Is the Senate required to wait for the physical articles of impeachment to move forward?

[G.T.]

I read about what the Constitution said about the impeachment process. It did not outline what happens if the articles of impeachment are not sent to the Senate. It did mention that two (?) managers from the House will assist in the Senate Trial. But what if they didn't send them or the articles.

The Constitution clearly states that the articles of impeachment are to be sent to the Senate. No question. There is a point where the Supreme Court can be involved, but it's murky.

I will try to find what I read so you can determine what it means in this situation.

Think of it this way. If they don’t send it to the Senate and yet declare him guilty without a trial that is against the law, just as it would be for anyone. It’s like he is indicted but then don’t allow him due process. That would be thrown out of any court of law here. At least that is my understanding.

The jurors, after saying on national TV theyre going to rig the trial, would be thrown out of any court of law.

 

[depotoo]

I read about what the Constitution said about the impeachment process. It did not outline what happens if the articles of impeachment are not sent to the Senate. It did mention that two (?) managers from the House will assist in the Senate Trial. But what if they didn't send them or the articles.

The Constitution clearly states that the articles of impeachment are to be sent to the Senate. No question. There is a point where the Supreme Court can be involved, but it's murky.

I will try to find what I read so you can determine what it means in this situation.

Presidential Impeachment: The Legal Standard and Procedure - FindLaw

The involuntary removal of a sitting President of the United States has never occurred in our history. The only legal way such can be accomplished is by the impeachment process. This article discusses the legal standard to be properly applied by members of the U.S. House of Representatives when voting for or against Articles of Impeachment, and members of the U.S. Senate when voting whether to convict and remove from office a President of the U.S., as well as the procedure to be followed.

Article I § 2 of the United States Constitution gives the House of Representatives the sole power to impeach (make formal charges against) and Article I § 3 gives the Senate the sole power to try impeachments. Article II § 4 of the Constitution provides as follows:

"The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors."

Thus, the operative legal standard to apply to an impeachment of a sitting President is "treason, bribery, or other high crimes and misdemeanors." There is substantial difference of opinion over the interpretation of these words.

There are essentially four schools of thought concerning the meaning of these words, although there are innumerable subsets within those four categories.

Congressional Interpretation

The first general school of thought is that the standard enunciated by the Constitution is subject entirely to whatever interpretation Congress collectively wishes to make:

"What, then, is an impeachable offense? The only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office..." Congressman Gerald Ford, 116 Cong. Rec. H.3113-3114 (April 15, 1970).

This view has been rejected by most legal scholars because it would have the effect of having the President serve at the pleasure of Congress. However there are some, particularly in Congress, who hold this opinion.

An Indictable Crime

The second view is that the Constitutional standard makes it necessary for a President to have committed an indictable crime in order to be subject to impeachment and removal from office. This view was adopted by many Republicans during the impeachment investigation of President Richard M. Nixon. The proponents of this view point to the tone of the language of Article II § 4 itself, which seems to be speaking in criminal law terms.

There are other places in the Constitution which seem to support this interpretation, as well. For example, Article III § 2 (3) provides that "the trial of all crimes, except in cases of impeachment, shall be by jury." Clearly the implication of this sentence from the Constitution is that impeachment is being treated as a criminal offense, ergo, impeachment requires a criminal offense to have been committed.

Article II § 2 (1) authorizes the President to grant pardons "for offenses against the United States, except in cases of
impeachment." This sentence implies that the Framers must have thought impeachment, and the acts which would support impeachment, to be criminal in nature.

In the past, England had used impeachment of the King's ministers as a means of controlling policy (Parliament could not get rid of the King, but could get rid of his ministers who carried out acts Parliament believed to be against the best interest of the country). However, in English impeachments, once convicted that person was not only removed from office but was also punished (usually by execution).

Misdemeanor

The third approach is that an indictable crime is not required to impeach and remove a President. The proponents of this view focus on the word "misdemeanor" which did not have a specific criminal connotation to it at the time the Constitution was ratified. This interpretation is somewhat belied by details of the debate the Framers had in arriving at the specific language to be used for the impeachment standard.

Initially the standard was to be "malpractice or neglect of duty." This was removed and replaced with "treason, bribery, or corruption." The word "corruption" was then eliminated. On the floor during debate the suggestion was made to add the term "maladministration." This was rejected as being too vague and the phrase "high crimes and misdemeanors" was adopted in its place. There are many legal scholars who believe this lesser standard is the correct one, however.

Relating to the President's Official Duties

The fourth view is that an indictable crime is not required, but that the impeachable act or acts done by the President must in some way relate to his official duties. The bad act may or may not be a crime but it would be more serious than simply "maladministration." This view is buttressed in part by an analysis of the entire phrase "high crimes or misdemeanors" which seems to be a term of art speaking to a political connection for the bad act or acts. In order to impeach it would not be necessary for the act to be a crime, but not all crimes would be impeachable offenses.

Some hold the opinion that Congress could pass laws by declaring what constitutes "high crimes and misdemeanors" which would, in effect, be a list of impeachable offenses. That has never happened. (Query: If Congress passed such a code of impeachable offenses, could that be applied retroactively, much as a definition, to a sitting President? Would such an application be viewed as an ex post facto law? Also, would such a statue be an attempt to amend the Constitution, without following the amendment procedure?)

How Congress Sets the Rules for Impeachment

Both the U.S. House of Representatives and the U.S. Senate have the right to make their own rules governing their procedure, and to change those rules. Under current rules, the actual impeachment inquiry begins in the Judiciary Committee of the House of Representatives. That Committee holds hearings, takes evidence, and hears testimony of witnesses concerning matters relevant to the inquiry. Typically, as occurred in the case of President Nixon, there will also be a Minority Counsel who serves the interest of the party not controlling Congress.

Witnesses are interrogated by the Committee Counsel, the Minority Counsel, and each of the members of the House Judiciary Committee. The Committee formulates Articles of Impeachment which could contain multiple counts. The Committee votes on the Articles of Impeachment and the results of the vote are reported to the House as a whole. The matter is then referred to the whole House which debates the matter and votes on the Articles of Impeachment, which may or may not be changed. If the Articles of Impeachment are approved, the matter is sent to the Senate for trial.

Impeachment Trials

The trial in the Senate is handled by "Managers" from the House of Representatives, with the assistance of attorneys employed for the prosecution of the impeachment case. The Senate sits as a jury. (In the past the Senate has heard judicial impeachments by appointing a subcommittee especially for that purpose, which then reports its findings to the Senate as a whole.) The Senate would then debate the matter, and vote, each individual Senator voting whether to convict the President and remove him from office, or against conviction. If more than two-thirds of the Senators present vote to convict, the President would be removed from office. Thus a Senator who abstained from voting but was present would in effect be voting against conviction. (Article I § 3).

If the President is convicted by a vote of the Senate, and removed from office, yet another grave constitutional crisis is then presented. Does the President have a right of appeal, and if so, to whom? Article I § 3 of the Constitution states:

"The Senate shall have the sole Power to try all Impeachments..."

For many years, the conventional view was that the forgoing section of the Constitution meant that the Senate was the final arbiter when it came to impeachments (at least as to Federal Judges) and that what constituted an impeachable offense would be unreviewable. See Ritter v. U.S., 84 Ct. Cl. 293 (1936) cert denied 300 U.S. 668 (1937).

However, if there is an impeachment standard (and there can be no doubt that there is as the Constitution specifically establishes one -- "treason, bribery or other high crimes and misdemeanors"), then it is only logical that it is possible for that standard not to be correctly followed. If such is the case, who is responsible for saying that the standard was not correctly followed? There can only be one answer -- the courts. As there has never been a successful impeachment and removal of a sitting President, there is no authority "on all fours" for the proposition either way. However, there is authority which would shed some light on this complicated question.

The Role of the U.S. Supreme Court

The Supreme Court of the United States has decided that it should not review judicial impeachments, using the "political question" doctrine to sidestep the issue. Walter Nixon v. United States, 506 U.S. 224 (1993). In the Walter Nixon case, Judge Nixon attacked the rule of the Senate allowing a subcommittee to hear evidence, rather than the Senate as a whole, in his judicial impeachment. The opinion of the Supreme Court declined to review Judge Nixon's case, and in dicta is not binding on future Courts.

Even though the Court was unanimous in concluding not to review Judge Nixon's removal from office, there were multiple concurring opinions. The concurring opinion of Justice White indicates an unwillingness, on his part at least, to conclude in advance that a Presidential impeachment would be unreviewable. See Walter Nixon v. United States, 506 U.S. at 244. As stated by Justice White at footnote 3, page 247 of the Walter Nixon case:

"Finally, as applied to the special case of the President, the majority's argument merely points out that, were the Senate to convict the President without any kind of trial, a Constitutional crisis might well result. It hardly follows that the Court ought to refrain from upholding the Constitution in all impeachment cases. Nor does it follow that, in cases of Presidential impeachment, the Justices ought to abandon their constitutional responsibilities because the Senate has precipitated a crisis."

This view is echoed by Justice Souter in his concurring opinion in the same case:

"If the Senate were to act in a manner seriously threatening the integrity of its results...judicial interference might well be appropriate." Walter Nixon v. United States, 506 U.S. at 253.

Interesting article. The last paragraph seems to apply here. The majority leader of the senate as well as several other prominent senators have already said they will not consider any evidence presented in the trial. They are, in fact, coordinating with White House council. That is more than a simple threat to the integrity of the results. The courts should intervene and require a fair trial.

Yupp.

When you outright declare you're going to be unfair...there's nothing to debate. It's also pretty shameful that that shit flies, for anyone.

And the house was fair? Get out of here! Lol

 

[M14 Shooter]

I read about what the Constitution said about the impeachment process. It did not outline what happens if the articles of impeachment are not sent to the Senate. It did mention that two (?) managers from the House will assist in the Senate Trial. But what if they didn't send them or the articles.

The Constitution clearly states that the articles of impeachment are to be sent to the Senate. No question. There is a point where the Supreme Court can be involved, but it's murky.

I will try to find what I read so you can determine what it means in this situation.

Think of it this way. If they don’t send it to the Senate and yet declare him guilty without a trial that is against the law, just as it would be for anyone. It’s like he is indicted but then don’t allow him due process. That would be thrown out of any court of law here. At least that is my understanding.

The jurors, after saying on national TV theyre going to rig the trial, would be thrown out of any court of law.

Impeachment, and the trial that follows, isn't a court of law, its a political process.

 

[BULLDOG]

I read about what the Constitution said about the impeachment process. It did not outline what happens if the articles of impeachment are not sent to the Senate. It did mention that two (?) managers from the House will assist in the Senate Trial. But what if they didn't send them or the articles.

The Constitution clearly states that the articles of impeachment are to be sent to the Senate. No question. There is a point where the Supreme Court can be involved, but it's murky.

I will try to find what I read so you can determine what it means in this situation.

Think of it this way. If they don’t send it to the Senate and yet declare him guilty without a trial that is against the law, just as it would be for anyone. It’s like he is indicted but then don’t allow him due process. That would be thrown out of any court of law here. At least that is my understanding.

Due process would include a fair evaluation of all evidence presented at trial. The right wing already announced their verdict before the trial even started, or any evidence has been presented. McConnell and republican senators are the ones denying due process.

 

[Jackson]

I read about what the Constitution said about the impeachment process. It did not outline what happens if the articles of impeachment are not sent to the Senate. It did mention that two (?) managers from the House will assist in the Senate Trial. But what if they didn't send them or the articles.

The Constitution clearly states that the articles of impeachment are to be sent to the Senate. No question. There is a point where the Supreme Court can be involved, but it's murky.

I will try to find what I read so you can determine what it means in this situation.

Think of it this way. If they don’t send it to the Senate and yet declare him guilty without a trial that is against the law, just as it would be for anyone. It’s like he is indicted but then don’t allow him due process. That would be thrown out of any court of law here. At least that is my understanding.

Due process would include a fair evaluation of all evidence presented at trial. The right wing already announced their verdict before the trial even started, or any evidence has been presented. McConnell and republican senators are the ones denying due process.

You do recall that Impeachment was called for on the day Trump took office, right? Just who denied due process?

 

[G.T.]

I read about what the Constitution said about the impeachment process. It did not outline what happens if the articles of impeachment are not sent to the Senate. It did mention that two (?) managers from the House will assist in the Senate Trial. But what if they didn't send them or the articles.

The Constitution clearly states that the articles of impeachment are to be sent to the Senate. No question. There is a point where the Supreme Court can be involved, but it's murky.

I will try to find what I read so you can determine what it means in this situation.

Presidential Impeachment: The Legal Standard and Procedure - FindLaw

The involuntary removal of a sitting President of the United States has never occurred in our history. The only legal way such can be accomplished is by the impeachment process. This article discusses the legal standard to be properly applied by members of the U.S. House of Representatives when voting for or against Articles of Impeachment, and members of the U.S. Senate when voting whether to convict and remove from office a President of the U.S., as well as the procedure to be followed.

Article I § 2 of the United States Constitution gives the House of Representatives the sole power to impeach (make formal charges against) and Article I § 3 gives the Senate the sole power to try impeachments. Article II § 4 of the Constitution provides as follows:

"The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors."

Thus, the operative legal standard to apply to an impeachment of a sitting President is "treason, bribery, or other high crimes and misdemeanors." There is substantial difference of opinion over the interpretation of these words.

There are essentially four schools of thought concerning the meaning of these words, although there are innumerable subsets within those four categories.

Congressional Interpretation

The first general school of thought is that the standard enunciated by the Constitution is subject entirely to whatever interpretation Congress collectively wishes to make:

"What, then, is an impeachable offense? The only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office..." Congressman Gerald Ford, 116 Cong. Rec. H.3113-3114 (April 15, 1970).

This view has been rejected by most legal scholars because it would have the effect of having the President serve at the pleasure of Congress. However there are some, particularly in Congress, who hold this opinion.

An Indictable Crime

The second view is that the Constitutional standard makes it necessary for a President to have committed an indictable crime in order to be subject to impeachment and removal from office. This view was adopted by many Republicans during the impeachment investigation of President Richard M. Nixon. The proponents of this view point to the tone of the language of Article II § 4 itself, which seems to be speaking in criminal law terms.

There are other places in the Constitution which seem to support this interpretation, as well. For example, Article III § 2 (3) provides that "the trial of all crimes, except in cases of impeachment, shall be by jury." Clearly the implication of this sentence from the Constitution is that impeachment is being treated as a criminal offense, ergo, impeachment requires a criminal offense to have been committed.

Article II § 2 (1) authorizes the President to grant pardons "for offenses against the United States, except in cases of
impeachment." This sentence implies that the Framers must have thought impeachment, and the acts which would support impeachment, to be criminal in nature.

In the past, England had used impeachment of the King's ministers as a means of controlling policy (Parliament could not get rid of the King, but could get rid of his ministers who carried out acts Parliament believed to be against the best interest of the country). However, in English impeachments, once convicted that person was not only removed from office but was also punished (usually by execution).

Misdemeanor

The third approach is that an indictable crime is not required to impeach and remove a President. The proponents of this view focus on the word "misdemeanor" which did not have a specific criminal connotation to it at the time the Constitution was ratified. This interpretation is somewhat belied by details of the debate the Framers had in arriving at the specific language to be used for the impeachment standard.

Initially the standard was to be "malpractice or neglect of duty." This was removed and replaced with "treason, bribery, or corruption." The word "corruption" was then eliminated. On the floor during debate the suggestion was made to add the term "maladministration." This was rejected as being too vague and the phrase "high crimes and misdemeanors" was adopted in its place. There are many legal scholars who believe this lesser standard is the correct one, however.

Relating to the President's Official Duties

The fourth view is that an indictable crime is not required, but that the impeachable act or acts done by the President must in some way relate to his official duties. The bad act may or may not be a crime but it would be more serious than simply "maladministration." This view is buttressed in part by an analysis of the entire phrase "high crimes or misdemeanors" which seems to be a term of art speaking to a political connection for the bad act or acts. In order to impeach it would not be necessary for the act to be a crime, but not all crimes would be impeachable offenses.

Some hold the opinion that Congress could pass laws by declaring what constitutes "high crimes and misdemeanors" which would, in effect, be a list of impeachable offenses. That has never happened. (Query: If Congress passed such a code of impeachable offenses, could that be applied retroactively, much as a definition, to a sitting President? Would such an application be viewed as an ex post facto law? Also, would such a statue be an attempt to amend the Constitution, without following the amendment procedure?)

How Congress Sets the Rules for Impeachment

Both the U.S. House of Representatives and the U.S. Senate have the right to make their own rules governing their procedure, and to change those rules. Under current rules, the actual impeachment inquiry begins in the Judiciary Committee of the House of Representatives. That Committee holds hearings, takes evidence, and hears testimony of witnesses concerning matters relevant to the inquiry. Typically, as occurred in the case of President Nixon, there will also be a Minority Counsel who serves the interest of the party not controlling Congress.

Witnesses are interrogated by the Committee Counsel, the Minority Counsel, and each of the members of the House Judiciary Committee. The Committee formulates Articles of Impeachment which could contain multiple counts. The Committee votes on the Articles of Impeachment and the results of the vote are reported to the House as a whole. The matter is then referred to the whole House which debates the matter and votes on the Articles of Impeachment, which may or may not be changed. If the Articles of Impeachment are approved, the matter is sent to the Senate for trial.

Impeachment Trials

The trial in the Senate is handled by "Managers" from the House of Representatives, with the assistance of attorneys employed for the prosecution of the impeachment case. The Senate sits as a jury. (In the past the Senate has heard judicial impeachments by appointing a subcommittee especially for that purpose, which then reports its findings to the Senate as a whole.) The Senate would then debate the matter, and vote, each individual Senator voting whether to convict the President and remove him from office, or against conviction. If more than two-thirds of the Senators present vote to convict, the President would be removed from office. Thus a Senator who abstained from voting but was present would in effect be voting against conviction. (Article I § 3).

If the President is convicted by a vote of the Senate, and removed from office, yet another grave constitutional crisis is then presented. Does the President have a right of appeal, and if so, to whom? Article I § 3 of the Constitution states:

"The Senate shall have the sole Power to try all Impeachments..."

For many years, the conventional view was that the forgoing section of the Constitution meant that the Senate was the final arbiter when it came to impeachments (at least as to Federal Judges) and that what constituted an impeachable offense would be unreviewable. See Ritter v. U.S., 84 Ct. Cl. 293 (1936) cert denied 300 U.S. 668 (1937).

However, if there is an impeachment standard (and there can be no doubt that there is as the Constitution specifically establishes one -- "treason, bribery or other high crimes and misdemeanors"), then it is only logical that it is possible for that standard not to be correctly followed. If such is the case, who is responsible for saying that the standard was not correctly followed? There can only be one answer -- the courts. As there has never been a successful impeachment and removal of a sitting President, there is no authority "on all fours" for the proposition either way. However, there is authority which would shed some light on this complicated question.

The Role of the U.S. Supreme Court

The Supreme Court of the United States has decided that it should not review judicial impeachments, using the "political question" doctrine to sidestep the issue. Walter Nixon v. United States, 506 U.S. 224 (1993). In the Walter Nixon case, Judge Nixon attacked the rule of the Senate allowing a subcommittee to hear evidence, rather than the Senate as a whole, in his judicial impeachment. The opinion of the Supreme Court declined to review Judge Nixon's case, and in dicta is not binding on future Courts.

Even though the Court was unanimous in concluding not to review Judge Nixon's removal from office, there were multiple concurring opinions. The concurring opinion of Justice White indicates an unwillingness, on his part at least, to conclude in advance that a Presidential impeachment would be unreviewable. See Walter Nixon v. United States, 506 U.S. at 244. As stated by Justice White at footnote 3, page 247 of the Walter Nixon case:

"Finally, as applied to the special case of the President, the majority's argument merely points out that, were the Senate to convict the President without any kind of trial, a Constitutional crisis might well result. It hardly follows that the Court ought to refrain from upholding the Constitution in all impeachment cases. Nor does it follow that, in cases of Presidential impeachment, the Justices ought to abandon their constitutional responsibilities because the Senate has precipitated a crisis."

This view is echoed by Justice Souter in his concurring opinion in the same case:

"If the Senate were to act in a manner seriously threatening the integrity of its results...judicial interference might well be appropriate." Walter Nixon v. United States, 506 U.S. at 253.

Interesting article. The last paragraph seems to apply here. The majority leader of the senate as well as several other prominent senators have already said they will not consider any evidence presented in the trial. They are, in fact, coordinating with White House council. That is more than a simple threat to the integrity of the results. The courts should intervene and require a fair trial.

Yupp.

When you outright declare you're going to be unfair...there's nothing to debate. It's also pretty shameful that that shit flies, for anyone.

And the house was fair? Get out of here! Lol

There's an argument for and against the House having been fair - and that the arguments can even be made...on a partisan basis or other...is at least on the table whereas when the Senate says "hey we are throwing the trial" outright, and there's NO argument...we have no choice but to disallow that bullshit as fair minded human beings. But I do understand that politics makes y'all emotional and less fair-minded. Sorry not sorry.

 

[BULLDOG]

I read about what the Constitution said about the impeachment process. It did not outline what happens if the articles of impeachment are not sent to the Senate. It did mention that two (?) managers from the House will assist in the Senate Trial. But what if they didn't send them or the articles.

The Constitution clearly states that the articles of impeachment are to be sent to the Senate. No question. There is a point where the Supreme Court can be involved, but it's murky.

I will try to find what I read so you can determine what it means in this situation.

Think of it this way. If they don’t send it to the Senate and yet declare him guilty without a trial that is against the law, just as it would be for anyone. It’s like he is indicted but then don’t allow him due process. That would be thrown out of any court of law here. At least that is my understanding.

Due process would include a fair evaluation of all evidence presented at trial. The right wing already announced their verdict before the trial even started, or any evidence has been presented. McConnell and republican senators are the ones denying due process.

You do recall that Impeachment was called for on the day Trump took office, right? Just who denied due process?

Impeachment was also discussed on the first day of Obama's presidency, when the right had a meeting to decide they would oppose everything he tried to do. Don't you remember that "one term president" remark by Turtle Boy?

 

[Terri4Trump]

Is the Senate required to wait for the physical articles of impeachment to move forward?

Is this process specifically outlined or are these people just making it up as they go?

Serious question.

No.

 

[NightFox]

He said, the House has impeached. The Senate should just go ahead, set a trial date, and if no one shows
up to prosecute the case, the case is dismissed.

That's an interesting theory, however how do you set a trial date before an indictment is filed?

I'm not sure if this is right, but my interpretation is that there are no indictments in an impeachment, just articles of impeachment replaces the need for indictments.

I think the Dems would not have been able to further this case if indictments were necessary. That would involve distinct crimes with facts to back them up. And there are no distinct crimes or facts presented in this case.

Exactly, the Articles of Impeachment are the indictments (formal accusations).

So, it seems to me, that the Senate setting a trial date before receiving the Articles of Impeachment would be putting the cart before the horse, how can you have trial when no formal accusation has been made?

 

[Dick Foster]

I read about what the Constitution said about the impeachment process. It did not outline what happens if the articles of impeachment are not sent to the Senate. It did mention that two (?) managers from the House will assist in the Senate Trial. But what if they didn't send them or the articles.

The Constitution clearly states that the articles of impeachment are to be sent to the Senate. No question. There is a point where the Supreme Court can be involved, but it's murky.

I will try to find what I read so you can determine what it means in this situation.

Presidential Impeachment: The Legal Standard and Procedure - FindLaw

The involuntary removal of a sitting President of the United States has never occurred in our history. The only legal way such can be accomplished is by the impeachment process. This article discusses the legal standard to be properly applied by members of the U.S. House of Representatives when voting for or against Articles of Impeachment, and members of the U.S. Senate when voting whether to convict and remove from office a President of the U.S., as well as the procedure to be followed.

Article I § 2 of the United States Constitution gives the House of Representatives the sole power to impeach (make formal charges against) and Article I § 3 gives the Senate the sole power to try impeachments. Article II § 4 of the Constitution provides as follows:

"The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors."

Thus, the operative legal standard to apply to an impeachment of a sitting President is "treason, bribery, or other high crimes and misdemeanors." There is substantial difference of opinion over the interpretation of these words.

There are essentially four schools of thought concerning the meaning of these words, although there are innumerable subsets within those four categories.

Congressional Interpretation

The first general school of thought is that the standard enunciated by the Constitution is subject entirely to whatever interpretation Congress collectively wishes to make:

"What, then, is an impeachable offense? The only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office..." Congressman Gerald Ford, 116 Cong. Rec. H.3113-3114 (April 15, 1970).

This view has been rejected by most legal scholars because it would have the effect of having the President serve at the pleasure of Congress. However there are some, particularly in Congress, who hold this opinion.

An Indictable Crime

The second view is that the Constitutional standard makes it necessary for a President to have committed an indictable crime in order to be subject to impeachment and removal from office. This view was adopted by many Republicans during the impeachment investigation of President Richard M. Nixon. The proponents of this view point to the tone of the language of Article II § 4 itself, which seems to be speaking in criminal law terms.

There are other places in the Constitution which seem to support this interpretation, as well. For example, Article III § 2 (3) provides that "the trial of all crimes, except in cases of impeachment, shall be by jury." Clearly the implication of this sentence from the Constitution is that impeachment is being treated as a criminal offense, ergo, impeachment requires a criminal offense to have been committed.

Article II § 2 (1) authorizes the President to grant pardons "for offenses against the United States, except in cases of
impeachment." This sentence implies that the Framers must have thought impeachment, and the acts which would support impeachment, to be criminal in nature.

In the past, England had used impeachment of the King's ministers as a means of controlling policy (Parliament could not get rid of the King, but could get rid of his ministers who carried out acts Parliament believed to be against the best interest of the country). However, in English impeachments, once convicted that person was not only removed from office but was also punished (usually by execution).

Misdemeanor

The third approach is that an indictable crime is not required to impeach and remove a President. The proponents of this view focus on the word "misdemeanor" which did not have a specific criminal connotation to it at the time the Constitution was ratified. This interpretation is somewhat belied by details of the debate the Framers had in arriving at the specific language to be used for the impeachment standard.

Initially the standard was to be "malpractice or neglect of duty." This was removed and replaced with "treason, bribery, or corruption." The word "corruption" was then eliminated. On the floor during debate the suggestion was made to add the term "maladministration." This was rejected as being too vague and the phrase "high crimes and misdemeanors" was adopted in its place. There are many legal scholars who believe this lesser standard is the correct one, however.

Relating to the President's Official Duties

The fourth view is that an indictable crime is not required, but that the impeachable act or acts done by the President must in some way relate to his official duties. The bad act may or may not be a crime but it would be more serious than simply "maladministration." This view is buttressed in part by an analysis of the entire phrase "high crimes or misdemeanors" which seems to be a term of art speaking to a political connection for the bad act or acts. In order to impeach it would not be necessary for the act to be a crime, but not all crimes would be impeachable offenses.

Some hold the opinion that Congress could pass laws by declaring what constitutes "high crimes and misdemeanors" which would, in effect, be a list of impeachable offenses. That has never happened. (Query: If Congress passed such a code of impeachable offenses, could that be applied retroactively, much as a definition, to a sitting President? Would such an application be viewed as an ex post facto law? Also, would such a statue be an attempt to amend the Constitution, without following the amendment procedure?)

How Congress Sets the Rules for Impeachment

Both the U.S. House of Representatives and the U.S. Senate have the right to make their own rules governing their procedure, and to change those rules. Under current rules, the actual impeachment inquiry begins in the Judiciary Committee of the House of Representatives. That Committee holds hearings, takes evidence, and hears testimony of witnesses concerning matters relevant to the inquiry. Typically, as occurred in the case of President Nixon, there will also be a Minority Counsel who serves the interest of the party not controlling Congress.

Witnesses are interrogated by the Committee Counsel, the Minority Counsel, and each of the members of the House Judiciary Committee. The Committee formulates Articles of Impeachment which could contain multiple counts. The Committee votes on the Articles of Impeachment and the results of the vote are reported to the House as a whole. The matter is then referred to the whole House which debates the matter and votes on the Articles of Impeachment, which may or may not be changed. If the Articles of Impeachment are approved, the matter is sent to the Senate for trial.

Impeachment Trials

The trial in the Senate is handled by "Managers" from the House of Representatives, with the assistance of attorneys employed for the prosecution of the impeachment case. The Senate sits as a jury. (In the past the Senate has heard judicial impeachments by appointing a subcommittee especially for that purpose, which then reports its findings to the Senate as a whole.) The Senate would then debate the matter, and vote, each individual Senator voting whether to convict the President and remove him from office, or against conviction. If more than two-thirds of the Senators present vote to convict, the President would be removed from office. Thus a Senator who abstained from voting but was present would in effect be voting against conviction. (Article I § 3).

If the President is convicted by a vote of the Senate, and removed from office, yet another grave constitutional crisis is then presented. Does the President have a right of appeal, and if so, to whom? Article I § 3 of the Constitution states:

"The Senate shall have the sole Power to try all Impeachments..."

For many years, the conventional view was that the forgoing section of the Constitution meant that the Senate was the final arbiter when it came to impeachments (at least as to Federal Judges) and that what constituted an impeachable offense would be unreviewable. See Ritter v. U.S., 84 Ct. Cl. 293 (1936) cert denied 300 U.S. 668 (1937).

However, if there is an impeachment standard (and there can be no doubt that there is as the Constitution specifically establishes one -- "treason, bribery or other high crimes and misdemeanors"), then it is only logical that it is possible for that standard not to be correctly followed. If such is the case, who is responsible for saying that the standard was not correctly followed? There can only be one answer -- the courts. As there has never been a successful impeachment and removal of a sitting President, there is no authority "on all fours" for the proposition either way. However, there is authority which would shed some light on this complicated question.

The Role of the U.S. Supreme Court

The Supreme Court of the United States has decided that it should not review judicial impeachments, using the "political question" doctrine to sidestep the issue. Walter Nixon v. United States, 506 U.S. 224 (1993). In the Walter Nixon case, Judge Nixon attacked the rule of the Senate allowing a subcommittee to hear evidence, rather than the Senate as a whole, in his judicial impeachment. The opinion of the Supreme Court declined to review Judge Nixon's case, and in dicta is not binding on future Courts.

Even though the Court was unanimous in concluding not to review Judge Nixon's removal from office, there were multiple concurring opinions. The concurring opinion of Justice White indicates an unwillingness, on his part at least, to conclude in advance that a Presidential impeachment would be unreviewable. See Walter Nixon v. United States, 506 U.S. at 244. As stated by Justice White at footnote 3, page 247 of the Walter Nixon case:

"Finally, as applied to the special case of the President, the majority's argument merely points out that, were the Senate to convict the President without any kind of trial, a Constitutional crisis might well result. It hardly follows that the Court ought to refrain from upholding the Constitution in all impeachment cases. Nor does it follow that, in cases of Presidential impeachment, the Justices ought to abandon their constitutional responsibilities because the Senate has precipitated a crisis."

This view is echoed by Justice Souter in his concurring opinion in the same case:

"If the Senate were to act in a manner seriously threatening the integrity of its results...judicial interference might well be appropriate." Walter Nixon v. United States, 506 U.S. at 253.

Interesting and informative but it did not address the question at hand.

 

[Remodeling Maidiac]

Is this process specifically outlined or are these people just making it up as they go?

Serious question.

I'll give you an opinion that I heard last night from a former special prosecutor/constitutional scholar.

He said that the sole impeachment power belongs to the House and the sole power to try the case
belongs to the Senate.

Now he said it would probably be challenged in the courts, but it would be an intra branch squabble and,
constitutionally speaking, the courts my not be able to interfere.

He said, the House has impeached. The Senate should just go ahead, set a trial date, and if no one shows
up to prosecute the case, the case is dismissed.

He remarked a couple of times that it would be challenged but he believed that the Senate would be on firm
ground. The House impeached. They have Zero to do with any trial except for prosecuting the case. If they
don't show up, it's over.

That's not a firm answer for you, but this is all unchartered waters and everything would set precedent..

Interesting take on it.

 

[teddyearp]

Yes. That pesky old constitution seems to get in the way of lots of Trump's plans. He already called parts of it fake.

Please provide a quote and/or link to exactly what parts of the Constitution the President called fake.

 

[rightwinger]

Seems the Dems are having second thoughts. They are hoping to get the most impact they can out of the mess they have made.

Dems should hold the Articles of Impeachment until Trumps legal challenges of releasing evidence have cleared the courts

Should take about a year unless Trump drops his challenges

Funny that not only do you advocate for denying someone a speedy trial. A big part of the bill of rights which shows that things like the constitution only matter to crazy Dems when it fits their side.
You show that this was not about the so called pressure because of him using his office for all the reasons that Dems claimed. If Trump was such that he had to be impeached in such a speedy manner then delaying it shows they really were not serious.

Of course your opinion matters to no body.

Sometimes trials take a while....often years

In this case we have an Article of Impeachment on Obstructing Congress
Part of it is Trump going to court to prevent the release of documents and allowing his staff to testify.

Doesn’t it make sense to allow these cases to be resolved? THEN if Trump refuses to comply, the Senate will have no choice but to convict

 

[rightwinger]

Yes. That pesky old constitution seems to get in the way of lots of Trump's plans. He already called parts of it fake.

Please provide a quote and/or link to exactly what parts of the Constitution the President called fake.

The part about impeachment

He seems to think it is a coup

 

[dannyboys]

Not sure, but it seems oddly conspicuous not to allow the 4 folks who could each seemingly exonerate the President in full... to testify.

I understand he wants the Trial so that the partisan vote can happen and he can SAY that he was exonerated...but it's quite telling that he doesn't want to actually BE exonerated.

YOU ASSHOLE!!!! Even if the 'witnesses' testified Trump did nothing wrong YOU would claim Trump 'bought them off'.
NOTHING Trump will ever do will "exonerate" him in the eyes the the fucking Trump haters.
You wait. Trump WILL get the last laugh when Ivanka becomes the first female president.
Sorry Buttplug Pete. You will never be the first President who is married to a man.

 

[BULLDOG]

Yes. That pesky old constitution seems to get in the way of lots of Trump's plans. He already called parts of it fake.

Please provide a quote and/or link to exactly what parts of the Constitution the President called fake.

 

[G.T.]

Not sure, but it seems oddly conspicuous not to allow the 4 folks who could each seemingly exonerate the President in full... to testify.

I understand he wants the Trial so that the partisan vote can happen and he can SAY that he was exonerated...but it's quite telling that he doesn't want to actually BE exonerated.

YOU ASSHOLE!!!! Even if the 'witnesses' testified Trump did nothing wrong YOU would claim Trump 'bought them off'.
NOTHING Trump will ever do will "exonerate" him in the eyes the the fucking Trump haters.
You wait. Trump WILL get the last laugh when Ivanka becomes the first female president.
Sorry Buttplug Pete. You will never be the first President who is married to a man.

Calm down, weirdo

 

[Richard-H]

Is this process specifically outlined or are these people just making it up as they go?

Serious question.

Serious answer:

Read the U.S. Constitution.

 

[depotoo]

I read about what the Constitution said about the impeachment process. It did not outline what happens if the articles of impeachment are not sent to the Senate. It did mention that two (?) managers from the House will assist in the Senate Trial. But what if they didn't send them or the articles.

The Constitution clearly states that the articles of impeachment are to be sent to the Senate. No question. There is a point where the Supreme Court can be involved, but it's murky.

I will try to find what I read so you can determine what it means in this situation.

Think of it this way. If they don’t send it to the Senate and yet declare him guilty without a trial that is against the law, just as it would be for anyone. It’s like he is indicted but then don’t allow him due process. That would be thrown out of any court of law here. At least that is my understanding.

Due process would include a fair evaluation of all evidence presented at trial. The right wing already announced their verdict before the trial even started, or any evidence has been presented. McConnell and republican senators are the ones denying due process.

Honey, are you saying the Dems haven’t been calling for impeachment before his desk chair got warm? Talk about due process.

 

[depotoo]

I read about what the Constitution said about the impeachment process. It did not outline what happens if the articles of impeachment are not sent to the Senate. It did mention that two (?) managers from the House will assist in the Senate Trial. But what if they didn't send them or the articles.

The Constitution clearly states that the articles of impeachment are to be sent to the Senate. No question. There is a point where the Supreme Court can be involved, but it's murky.

I will try to find what I read so you can determine what it means in this situation.

Think of it this way. If they don’t send it to the Senate and yet declare him guilty without a trial that is against the law, just as it would be for anyone. It’s like he is indicted but then don’t allow him due process. That would be thrown out of any court of law here. At least that is my understanding.

Due process would include a fair evaluation of all evidence presented at trial. The right wing already announced their verdict before the trial even started, or any evidence has been presented. McConnell and republican senators are the ones denying due process.

You do recall that Impeachment was called for on the day Trump took office, right? Just who denied due process?

Impeachment was also discussed on the first day of Obama's presidency, when the right had a meeting to decide they would oppose everything he tried to do. Don't you remember that "one term president" remark by Turtle Boy?

Bull.