Explain It To Me: What Does Impeachment Mean Now?
[NB: check the byline, thanks! /~Rayne]
Trump was impeached Tuesday evening under two Articles of Impeachment — one for abuse of power, and another for obstruction of Congress.
Got it. This is pretty straightforward.
The House has “the sole Power of Impeachment” according to Article I, Section 2, subsection 5 of the Constitution.
Understood, no problem. That’s what the House exercised under Nancy Pelosi’s leadership.
We’re now to Article I, Section 3, subsection 6 after last night:
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
Nothing between Article I, Section 2, subsection 5 and Article I, Section 3, subsection 6 says that the House MUST or SHALL forward any impeachment to the Senate for a trial.
I think we’re all of us watching to see how this shakes out. Since Senate Majority Leader Mitch “Sits on 400 Bills” McConnell said last week he is coordinating the handling of the senate trial with the White House — a gross conflict of interest undermining Congress’s separate powers — and senators like Majority Whip Lindsey Graham have already decided to vote to acquit Trump, it doesn’t make much sense to forward the impeachment if already moot.
It makes sense to hang on to the impeachment articles until there is clarification about the Senate acting in good faith, “on Oath or Affirmation” as Article I, Section 3, subsection 6 says.
~ ~ ~
Now we arrive at my first question: is Trump still qualified to run for re-election?
See Article I, Section 3, subsection 7:
Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
Emphasis mine. Does “judgment” refer solely to conviction by the Senate after a trial once the impeachment has been forwarded to them? Or is the “judgment” when the impeachment has been pronounced by the House since the House has the sole power of impeachment? The Constitution says “Indictment, Trial, Judgment and Punishment” in subsection 7 but the wording, “Judgment in Cases of impeachment” may not mean “Judgment in Cases of conviction” — the latter would clearly limit the outcome of the House’s impeachment to a pre-indictment or indictment determination before the Senate’s trial.
This subsection occurs under Section 3 which defines the Senate’s composition and its most fundamental powers — specifically, trying the subject after impeachment — so we might assume this is the Senate’s “judgment.” But the Constitution’s wording is muddy.
We don’t have the benefit of precedent to rely upon for guidance. Andrew Johnson, impeached by the House in 1868 but not removed by the Senate, did not win his party’s nomination that year and left office in 1869 having never been elected to the presidency. In 1998 Bill Clinton was impeached by the House during his second term, though not removed by the Senate; he was ineligible to run for re-election.
~ ~ ~
My second question relates to a point Robert Reich made about a pardon for the impeached president:
… Regardless of whether a sitting president can be indicted and convicted on such criminal charges, Trump will become liable to them at some point. But could he be pardoned, as Gerald Ford pardoned Richard Nixon 45 years ago?
Article II, section 2 of the Constitution gives a president the power to pardon anyone who has been convicted of offenses against the United States, with one exception: “In Cases of Impeachment.”
If Trump is impeached by the House, he can never be pardoned for these crimes. He cannot pardon himself (it’s dubious that a president has this self-pardoning power in any event), and he cannot be pardoned by a future president.
Even if a subsequent president wanted to pardon Trump in the interest of, say, domestic tranquility, she could not. …
Apart from the specific reference to the House’s sole power to impeach, is this why the two Articles of Impeachment do not use the words “bribery” or “extortion” to describe what Trump did with regard to Ukraine — to limit the described crimes against the U.S. for which Trump could be pardoned by an interim successor or the next elected president?
Or if the crime(s) have not been spelled out in an impeachment, identified as a violation of specific U.S. law, can Trump still be pardoned for them, in essence given carte blanche after the fact?
Is this why the Articles were scoped so narrowly, to prevent an over-broad pardon?
So often it’s said the president’s pardon power is absolute, but impeachment appears to place the single limit. Where and when is that limit placed?
~ ~ ~
These questions have been chewing at me since Pelosi’s second gavel upon completion of the vote on the second article. I imagine the Republican Party will do as it’s done since 2015: roll over and let Trump run an obnoxious and corrupt re-election campaign, looking every bit as repulsive as he did Tuesday evening during his Battle Creek rally.
It’s also been niggling at me that twice in the text of the Articles of Impeachment it was written, “the President ‘shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors’.”
Shall, not may, be removed, on conviction for Bribery.
I noted also the use of the word “betrayed” in the Articles’ text:
… He has also betrayed the Nation by abusing his high office to enlist a foreign power in corrupting democratic elections. …
It’s not treason as we’ve discussed in comments, but a traitor shouldn’t get a pass for selling out his country’s national security interests for personal gain.
You can bet McConnell and Graham would already have ensured the conviction and removal of a Democratic president who likewise betrayed the nation. If only they moved with the same alacrity on those 400 bills sitting on McConnell’s desk.
Unfortunately, He is still qualified to run. My understanding is that the ban from office is a second vote that would come after a successful vote to remove from office. As for limiting a potential pardon, I don’t think they would be considering that point. The leadership is/was thinking a acquittal would be a foregone conclusion.
Rayne asked, “Is Trump still qualified to run for re-election?”
I’m guessing that disqualification from office also requires a two-thirds vote. But I freely admit that the text of The Constitution doesn’t explicitly assert that. Holy Schmoekels!
The ban on holding federal office is permissive, the Senate is free to impose it or not as a consequence of conviction. Because it would be a consequence of conviction on impeachment, the better reading is that imposing it requires the same super-majority vote in favor as does conviction.
The Founders expected the Constitution to be corrected and updated regularly. It wasn’t supposed to be treated like the Bible. However much we like to revere the Writers, *they* knew they were fallible and couldn’t plan for everything. I wonder if they even imagined the complete lack of personal honor, or concern for the country’s welfare among the ruling class & their servants in Congress. Rulers of England of their day were still reasonably patriotic towards their country, not the totally greed-obsessed thugs we have in charge today.
Ironic that the people insisting they are following the intentions of the Originalists are actually going directly against those intentions. And also ironic that the Federalists’ etc. goal seems to be a type of dictatorship-monarchy with a genuine madman as the Head.
If the FF intended the Constitution to be liberally amended, they made it hard to carry out that intent.
The separation of powers framework and the impeachment clause are evidence the FF were aware of the dangers of corruption and self-dealing among high officials, members of Congress, and the judiciary. We had a long discussion on an earlier thread about that, involving the contemporaneous but separate impeachments in England of Robert Clive and Warren Hastings over their conduct in India.
Yeah, the Founders did not expect wholesale and frequent changes to be made, and that is crystal clear in the only process provided.
They were smart in that regard, lest the foundation of the American enterprise be the subject of transient whims and jackasses. The problem is almost never the document, but the people implementing it, and often in bad faith. But any document is subject to that.
The problem is not the Constitution, but us as a collective.
So far I only see one mistake in the amendments we’ve put in, and that was corrected later. (Trying to legislate morals and personal choices is going to fail.)
Yes. Amending the Constitution, while provided for, was never meant to be easy. Nor should it be.
I have never understood why so many people think the knee jerk reaction to everything is alteration of the Constitution. It is not.
Physicians of American humanity, heal thyselves.
For instance, instead of amending the Constitution, the Congress could enact legislation stating something like “No person who enters into a joint defense agreement with the POTUS shall be eligible to receive a pardon from that POTUS.”
That law would not be Constitutional.
Because of unequal protection under the law?
No, because the parson power is effectively plenary and solely under Article II. Congress has no role in it, and cannot preemptively restrict it.
If Congress feels that a President has abused his use of pardon power, they can impeach and/or remove him, but they cannot affect the power itself, and any attempt to do so would be plainly unconstitutional.
And the same goes for the Article III courts branch, they have no jurisdiction to limit or reverse a Presidential use of the pardon power.
Alright. I get it. Restricting the eligibility of pardon recipients unconstitutionally restricts the plenary power of the president to grant the pardon.
Yes, exactly.
I wonder if Congress could limit/eliminate the possibility of government employees [OUR employees] to sign any kind of NDA with respect to their work.
Is Trump the first to try anything like this?
“Maybe”, not sure. More importantly, I have a hard time seeing it as necessary. An NDA covering a governmental employee as to official work for the government is almost certainly void as against public policy anyway. In the current miasma, I would think NDA’s from the campaign might stand up, but not any after inauguration for people in the administration. I don’t think this is really a problem, nor do I think JDA’s in general are as pondered earlier.
“An NDA covering a governmental employee as to official work for the government is almost certainly void as against public policy anyway.”
In normal circumstances, as opposed to the one we find ourselves in, I would agree with that , but it’s that “almost” that worries me…
This is rapidly getting too deep for me. Suppose Reich is correct and Trump can’t be pardoned (by himself or future presidents) for the crimes encompassed by the articles of impeachment. What is to stop Trump from pardoning himself, his kin, and Turmp Org for unrelated crimes (money laundering for Russian entities perhaps)?
Rayne asked, ” [B]ut impeachment appears to place the single limit [on the pardon power]. Where and when is that limit placed?”
I’m completely and totally guessing, yet again, that an exercise of the pardon power cannot preclude [i.e. preempt] an exercise of the sole power of impeachment. It is not at all clear to me that an exercise of the sole power of impeachment could preclude or preempt an exercise of the pardon power.
However, since the efficacy of a presidential pardon presumably applies to the recipient’s criminal liability to judgment and punishment, and since the judgment and punishment in cases of impeachment extends no further than to removal and disqualification from office, therefore I can only guess that a case of impeachment cannot preclude nor preempt a presidential pardon for the recipient’s criminal liability to judgment and punishment.
I have no idea whether any of my guesses are true.
These passages were written when it was assumed the Vice President would be from the runner up in the previous Presidential election. This has not been corrected with the subsequent amendments that lend more power to the faction winning the joint President and Vice-Presidential tickets that are now how Presidential elections work.
My interpretations on the two points you have raised, Rayne, would be as follows:
(1) The reference to “Judgment” refers to the possibility of the criminal trial, conviction, judgment (i.e. verdict and/or sentence) and punishment for someone who has been convicted in an impeachment proceeding. The context here is that in the English tradition, an impeachment in the House of Commons followed by trial in the House of Lords was or could be itself a criminal proceeding or “trial by one’s peers” with punishments sometimes up to and including the death penalty possible. So the Founders made it clear that impeachment and conviction in the Senate would not carry criminal consequences, but also would not preclude subsequent criminal proceedings which might involve the same acts or transactions which had been grounds for impeachment and removal. Thus impeachment and removal, followed by a criminal conviction and punishment, would not constitute double jeopardy or the like.
(2) Respectfully differing with Robert Reich, I read the restriction on pardon power as meaning that simply that the President cannot use this power to set aside an impeachment and verdict of conviction by the Senate and reinstate to office someone who has been thus removed, or to set aside the Senate’s optional disqualification of a convicted official to hold any future office with the federal government.
In other words, if President Nixon had not resigned but had been impeached by the House (based on one or more of the three House Judiciary Committee articles) and convicted by the Senate, President Ford could not have used his pardon power to reinstate Nixon to the White House — or, if the Senate had attached a disqualification for Nixon to hold any future federal office, to nullify this disqualification. However, he could still have pardoned Nixon from future criminal liability for his acts while in office, as he did after Nixon resigned.
I think that is the better interpretation. Impeachment is a civil matter; its consequence is removal from office. The president’s pardon power applies to criminal matters; moreover, the Constitution puts impeachment and conviction explicitly beyond the reach of his pardon power.
Impeachment and conviction have no effect on independent criminal proceedings that might take place afterwards, and which might be based on the conduct leading to impeachment and conviction.
I agree.
C, E-flat, and G walk into a bar.
The bartender says, “Sorry, we don’t serve minors.”
Mitch never reached the age of reason.
Showdown and a slowdown.
Well done, Nancy
Here’s another one:
Q: Why are stacked minor thirds so humiliating?
A: They make you feel diminished.
And always remember, a diminished chord can substitute for either of the dominant sevenths using the tri-tones in the diminished chord. I’ve won a few bets by knowing that.
Close, but not exactly right; a dominant chord built using the notes of a diminished chord (of which there a 4) can be used in lieu of the explicitly written diminished chord (you can then add the related ii-7 or ii-7b5, if you wish). I.e. you add a single note that is a major 3rd below the diminished’s root. But that’s off-topic
Pardon me for suspecting same, but I mean, you folks don’t play rock and roll, yeah? Jazz, mebbe? ;-D
We do. And chords run up the neck off of E and C.
Hmm…
E#, Ab and B# walk into a bar.
“Hey bartender, we’ll have a Diatonic”
Bartender sez: “Normally we don’t serve minors, but youse guys are hard to read”…
(groan)
Regina Spektor – Hallelujah
https://youtu.be/2oa_q6Jnukg
“Sentence First – verdict Afterward.”
There are few impeachment examples to go by, and McConnell and his master are remarkably disdainful of precedent and past practice, so those are valid questions.
In the common law, punishment follows conviction – not merely the prosecution or trial, or, let’s take a break before the jury returns. The scaffold is just outside. The concept is a fundamental restraint on the power of the state. The FF were explicitly devising a government without and in opposition to a monarch, who could once demand forfeiture of land and titles because he said so. The same logic impelled the narrow American definition of treason.
Moreover, the majority on this S.Ct. is enamored of executive authority. I do not see it agreeing to impose consequences on a chief executive (or any other impeached person, such as a Supreme Court justice) before conviction in the Senate.
I think it’s a closer question about when the Senate can begin to try a case of impeachment. Normal process would be for a tribunal to receive actual notice and legal documentation that the House had, in effect, issued its indictment. The precise wording would be essential to the Senate’s work. The text and delivery of it to the Senate would be under the House’s control.
The GOP Senate majority, however, seems intent on issuing its Rube Goldberg version of a blanket pardon to Mr. Trump. So the Senate may have or invent a rule that allows it to proceed based on the House vote. I don’t think the Senate would be on firm legal or political ground, but that would not stop McConnell, nor would it stop a panicked president from insisting that the value of his “brand” required that he be tried and “fully exonerated” in the Senate ASAP.
I think Tribe is correct that Trump was formally and effectively “impeached” as of 18 December 2019, and that’s on him forever. I think that’s separate from what does the Senate need from the House to begin its trial.
https://twitter.com/tribelaw/status/1207839832992604160
Marty Lederman gets into the weeds a little about this in the following thread:
https://twitter.com/marty_lederman/status/1208021541323202562
5:49 AM – 20 Dec 2019
Lederman is engaged in his own academic competition, as is illustrated by his “*not that it matters*” and his long thread with his competing analysis.
It does matters whether Trump is already impeached, although probably not to people shoveling snow and cleaning hospital floors to pay the rent.
If McConnell believed that he were not, he would not already be negotiating terms for holding a Senate trial. In McConnell World, that’s about how to exonerate His Greatness, who is demanding it on pain of holding his breath until his skin turns white.
Yes. Should be interesting, considering McConnell and Trump are said to be at odds about how to go about things:
https://twitter.com/anitakumar01/status/1207991607431184384
3:50 AM – 20 Dec 2019
Links to:
‘Family feud’: Trump still grumbling about witness-free impeachment trial
The president is publicly deferring to Senate Republicans, but privately harboring a desire to create a flashy, testimony-filled trial. [Politico link] 12/20/2019 05:06 AM
I’m looking forward to see how this plays out.
The Don wants his beauty pageant. He wants his piece of the action. He wants to control the extravaganza (and to have an all-access pass to the dressing rooms). He wants to pick the winner. No surprises, just mahveluss ratings.
This is a little askew from the topic, but I think Pelosi’s withholding the articles form the Senate –while it may be legal and clever and sensible if you really want a reasonable Senate trial– is still going to be received poorly by people the Dems hope to win over in the general election, independents. I fear it will look like over-reaching instead of duty toward a fair process. Hope I am wrong.
“[B]y the people the Dems hope to win over?” Both of them are already committed to being non-committal.
A holiday rush-delay won’t be a problem, except for those who would never vote for a Dem anyway. If it drags into the New Year without action on new charges being brought, it will look like insincere opportunism.
It’s a problem if this degenerates into a poker game where cards are kept hidden and selectively revealed one at a time and round after round of bluffing. That is the kind of chaos where McConnell excels.
If she makes a straightforward stand on clearly defined principles of a fair trial — witnesses of the House’s choosing, full debate, etc. — she is in a very strong position.
Do I miss Senator Franken!
When Mitch spoke of the “decline of bipartisanship”, Al quipped, “It was like convicted serial killer and sex offender Jeffrey Dahmer talking about “dinner party etiquette.”
Let’s delay the trial for a few weeks so we can enjoy the two dolts (Mitch and Donnie)
twist in the impeachment tornado.
That humorless weightlifter, Chris Cuomo, gives Joe Biden the ultimate accolade about his debate-night performance: “He was alert the whole time.” Another wag chimed in that he was also aware of his surroundings.
Mayor Pete, though, seemed to think he was at a TED talk, debating the middle distance, especially when he was critiquing the ladies. Too much time counting coins in your wine cave, Pete.
https://twitter.com/rtraister
Nice touch. Proceeds from the sale of Pete’sWineCave t-shirts go to Bernie Sanders’s campaign. https://twitter.com/juliakmarsh
I’m getting confused by the way variations of the word “conviction” is being used or omitted in some of the wording and wondering if some the the vagueness doesn’t have something to do with congress or anyone else not being able to issue indictments OR punishments to a sitting president for criminal offenses, that the responsibility/power of congress is limited to protecting the constitution which can be accomplished by removing from office, and not allowing them to re-enter the arena.
That being said “but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” could simply mean, “the party” is fair game to law enforcement (but not congress) if crimes went beyond those against our constitution were committed. Which loops back and confirms that impeachment is simply a political process.
Makes sense to me to limit politicians to political remedies but what do I know?
If a president is impeached and stays in office IMHO there is no crime he can pardon himself of since it’s all a political act.
I am still a little unclear of Nixon’s pardon but wasn’t it the breaking and entering part of Nixon’s troubles that was pardoned not the fact the house had voted in favor of his impeachment?
If I remember correctly, the pardon of Nixon was to protect him from a federal charge of obstruction of justice.
yes that sounds right, I guess my ponder was what they mean by “Article II, section 2 of the Constitution gives a president the power to pardon anyone who has been convicted of offenses against the United States, with one exception: “In Cases of Impeachment.”
The articles to impeach Nixon were approved, but since he left office before the house voted I would think the stronger argument would be that Nixon was never actually impeached and therefore could be pardoned.
That’s right, Nixon was not impeached. He resigned beforehand, knowing his impeachment and probably conviction and forced removal from office were inevitable.
Had he been impeached, no presidential pardon could have reached it or a subsequent conviction and removal from office.
Regardless of any impeachment, Nixon could have been and was (controversially) pardoned for any and all crimes he committed or might have committed as of the date of his pardon from Ford. That would have included any that might have served as the foundation for an article of impeachment.
Ford issued Nixon a blanket pardon. It covered federal crimes he committed or could have committed up to the date of the pardon. It effectively precluded further investigation of his crimes, which appears to have been the point, as their documentation might have harmed the GOP as much as Nixon.
Ford claimed that he pardoned Nixon “for the good of the country,” and not in exchange for his prompt resignation or to protect Nixon and the GOP.
Footnote 1,091 of the Mueller Report:
“A possible remedy through impeachment for abuses of power would not substitute for potential criminal liability after a President leaves office. Impeachment would remove a President from office, but would not address the underlying culpability of the conduct or serve the usual purposes of the criminal law. Indeed, the Impeachment Judgment Clause recognizes that criminal law plays an independent role in addressing an official’s conduct, distinct from the political remedy of impeachment.”
Makes me smile that the Mueller team thought to add it.
What was McConnell thinking, reading the quiet parts out loud on national television? Was there any strategic value to it? If so, it isn’t obvious. In fact, it could turn out to be a huge mistake.
When it comes to witnesses for the trial, Trump is on Schumer’s side; not McConnell’s. He reportedly wants a big show trial, so I suspect Schumer would gladly grant some witnesses that Republicans want if it means Bolton, Pompeo, and Mulvaney testify. It’s pretty clear Donald did what he’s accused of doing, so just one piece of testimony or one document could blow the whole thing wide open. I wouldn’t hold my breath waiting for him to use it properly, but Schumer does have some leverage here. And it’s still a long shot, but one seemingly small snowflake could trigger the avalanche that takes Donald down with it.
Mitch is glorying in being the rooster on top of the dungheap he’s made of the Senate over the last four years.
Charles Pierce writes about having been hit by a car:
I’m a Lucky Motherf*cker. We All Are.
https://www.esquire.com/news-politics/politics/a30301196/charles-pierce-accident-dispatch/
DEC 21, 2019
Nancy Pelosi should not submit the Articles of Impeachment to the Senate UNTIL AFTER THE 2020 PRESIDENTIAL ELECTION!
Here is why…
My understanding is that there is no mandatory timeline that the House has to adhere to in forwarding the Articles of Impeachment to the Senate. Without the Articles, the Senate cannot have a trial. I am urgently requesting that Nancy Pelosi hold the Articles and not send them to the Senate for trial until AFTER the 2020 Presidential election.
In this way Nancy Pelosi can use the exact same logic that Mitch McConnell used when he would not allow a vote on President Obama’s candidate for the Supreme Court, Merrick Garland. The current political year is “too hot” for a fair trial and the election is happening very soon… so let the American people decide what the Senate should look like after the election… and have the trial after the election.
At the same time the House gains another 11 months to investigate Trump, perhaps find even more evidence of his wrong doing, get more favorable court rulings that allow them to obtain key documents and hear testimony from people that have been subpoenaed but have not shown up to testify… and even get past the Supreme Court decision on releasing Trump’s Tax Returns expected in June of 2020.
This also gives the House the ability to add additional Articles of Impeachment if more evidence of Russian collusion, emoluments violations, misuse of Presidential inaugural funds and Trump Foundation funds, additional acts of obstruction of justice during the Mueller investigation, additional campaign finance violations or other high crimes or misdemeanors warrant doing so.
It also gives the American people another 11 months to understand and digest all of the evidence showing just how corrupt this President and his administration are.
Let President Trump, Mitch McConnell, Lindsey Graham and all of the other Republicans rant & rave & stew all they want. Democrats can campaign on this. They can stress the importance of making sure the Republicans in Congress that are willing to violate their oaths of office just to keep Trump in office so they can keep their jobs do NOT GET RE-ELECTED.
Hopefully this will result in Democratic majorities in both the House and Senate. Then the Senate can hold a truly fair trial after the election instead of allowing Mitch McConnell to set the rules for a sham trial in partnership with the White House, the President and the President’s counsel… pre-determined in advance to have the foregone conclusion of keeping Trump in office. It is preposterous to allow a trial to proceed where the jurors have worked hand-in-hand with the Defendant on the trial rules and strategy.
I would hate to see Nancy Pelosi come back in a few weeks after the break and be deceived by promises that Mitch McConnell is willing to make now… and break as soon as the Senate receives the Articles.
Once he receives those Articles, he can, and will, simply say he changed his mind, even after he agrees to terms acceptable to Nancy Pelosi. That is what he is eminently capable of doing… and that is exactly what he will do once he gains control. The Dems need to make certain he does not get control of the Articles before the 2020 Presidential election is over.