As disturbing facts about Donald Trump’s relationship with Russia continue to flood the news, discussion about impeachment proceedings is increasingly audible and broad. On Friday, news broke that lawyers in the White House are preparing for the possibility of impeachment. While that makes impeachment increasingly “real” the fact that lawyers are studying the subject does not make it an inevitability.
The constitution empowers the legislative branch to forcibly remove a president by impeachment if the president is found guilty of committing treason, bribery or high crimes and misdemeanors. The meaning of “high crimes and misdemeanors” is subject to interpretation because there is no definitive definition of this category of crimes in the constitution or statutes. Alexander Hamilton did offer some guidance in The Federalist Papers No. 65 where he said that crimes are impeachable if they,
proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.
Article 1, Section 2 of the U.S. Constitution gives the House of Representatives the sole power to impeach, or make charges. The Senate has the sole power to try the president on articles of impeachment under Article 1, Section 3.
The impeachment process begins with an investigation into potential wrong doing by the president that could rise to the level of an impeachable offense. This investigation can be done by the Judiciary Committee, its sub-committees, other relevant committees and other relevant sub-committees. Following the investigation, the Judiciary Committee then decides whether to pursue articles of impeachment. If a simple majority votes in the affirmative, the articles of impeachment are presented to the whole house.
If the House adopts the articles of impeachment by simple majority, it selects Members to manage the trial which is conducted by the Senate. While the number of House “managers” has varied, traditionally the House has chosen an odd number of managers.
The trial in the Senate, in many respects, resembles a criminal trial in court. The Supreme Court’s role is limited to the Chief Justice running the proceedings. Some of the appointed House managers present the “prosecutors” version of the case. Managers designated to represent the president, offer a defense. Witnesses are called and are subject to cross examination. The Senate is akin to a jury. It votes on each charge, with a 2/3 majority needed to convict. Even then, the president, once removed from office, can be prosecuted like anyone else in ordinary courts.
It’s worth repeating that the constitution is very specific in giving sole authority to make impeachment charges to the House of Representatives and giving the Senate the sole authority to try these charges.
The purpose of this is to assure, on one hand, that the president is held accountable when warranted, but can govern without fear of political prosecutions, like those Trump threatened to conduct against Hillary Clinton.
Needless to say, the danger in Trump’s case is not of politically motivated impeachment proceedings. Rather, it’s the danger of Republicans being so partisan as to allow impeachable offenses to go without accountability.