However, the House Democrats never thought of adding an article of impeachment for treason.
Bribery is both a constitutional crime and a statutory crime. A constitutional crime is an insult to the Constitution itself and doesn’t require an underlying statutory crime. Don’t listen to the occasional hired-gun academics that will shamelessly say otherwise on Fox. A statutory crime, on the other hand, is fettered to the Constitution. For example, it has to conform to due process, equal protection, and equitable considerations. An impeachable crime can be said to be whatever the legislature decides. With a statutory crime, on the other hand, specified “elements” constituting at least one “cause of action” must be satisfied. The current bribery statute is narrower and more difficult to enforce than the common understanding of bribery when the founders drafted the Constitution, and Trump certainly has committed that offense with his quid pro quo requested of Zelenzky. But Democrats decided to leave out bribery.
It is generally agreed that the adjective “high” in “other high crimes and misdemeanors” refers to both crimes and misdemeanors. In other words, constitutional violations should not be petty offenses whether they are crimes or misdemeanors.
Nowadays we understand “misdemeanors” to mean lesser offenses, in contrast with the more serious “felonies.” But when the word demeanor came to life in late 15th century Britain, it meant “behavior, bearing, deportment.” In the impeachment clause, the constitution is not classifying crimes, it is employing the word “misdemeanor” in that old sense of misbehavior. Just like fellatio by an intern upon President Clinton was a sufficient predicate for impeachment, Trump’s myriad indecencies should provide a framework for another article of impeachment–not to mention his many cruelties against the weak and defenseless in contrast to his meekness and scandalous submissiveness to his matinee idols, Putin and Jong Un. But the Democrats were afraid to address these and many other forms of Trumpian misbehavior.
Other high crimes and misdemeanors
The first article of impeachment against Trump falls under the high crime category. It’s the crime of abuse of power. Trump’s infantile position is that, because he has the power, he cannot commit a crime. He believes that he can kill someone in the middle of 5th Avenue and not be held responsible. He argues that he enjoys something called absolute privilege, which would neuter Congress’ oversight powers. He also claims absolute immunity, so that not only is it inpermissible to indict him as long as he’s president, but also that he cannot even be investigated. And he has floated the totalitarian notion that he should be able to stay in office indefinitely. Trump wants to be a king. A long time ago, Washington, Jefferson, Hamilton, etc. proscribed kings in this land of ours. Trump doesn’t care. He doesn’t respect any laws, treaties, the constitution, or the norms of decency and being human. But he’s not facing impeachment for any of that. The Democrats were afraid to complicate matters. Everything should be simple. Just two articles.
Many high misdemeanors can be cited as well. The way he has exploited, denigrated, insulted, and defamed women. The tens of thousands of lies concerning everything large or small. The code language and dog whistles he uses to communicate with white supremacists and other fascists. His attacks and constant undermining of American institutions. And so on. But the Democrats thought it was too risky to mention those.
The whole Mueller investigation has been totally ignored. Two years and more than $30 million spent, a clear blueprint for the drafting of several articles of impeachment on obstruction of justice, and an exhortation for the Congress to continue its investigations into all the roads that lead to Moscow, and to shore up defenses against upcoming Russian hackings–totally forgotten. Mueller not only recited the facts supporting indictments, he set forth the law, showed how it had been violated based on those facts, and cited copious authorities on point; in fact, he practically wrote meticulous memoranda of law that DOJ lawyers could cut and paste or that Congress could use to draft additional articles and continue other promising investigations that could ensnare conspirators as well as Trump. Apparently, that would have made matters too complicated also.
Trump is solely accused of having abused his office to benefit himself and trying to obstruct the investigation into the particulars of his abuse. In the Senate, all senators act as jurors. The Constitution requires a two-thirds supermajority to convict. Chances are nil the Senate will convict Trump, partly thanks to the Democrats’ timidity and a number of mistakes that require another long article to discuss. Besides, Mitch McConnell and other Trump sycophants have made it abundantly clear there will only be a sham trial.
To be continued . . .
Amaury Cruz is a writer, lawyer, and political activist from Miami Beach.