Master James Silkenat

Master James Silkenat is a Past President of the American Bar Association. He is a partner in the New York office of Sullivan & Worcester, is a former Legal Counsel at the World Bank Group’s International Finance Corporation and a member of the American Law Institute. He is a member of the Board of Directors of the World Justice Project.

The impeachment of President Donald Trump by the U.S. House of Representatives in December 2019 focused many Americans and others around the world on the complexities of a peculiar feature of the American Constitution: the impeachment of a high government official, specifically the President of the United States.

How do you remove a U.S. President from office? For what reasons and under what procedures can and should this be done? In these strained times on the American political scene, these questions seem to engage almost everyone, either pro or con, concerning the current incumbent. A troubling side issue is how to analyse the various aspects of impeachment without giving such analysis a personal political slant. The answer, unfortunately, is that basically you cannot. Nevertheless, this article will make a good-faith, non-partisan effort to discuss, for a non-U.S. legal audience, the legal, historical, political and procedural aspects of impeachment as they exist today in the United States.

For most Americans of a certain age, the notion of impeachment involves three U.S. Presidents: Richard Nixon in 1974; Bill Clinton in 1998/ 1999; and now Donald Trump in 2019/20.

President Nixon, while facing almost certain impeachment and conviction by Congress, resigned from office before impeachment could be approved by the U.S. House of Representatives. President Clinton was impeached by the House, but was not convicted by the Senate, and thus was not removed from office. The same (impeachment by the House and lack of conviction by the Senate) has now been the result for President Trump. The only other impeachment of a U.S. President was that of President Andrew Johnson in 1868. He was impeached by the House, but found not guilty by the Senate.

The term ‘impeachment’ is used several times in the U.S. Constitution. Article I, Section 2, Clause 5, provides that: ‘The House of Representatives… shall have the sole Power of Impeachment’.

In Article I, Section 3, Clause 6, the Constitution states that the Senate ‘shall have the sole Power to try all Impeachments’. Conviction in such trials requires the concurrence of two thirds of the Senate and results in removal from office.

And, finally, Article II, Section 4, of the Constitution provides that ‘The President… shall be removed from office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanours’.

The above language, while central to any analysis of Constitutional requirements, is not without controversy. There is no definition in the Constitution of ‘high Crimes and Misdemeanours’. Arguments on the content of these words have been voluminous, but have often centred on what they meant to the drafters of the Constitution and under English common law before that.

The term is problematic because it might, on its face, be taken to refer only to offences covered by criminal laws. That, however, has not been the history of the wording and is not accepted by most Constitutional scholars today. Both in U.S and English practice there has always been a perceived need to allow some flexibility in how the term is applied, since the varieties of potential misconduct by a government official are so numerous and complex. Essentially, the term has come to mean (although always contested by counsel for the person being impeached) that a government officer has somehow exceeded the powers of his or her office (particularly vis-a-vis another branch of government) or used the power of the office for personal gain. There is general recognition that the process is unavoidably both legal and political in nature.

Another potential defence to impeachment has been the argument that Congress should leave the fate of a President to the American voter in the next Presidential election. This would of course essentially eliminate the process of impeachment contained in the Constitution (and the reasons for its inclusion by America’s founding fathers) and be singularly inappropriate when the conduct being punished could result in a Presidential election itself being tarnished or subverted.

In Article I, Section 3, Clause 6, the Constitution states that the Senate ‘shall have the sole Power to try all Impeachments’. Conviction in such trials requires the concurrence of two thirds of the Senate and results in removal from office.

Article II, Section 4, of the Constitution provides that ‘The President… shall be removed from office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanours’.

In the impeachment proceedings against President Trump, there were two Articles of Impeachment brought to the House of Representatives, one dealing with ‘Abuse of Power’ and one dealing with ‘Obstruction of Congress’. Both Articles of Impeachment arose out of the charge that President Trump had sought political interference in the upcoming (2020) U.S. Presidential election in order to help his re-election efforts and then blocked any inquiry by Congress into his actions. Specifically, the House charged that President Trump had withheld military aid to Ukraine unless Ukrainian President Zelensky announced an investigation into one of Trump’s likely rivals for the Presidency, former U.S. Vice President Joe Biden (the ’quid pro quo’ that was repeatedly referred to in the investigation).

The drafting of the Articles of Impeachment by the House of Representatives was preceded by hearings by the House’s Judiciary Committee. During these hearings, numerous persons were called to testify concerning their knowledge of the facts surrounding President Trump and his actions concerning Ukraine. The President and his legal team declined to participate in the hearings or offer any defence. Further, they sought to prevent anyone in the Executive Branch from testifying. The Judiciary Committee forwarded to the full House its recommendations and a 658 page report on its findings.

In a vote on Wednesday 18 December 2019, the House of Representatives by a vote of 230 to 197 approved Impeachment Article I and by a vote of 229 to 198 approved Impeachment Article II. Both votes were almost completely along party lines, with no Republicans in the House voting in favour of either Article and only two or three Democrats voting against.

The trial of the President under the approved Articles of Impeachment then moved to the U.S. Senate, where a two thirds vote would be required for conviction and removal from office. Given the Republican majority in the Senate, this would be a difficult hurdle to clear. This was especially true since, although the Senators were required by ‘oath and affirmation’ to be impartial, several Republican Senators announced in advance that they would not be neutral. Senate Judiciary Committee Chairman Lindsey Graham, for example, noted, that ‘I’m not trying to pretend to be a fair juror here’. Further, Senate Majority Leader Mitch McConnell noted publicly that he was coordinating the Senate trial with the White House.

…Congress should leave the fate of a President to the American voter in the next Presidential election.

Adding to the drama of the Senate trial was whether witnesses would be allowed to testify in the trial. Senate Democrats requested that a number of senior Administration officials be called to testify concerning their knowledge of events cited in the Impeachment Articles. Such request for witness participation was rejected by Republican Senate Majority Leader McConnell, even though there appeared to be additional evidence that the House had not had a chance to consider.

The trial in the Senate was presided over by U.S. Supreme Court Chief Justice, Master John Roberts (also an Honorary Bencher of the Middle Temple), as required by the Constitution. The scope of the Chief Justice’s role in the impeachment trial is not discussed in detail in the Constitution, and Chief Justices, in this and in the earlier Clinton impeachment trial, have not played an expansive role in the proceedings.

On Wednesday 5 February 2020, the Senate rejected the Articles of Impeachment by a vote of 48 to 52 on Article I and 47 to 53 on Article II. All Democrats in the Senate voted for conviction on both Articles. Both Independents in the Senate voted to convict on both counts. And all Republicans, but one, voted not to convict. That one Republican was Senator Mitt Romney, the Republican candidate for President in 2012, who voted to convict President Trump on the first Article of Impeachment, thereby becoming the first Senator in U.S. history to vote to convict a President of his own party.

Although almost everyone in the United States, including this writer, has strong views on the subject, it may be too early to know what lessons are to be learned from the impeachment of President Trump and the Senate’s decision not to remove him from office. That is a topic that certainly merits serious attention and discussion, but perhaps not yet in these pages. With regard to the Constitutional provision of impeachment, it seems clear to this writer that it was intended to be, and should be, used very sparingly. But it is even clearer that impeachment remains especially important to America’s civic health and ought not to be so constrained by political considerations that it is unavailable when critically needed. The drafters of the U.S. Constitution believed an officeholder’s tyrannical conduct could so endanger the nation that addressing it could not await the next election. The concept had merit then; it still does.