President Andrew Johnson was impeached. President William Clinton was impeached. President Richard Millhouse Nixon was not. President Donald J. Trump is impeached but for the time being is being denied a trial. Sound confusing? Well if you will indulge me, I will try to sort out for you the legal process that is “Impeachment”.
President Johnson was impeached by the House of Representatives (“the House”) mainly for allegedly violating the Tenure of Office Act which the Congress put into law after Johnson was already the President. The Congress sought to bar the Johnson from dismissing members of his cabinet without the consent of the Senate. The House impeached President Clinton primarily for allegedly committing perjury to a grand jury and obstruction of justice emanating out of the Lewinsky affair. Impeachment proceedings were commenced against President Nixon and the House Judiciary Committee did approve three articles of impeachment against him. The allegations were of obstruction of justice, abuse of power and contempt of Congress. The full House never got to vote on the Articles of Impeachment against Nixon because Nixon resigned the presidency before the House took the next step which would have been for the full House to vote yea or nay to impeach.
If a President is impeached, does that mean that President is guilty?. The answer is no. BLACK’S LAW DICTIONARY defines impeachment as “a criminal proceeding against a public officer, before a quasi political court, instituted by a written accusation called “articles of impeachment”. Public officers that may be impeached include the President, Vice President, Senators, holders of certain Cabinet posts, U.S. Appellate and District Court Judges and even Justices of the Supreme Court. (note: only one cabinet member has been impeached – Secretary of War William W. Belknap and only one Supreme Court justice has been impeached – Associate Justice Samuel Chase). And so if a President is impeached it means simply that a majority of the members of the House of Representatives have voted to formally accuse him or her of “Bribery, Treason or other high crimes and misdemeanors”.
An analogous happening in our system of criminal justice is when a prosecutor requests the judiciary to convene a grand jury. Such happenings occur hundreds if not thousands of time each day across the United States. A grand jury hearing is the culmination of a grand jury investigation, usually, conducted under the auspices of the prosecutor. It is during the Grand Jury investigation that members of that jury consider complaints and accusations, testimony and other evidence presented by the prosecutor (a.k.a. the State). After hearing the State’s case, the members of the jury determine whether there is “probable cause” to charge the person of interest. If there is a finding of “probable cause”, then the members would likely and rightly vote to indict (or charge) the individual that was investigated. This not a finding of guilt, just an accusation. And so, just the same as what members of a grand jury are responsible for, so to are the members of the House, i.e. to impeach or not to impeach.
If any US citizen is indicted he or she has a right to a trial by a jury of his or her peers. For a Federal impeachment the accused (he who is impeached) has a right to a trial before the members of the US Senate who serve as the jury. In a criminal trial, the State has the burden to prove it’s case “beyond a reasonable doubt”. Note this burden of proof is far higher here than the burden to show “probable cause” in order to garner an indictment from a grand jury. In most criminal trials a conviction of guilt has to be by a unanimous finding of a jury. In the Senate trial of one who is impeached, a finding of guilt only requires a two-thirds majority vote.
In both the cases of President Johnson and of President Clinton, the Senate voted to acquit. In sum, the process starts with investigation and the hearing of testimony before the House Judiciary Committee, then a vote by the members of that committee as to whether to prepare articles of impeachment and refer them to the full House for a vote as whether to impeach. It is then that the Articles of Impeachment are to be walked across the hall in the Capital building to the Senate. It is in the Senate where the trial is held, the 100 members of the Senate making up the jury and at which there will be plenty of motions by defense to dismiss the charge(s) on various grounds, maybe some witness testimony, legal arguments all proceedings presided over by the Chief Justice of the United States Supreme Court and, THEN AND ONLY THEN will there come a vote to convict or acquit.
As of this date, January 8, 2020, The Speaker of the House, Rep. Nancy Pelosi of California has not found her way across the hall to the Senate. Unchartered territory? Well yeah. It is a Constitutional right of every American to have a speedy trial. For months we have been hearing of a “clear and present danger”. Maybe it became less clear as our elected officials partied over the holidays.
As the Clint Eastwood character Harry Callahan profoundly offered “a man’s got to know his limitations” so I’ll leave it for you folks to figure the rest of this one out.
The writer has a law practice in Hasbrouck Heights. Is admitted to practice law in the State of New Jersey, the District of Columbia, the US Federal District Court and the US Army Court of Criminal Appeals. He is a retired Major in the US Army, Judge Advocate General Corps.