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Presidential impeachment: What it is, and when it's been used

As Democratic House Speaker Nancy Pelosi seems to have turned a corner in investigating alleged wrongdoing of President Donald Trump, CBC looks at the impeachment process and its history.

Nixon resigned amid impeachment process, but only federal judges have ever been removed from office

Top Democrat Nancy Pelosi has expressed reluctance about impeachment since her party took control of the House of Representatives after the 2018 midterms, undoubtedly aware of the divisive and not entirely successful history of the process for removing federal officials from office. (Susan Walsh/The Associated Press)

On Sept. 26, Nancy Pelosi, the Speaker of the U.S. House of Representatives, directed the Democratic committees investigating various allegations of wrongdoing by President Donald Trump and his administration to proceed under what she called an "umbrella of impeachment inquiry."

This was a largely a symbolic juncture because there hasn't been a binding vote to authorize a formal impeachment inquiry, let alone to draft articles of impeachment.

House Democrats then, on Oct. 29, unveiled a resolution calling for open hearings and requiring the House Intelligence Committee to submit a report on its findings and recommendations. The move aims to counter complaints from Trump and his Republican allies that the closed-door impeachment proceedings have been illegitimate and unfair.

Developments continue to gather speed after reports first emerged of a whistleblower complaint that laid out concerns about Trump's dealings with the new president of Ukraine, including his encouragement to investigate 2020 presidential hopeful Joe Biden and his son, Hunter, who sat on the board of a Ukraine energy corporation.

Here's what the impeachment process looks like, and some of the historical examples. 

What the U.S. Constitution says

Article II, Section IV of the constitution, ratified in 1788, stipulates that the president and other officers of government "shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanours." 

In his 2017 book,The Case for Impeachment, political historian Allan Lichtman of American University wrote that "to keep a rogue president in check, delegates separated constitutional powers into three independent branches of government [executive, legislative, judicial]. But knowing that a determined president could crash through these barriers, they also put in place impeachment as the rear guard of American democracy."

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Treason and bribery were not considered controversial grounds for impeachment in crafting the section's language, but terms such as "maladministration" and "malpractice" were bandied about before "high crimes and misdemeanours" were ultimately selected.

Joshua Matz, a constitutional lawyer, told CBC News last year that high crimes has "been understood as referring to extraordinary abuses, or corruptions, of power, or betrayals of the nation that imperil American democracy and the broader political system."

The process

If a president's conduct is deemed to be eligible for impeachment, the House debates and votes on whether to bring charges that have been recommended by its judiciary committee, or potentially by an overarching committee or panel that is established. A simple majority of the House's 435 members would lead to an impeachment resolution.

Theoretically, the Senate then holds a trial, with the chief justice of the U.S. Supreme Court presiding. The president would be represented by counsel in Congress. A two-thirds majority vote is required in the Senate to convict and remove a president.

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There is no specific legislation outlining the trial process, with its scope and specifics to be determined by the Senate in a series of resolutions. A group of House lawmakers could be called upon to play the role of prosecutors in the Senate trial.

The experience

In his contribution to the 2018 book Impeachment: An American History, Jon Meacham writes that after the first attempt to impeach a president — John Tyler in 1842 — many presidents have seen the spectre of an impeachment resolution wielded by angry political opponents.

History has shown it to be a divisive undertaking, politically, with lukewarm public support at best. Only eight officials — all federal judges — have been removed from office by impeachment, according to the National Constitution Center, a Philadelphia-based non-profit that promotes education and debate about the constitution.

U.S. President Bill Clinton gives a statement on Dec. 19, 1998, after being the first elected president to be impeached. Applauding Clinton are, left to right, Democratic Sen. Richard Gephardt, Vice-President Al Gore and Hillary Clinton. (Reuters)

In 1998, Bill Clinton was the first duly elected president to be impeached, on two of four counts recommended by the House judiciary committee: committing perjury to a grand jury and obstruction of justice.

As with the 1868 impeachment of Andrew Johnson — who had ascended to the presidency after Abraham Lincoln's assassination — a subsequent Senate trial did not lead to his conviction. Clinton's perjury charge was defeated 55-45, with a tally of 50-50 on obstruction of justice.

Johnson was rung up on 11 articles of impeachment, nearly all related to his attempt to fire the secretary of war. Senate votes on three of those articles each failed to reach two-thirds support, and the trial was adjourned.

In the case of Richard Nixon, a previously undisclosed audio tape was released implicating him in the coverup of the Watergate break-in. He resigned a month after the judiciary committee approved three articles of impeachment.

A question of remedy

If it's believed Trump committed actual crimes while campaigning or in office, there is an additional question of whether impeachment is the appropriate response.

In his report on Russian interference in the 2016 election, special counsel Robert Mueller outlined potential instances of obstruction of justice by Trump that could warrant further probing. But Mueller clearly felt that determination was best left to elected representatives and the American people. He also hewed to historical guidance from the Justice Department — never actually tested — that a sitting president can't be indicted. 

Mueller wrote that impeachment for abuses of power was not a substitute for potential criminal liability once a president leaves office.

Former special counsel Robert Mueller called impeachment a 'drastic' remedy, and perhaps not the appropriate course in certain cases. (Andrew Harnik/The Associated Press)

House Speaker Nancy Pelosi, no doubt mindful of a potential backlash from voters as the Democrats look to regain control of both the Senate and the presidency in 2020, seems aware of the calculus.

According to a July story in Politico that quoted anonymous Democratic legislators from an internal meeting, Pelosi reportedly said, "I don't want to see him impeached, I want to see him in prison."

The public role

In an interview last year with CBC Radio's Day 6, Matt Ford of the New Republic addressed some of the stakes for the Democrats with Trump embroiled in negative headlines about Russia.

"One of the things that really stands out about American history, especially when it comes to impeachments, is that there hasn't really been a precedent set for removing a president from office," he said. "And without that, Democrats have little to go on as to what threshold the American people will need before they are willing to accept the removal of a president from office."

When the televised Watergate hearings began in May 1973, only 26 per cent of Americans surveyed thought Nixon should be impeached, according to the Pew Research Center. As the existence of the tapes and the House recommendation of impeachment came in, the number of Americans who thought Nixon's actions warranted removal from office was still not overwhelming — some 57 per cent as he prepared to resign.

In a Gallup-led poll after the two articles of impeachment were approved in December 1998, Clinton actually saw his approval rating jump to 73 per cent, his highest in six years as president, as a segment of the population clearly believed it to be an inappropriate prosecution.

President Richard Nixon, seen in 1973, remained popular with a segment of the U.S. population even after resigning in the face of impeachment. (Charles Tasnadi/The Associated Press)

Even so, in both the Nixon and Clinton cases, their respective party lost the next presidential election (by razor-thin margins), leaving open the possibility there was some residual negative effect.

In a poll released on Sept. 25 by Quinnipiac University, 37 per cent of respondents said Trump should be impeached, while 57 per cent said he shouldn't. The results were highly partisan — 73 per cent of identified Democrats in favour, compared to four per cent of Republicans.

With files from The Associated Press


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