In democratic countries the system of checks and balances is established by the Constitution, law and other legal acts and is implemented accordingly. One of these mechanisms is the institute of impeachment stipulated in the US constitution by the founding fathers. In the US the power to impeach is vested upon the legislative body, mainly upon the House of Representatives of the bicameral Congress, which has “the sole Power of Impeachment” (Article 1, Section 2) and the Senate has the sole Power to try all impeachments (Article 1, Section 3). Article 2, Section 4 of the US Constitution defines that “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.[1]”
The scope of the application of impeachment procedure has caused a lot of debates. The reason is that, while the meaning of treason and corruption is understandable, the same cannot be said about the notion of ‘’high Crimes and Misdemeanors’’. As a result, the applicability of impeachment has legal and political interpretations. According to legal interpretation, impeachment should be limited to criminal offenses, offenses which are indictable. Whereas, the political interpretation views impeachment as a means against officers, who haven’t violated any law, but have caused harm to the state in the course of their actions[2].
Prominently, during the 1787 Constitutional Convention, one of the delegates, namely George Mason initially offered to view maladministration as a basis for impeachment. The latter implied that the executive can be impeached in case of bad performance of constitutional duties and inability to control the actions of the administration. Another delegate- James Madison claimed that the application of such subjective term will pave the way for impeaching presidents based solely on political sentiments. As a result, Mason suggested to change ‘’maladministration’’ to ‘’high Crimes and Misdemeanors’’[3]. Though, according to some authors, such change was simply an exercise in semantics, as ‘’high Crimes and Misdemeanors’’ referred to maladministration of persons in high office rather than criminal crimes[4].
During the 1787 Constitutional Convention some delegates warned that the right to impeachment could be abused for partisan reasons. And one of the founding fathers Alexander Hamilton warned that “there will always be the greatest danger that the decision will be regulated more by the comparative strength of the parties than by the real demonstrations of innocence or guilt”[5]. Meanwhile, James Madison in his February 15, 1798 letter to Thomas Jefferson noted that impeachment “is the most formidable weapon for the purposes of a dominant faction that ever was contrived. It would be the most effectual one for getting rid of any man whom they consider as dangerous to their views.[6]”
Those who are against the impeachment often indicate that it could be insufficient and inappropriate. Insufficient because the maladministration and the legal duties are out of the scope of impeachment. It is inappropriate because impeachment can outgrow into political circus. In contrast to this, if the same situation was tried in the court, we would have an impartial trial with the participation of the president[7].
Impeachment in US History
In the course of US history only 2 presidents have been impeached- Andrew Jackson and Bill Clinton. According to many claims, those impeachments were predominantly based on political sentiments.
Andrew Jackson was the only officer in federal government, who was from Southern states, which aspired to secession. As Vice-President he took the office of US president following Abraham Lincoln’s assassination. His ideas of the Reconstruction of Southern states were deeply in conflict with the views of the majority (especially radical Republicans) of 40th US Congress, that later resulted in impeachment. The problem was that Andrew Jackson was at odds with the Secretary of War- Edwin Stanton, who had the support of Congress. To prevent Stanton’s possible dismissal from his office Senate passed Tenure of Office Act, which limited the president’s authority to dismiss officers appointed by the Senate. Johnson vetoed that act, but Senate overrode it and Stanton was reinstated under the Act. In response to that the President citing the authority vested in him by the Constitution eventually dismissed Stanton. Three days later the House of Representatives passed a resolution to impeach the president (1868, 24 February)[8]․ This process didn’t come to its logical conclusion because, according to the US Constitution[9], ‘’no Person shall be convicted without the Concurrence of two thirds of the Members present’’. 36 votes were necessary to convict Johnson, but only 35 voted against the president and he stayed in his office[10]. It is peculiar that Johnson was accused of high misdemeanor as he appointed Lorenzo Thomas as acting Secretary of State without the approval of the Senate. In 1887 the Tenure of Office Act was repealed in 1887, while in 1926 the Supreme Court ruled that this Act was unconstitutional, though it had already been repealed 40 years before[11].
The second president to be impeached, was Bill Clinton on the accusation of “high crimes and misdemeanors” (1998). Specifically, he was accused of perjury and obstruction of justice. The perjury is connected with his testimony before the grand jury, where in spite of his oath to tell only the truth, he recited a false account of the facts regarding his interactions with Monica Lewinsky- an employee of the White House[12]. He was tried in the Senate but the charge against him was not justified[13]. Among the reasons why Senate decided not to approve the impeachment are-first, Clinton had high approval rating for properly conducting his presidential duties, although from moral point of view people may have supported some sort of punishment. The second was the economic reason, state of the nation’s economy and the fact that many Americans considered themselves to be better off financially may have led them to doubt the rationale of rocking the boat at that time. Third, the independent counsel and the Republican-led Congress had low public support, which also worked in Clinton’s favor[14].
Nixon’s Case
Because of misunderstanding, many people put Richard Nixon in the list of the presidents who had undergone impeachment, but as a result of the president’s early resignation, a formal voting did not take place in the House of Representatives. Although the Judicial Committee of the House of Representatives had already approved the three articles for impeaching Nixon. Had he not resigned, the resolution for presidential impeachment would have passed both in the House of Representatives and the Senate[15]. This circumstance is connected with the famous Watergate scandal. Watergate scandal term is used to describe a series of American political scandals between the period of 1972-1974. First, on June 17, 1972 five people were arrested with charges of installing bugs in the Democratic National Committee. The breaking in took place during that year’s electoral campaign and was done by a group of supporters of Nixon’s reelection campaign committee. Those people who broke in and their two accomplices were convicted in January, 1973. In April, 1974 Nixon under the public pressure published the edited version of the tape connected with the Watergate scandal. The fact of publication did not hinder the gradual decline of the support of his administration. Neither had it established a perception among the public that Nixon was involved in conspiracy[16].
United States v. Nixon case was argued before the Supreme Court on July 8, 1974. The court demanded to disclose the tapes. Abiding to court decision Nixon released the tapes, which showed that Nixon had lied to the public and obstructed justice[17]. Though attorneys for Mr. Nixon argued that ‘’only acts which were criminally indictable and which were proven beyond reasonable doubt could be interpreted as sufficient to constitute grounds for impeachment’’, the inevitability of impeachment made Nixon resign on August 8, 1974. Gerald Ford[18] took the president’s office and became the only president in US history to take that office without being elected as a president or vice-president.
Back in 1970, Congressman Gerald Ford, when supporting the impeachment of William O. Douglas, claimed that an impeachable offence was simply “whatever a majority of the House of Representatives [considers it] to be at a given moment in history’’[19]. President Gerald Ford did something that gave rise to а strong reaction. On September 8, 1974 Gerald Ford pardoned Richard Nixon stating in particularly ‘’Now, THEREFORE, I, GERALD R. FORD, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974’’[20]. Following the pardon, President Ford’s approval rating declined by 16%, while his press-secretary resigned as a sign of protest to that decision. This became one of the reasons contributing to Ford’s failure in 1976 presidential elections[21].
It is apparent that during the Watergate scandal the trust towards US government had drastically declined. According to the polls, the public trust towards the American leaders had not been the same after Nixon’s resignation. Before the Watergate scandal the polls showed that more than half of the Americans trusted the elected official. Never again we have encountered such high results[22].
The Possibility of Trump’s Impeachment
Even before Trump’s taking the presidential office there were a lot of talks of the possibility of his impeachment. Six months earlier there was an attempt to impeach Trump in matters of Robert Muller’s report. Trump’s critics were sure that he had come into a secret agreement with the Russians for interfering into 2016 presidential elections, and the fact that he tried to “conceal” it, was considered by those people as a firm ground for starting an impeachment procedure[23]. His adversaries thought that the publication of Muller’s report would be the end of Trump’s political career, but eventually the results of the report did not give any recommendations for impeachment. For several weeks Trump’s critiques tried to raise impeachment sentiments around Muller’s report but the attempt failed. Finally, the basis for impeachment became the president’s phone call with newly elected president of the Ukraine Volodimir Zelensky on July 25, 2019. The details about this phone call became known when a whistleblower provided information on this matter on 12 August, where it was specifically mentioned that “I have received information from multiple U.S. Government officials that the President of the United States is using the power of his office to solicit interference from a foreign country in the 2020 U.S. election. This interference includes, among other things, pressuring a foreign countries to investigate one of the President’s main domestic political rivals. The President’s personal lawyer, Mr. Rudolph Giuliani, is a central figure in this effort. Attorney General Barr appears to be involved as well.[24]”
Based on the information provided by the whistleblower, the Speaker of the House of Representatives Nancy Pelocy declared about the start of impeachment procedure against President Trump on 24 September, 2019 and directed the chairman of 6 committees to “proceed under that umbrella of impeachment inquiry.[25]” In response to this, Donald Trump disclosed his phone call memorandum with Zelensky. In this conversation Trump particularly mentioned that ‘’There’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you can look into it … It sounds horrible to me’’[26]. While Trump views this memorandum as a sign of his innocence, the democrats view this in a totally opposite way considering that it only emphasizes and proves his high crime.
It is obvious that the Democrats are going to use their majority in the House of Representatives in their attempt to impeach the president. Though it is also clear that the maximum they can get is passing of the impeachment resolution in the House of Representatives. In the upper House of Congress- the Senate, the impeachment is less likely to be approved, as for that ⅔ of Senate votes is necessary and now we have a Republican led Senate. Thus, unless Republicans go against their party member, the chances of impeachment are equal to null.
It’s a common perception that every impeachment undermines national unity. Americans today are more politically divided than before Nixon’s resignation and Clinton’s impeachment. Each side of the aisle is demonizing the other. Besides this, those citizens who were born after the famous Watergate scandal have less trust towards their government than those who were born before that scandal. This is also true for those Americans who were born after 1999[27].
Consequently, taking into account all
above-mentioned facts, one should analyze how justified is the decision to
start an impeachment procedure against Trump, especially when it is highly
likely not come to its logical conclusion. Moreover, the chances of Trump’s
reelection are still high, even after this scandal. Though Democrats are
possibly trying to get dividends in this way for 2020 presidential elections,
as well as Congressional midterm elections, the impeachment can have an
opposite effect, i.e. it might work for Trump’s benefit[28].
The simple evidence of this is the fundraising of $13million for Trump’s 2020
campaign, 5$ million out of which was raised in the first 24 hours after Nancy
Pelosy’s announcement from all 50 states. At the same time, Trump’s current
approval rating is 42.1%. Overall, since taking the office his highest approval
rating has been 45.5% right after the elections[29].
References
[1] The Constitution of the United States: A Transcription, https://www.archives.gov/founding-docs/constitution-transcript.
[2] Havens, Murray Clark, and Dixie Mercer McNeil. “Presidents, Impeachment, and Political Accountability.” Presidential Studies Quarterly 8, no. 1 (1978): 5-18
[3] Meacham J., Naftali T., Baker P., Engel J., Impeachment: An American History, Modern Library, 2018, 304.
[4] Havens, Murray Clark, and Dixie Mercer McNeil. Ibid.
[5] Maness, Lonnie E., and Richard D. Chesteen. “The First Attempt at Presidential Impeachment: Partisan Politics and Intra-Party Conflict at Loose.” Presidential Studies Quarterly 10, no. 1 (1980): 51-62.
[6] To James Madison from Thomas Jefferson, 15 February 1798, https://founders.archives.gov/documents/Madison/01-17-02-0057․
[7] Isenbergh, Joseph. “Impeachment and Presidential Immunity from Judicial Process.” Yale Law & Policy Review 18, no. 1 (1999): 53-109.
[8] Stathis, Stephen W. “Impeachment and Trial of President Andrew Johnson: A View from the Iowa Congressional Delegation.” Presidential Studies Quarterly 24, no. 1 (1994): 29-47.
[9] The Constitution of the United States: A Transcription, ibid.
[10] The Impeachment of Andrew Johnson (1868) President of the United States, https://www.senate.gov/artandhistory/history/common/briefing/Impeachment_Johnson.htm.
[11] The Impeachment of Andrew Johnson, https://www.andrewjohnson.com/02KeyPoliticalIssues/TheTenureOfOfficeAct.htm.
[12] H. Rept. 105-830 – Impeachment of William Jefferson Clinton, President of The United States, https://www.congress.gov/congressional-report/105th-congress/house-report/830/.
[13] Bill Clinton is an American politician from Arkansas who served as the 42nd President of the United States (1993-2001). He took office at the end of the Cold War, and was the first baby-boomer generation President., https://www.whitehouse.gov/about-the-white-house/presidents/william-j-clinton/.
[14] Silva, Carol L., Hank C. Jenkins-Smith, and Richard Waterman. “Why Did Clinton Survive the Impeachment Crisis? A Test of Three Explanations.” Presidential Studies Quarterly 37, no. 3 (2007): 468-85
[15] Fry, Brian R., and John S. Stolarek. “The Nixon Impeachment Vote: A Speculative Analysis.” Presidential Studies Quarterly 11, no. 3 (1981): 387-94
[16] The scandal that toppled a president, http://news.bbc.co.uk/2/hi/americas/4597669.stm.
[17] The Watergate Scandal, Constitutional Rights Foundation, Bill of Rights Action, Summer 2010, Volume 25, Number 4, 16 p.
[18] Havens, Murray Clark, and Dixie Mercer McNeil, ibid.
[19] Palmer, Niall. “Legitimizing Impeachment.” Journal of American Studies 33, no. 2 (1999): 343-49.
[20] Presidential Studies Quarterly Vol. 24, No. 1, Domestic Goals and Foreign Policy Objectives (Winter, 1994), pp. 121-137․
[21] The Watergate files; The Aftermath, https://www.fordlibrarymuseum.gov/museum/exhibits/watergate_files/content.php?section=5&page=a
[22] Meacham J., Naftali T., Baker P., Engel J., ibid.
[23] The Real Reason Donald Trump Could Be Impeached, https://nationalinterest.org/feature/real-reason-donald-trump-could-be-impeached-84051.
[24] The Full Text, https://intelligence.house.gov/uploadedfiles/20190812_-_whistleblower_complaint_unclass.pdf.
[25] Nancy Pelosi Announces Formal Impeachment Inquiry of Trump, https://www.nytimes.com/2019/09/24/us/politics/democrats-impeachment-trump.html
[26] Memorandum of Telephone Conversation, https://www.whitehouse.gov/wp-content/uploads/2019/09/Unclassified09.2019.pdf
[27] Meacham J., Naftali T., Baker P., Engel J., ibid.
[28] Trump raises $13million after Pelosi announces impeachment inquiry, https://www.telegraph.co.uk/news/2019/09/28/trump-raises-13million-pelosi-announces-impeachment-inquiry/.
[29] How popular is Donald Trump? https://projects.fivethirtyeight.com/trump-approval-ratings/