A critique of the impeachment process in the US by Arinze Michael

In every constitutional democracy, checks are put on the exercise of governmental powers to decry and evade a situation of tyranny, dictatorship and absolute rule . The United States being of a democratic dispensation, subscribes to this practice of putting measures to checkmate the exercise of powers by civil officers and that is why Article One, Section 2 of the US Constitution gives the powers of impeachment of the President or vice President on the US Legislature. The process is characterized by a step by step action till the removal or impeachment proper. Thus this work gears towards reviewing the impeachment Process in the US.
Impeachment in the United States is the process by which a legislature’s lower house brings charges against a civil federal officer, the vice president, or the president for misconduct alleged to have been committed. Impeachment may also occur at the state level if the state or commonwealth has provisions for it under its constitution. The Constitution permits Congress to remove presidents before their term is up if enough lawmakers vote to say that they committed “treason, bribery, or other high crimes and misdemeanors.” Only three presidents have been impeached — Andrew Johnson in 1868, Bill Clinton in 1998 and Donald Trump in 2020— and the trio were ultimately acquitted and completed their terms in office. Richard M. Nixon resigned in 1974 to avoid being impeached. The federal House of Representatives can impeach a party with a simple majority of the House members present or such other criteria as the House adopts in accordance with Article One, Section 2, Clause 5 of the United States Constitution. Most state legislatures can impeach state officials, including the governor, in accordance with their respective state constitution.
Most impeachments have concerned alleged crimes committed while in office, though there is no requirement for the misconduct to be an indictable crime. Treason, bribery, or other high crimes and misdemeanors can ground an impeachment process in the US pursuant to the Constitution. The term “high crimes and misdemeanors” came out of the British common law tradition: it was the sort of offense that Parliament cited in removing crown officials for centuries. Essentially, it means an abuse of power by a high-level public official. This does not necessarily have to be a violation of an ordinary criminal statute. In 1788, as supporters of the Constitution were urging states to ratify the document, Alexander Hamilton described impeachable crimes in one of the Federalist Papers as “those offenses which 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.”
An impeachment proceeding is the formal process by which a sitting president of the United States is accused of wrongdoing. It is a political process and not a criminal process. The process begins in the House of Representatives, where any member may make a suggestion to launch an impeachment proceeding. It is really up to the speaker of the House in practice, to determine whether or not to proceed with an inquiry into the alleged wrongdoing, though any member can force a vote to impeach. In both the Nixon and the Clinton cases, the House Judiciary Committee first held an investigation and recommended articles of impeachment (The articles of impeachment are the list of charges drafted against the president) to the full House. In theory, however, the House of Representatives could instead set up a special panel to handle the proceedings — or just hold a floor vote on such articles without any committee vetting them.When the full House votes on articles of impeachment, if at least one gets a majority vote, the president is impeached — which is essentially the equivalent of being indicted.
Next, the proceedings move to the Senate, which is to hold a trial overseen by the chief justice of the United States. The Senate is tasked with handling the impeachment trial, which is presided over by the chief justice of the United States in the case of sitting presidents and the president pro tempore has historically presided over Senate impeachment trials of non-presidents. A team of lawmakers from the House, known as managers, play the role of prosecutors. The president has defense lawyers, and the Senate serves as the jury.
To remove a president from office, two-thirds of the members must vote in favor – at present 67 if all 100 senators are present and voting. If the Senate fails to convict, a president is considered impeached but is not removed, as was the case with both Clinton in 1998 and Andrew Johnson in 1868. In Johnson’s case, the Senate fell one vote short of removing him from office on all three counts. If at least two-thirds of the senators find the president guilty, he is removed, and the vice president takes over as president. There is no appeal.
There have been a few cases in which officials have been impeached and subsequently convicted for crimes committed prior to taking office. In a case in which a president was actually removed from office, the vice president would assume office under the 25th Amendment, which was ratified in 1967. Then the new president would nominate a new vice president who would have to be confirmed by a majority of both houses of Congress. There have also been cases where a former official was tried after leaving office. The impeached official may continue to serve their term until a trial yields a judgement that directs their removal from office or until they leave office through some other means. Federally, a two-thirds majority of the senators present at the trial is required for conviction under Article One, Section 3, Clause 6 of the Constitution.
The implications of the impeachment Process on a sitting and former president duffers. A sitting president can continue governing even after he or she has been impeached by the House of Representatives. Trump continued to govern after his impeachment in December 2019, and of course, ran for reelection in 2020. After Clinton was impeached on Dec. 19, 1998, he finished out his second term, which ended in January 2001, during which time he was acquitted in a Senate impeachment trial. While Clinton continued governing, and the impeachment had no legal or official impact, his legacy is marred by the proceeding. Thus, the impeachment proceedings are remedial rather than punitive in nature, and the remedy is limited to removal from office. Because all officers in the Federal government are confirmed in the senate, Officers appointed under the Appointments Clause of the Constitution may also be disqualified from holding any other appointed office under the United States in the future. Because the process is not punitive, a party may also be subject to criminal or civil trial, prosecution, and conviction under the law after removal from office. Also because the conviction is not a punishment, the president is constitutionally precluded from granting a pardon to impeached and convicted persons.
The House voted to impeach Trump on Dec. 18, 2019, on two articles of impeachment, one for abuse of power and one for obstruction of justice, in connection with his alleged quid pro quo call with the Ukrainian president. Following a three-week trial, the Republican controlled Senate acquitted Trump on Feb. 5, 2020, with just one Republican — Mitt Romney of Utah — voting to convict.
Johnson faced impeachment in 1868 after clashing with the Republican-led House over the “rights of those who had been freed from slavery,” although firing his secretary of war, Edwin Stanton, who was backed by the Republicans, led to the impeachment effort. The articles of impeachment centered on the Stanton event, according to the Senate.
Clinton, whose impeachment was connected to the cover-up of his affair with White House intern Monica Lewinsky while in office, was 22 votes away from reaching the necessary number of votes to convict in the Senate.
Richard Nixon faced three articles of impeachment related to the Watergate scandal, in which he allegedly obstructed the investigation and helped cover up the crimes surrounding the break-in. But he did not let the process get any further, resigning before the House could impeach him.
Though the process of impeachment in US is laudable, there are a number of lacunas in the process. These shortcomings in the process are quickly highlighted below:
The issue of how a House impeachment inquiry start is not settled. During the Nixon and Clinton impeachment efforts, the full House voted for resolutions directing the House Judiciary Committee to open the inquiries. But it is not clear whether that step is strictly necessary, because impeachment proceedings against other officials, like a former federal judge in 1989, began at the committee level. This is why in Trump’s case, Mr. Trump’s Justice Department has argued that since there has been no House resolution, the committee is just engaged in a routine oversight proceeding.
Further, there are no set rules for Senate trial. Rather, the Senate passes a resolution first laying out trial procedures. “When the Senate decided what the rules were going to be for our trial, they really made them up as they went along,” Gregory B. Craig, who helped defend Mr. Clinton in his impeachment proceeding and later served as White House counsel to President Barack Obama, told The Times in 2017. For example, Mr. Craig said, the initial rules in that case gave Republican managers four days to make a case for conviction, followed by four days for the president’s legal team to defend him. These were essentially opening statements. The Senate then decided whether to hear witnesses, and if so, whether it would be live or on videotape. Eventually, the Senate permitted each side to depose several witnesses by videotape.
The rules adopted by the Senate in the Clinton trial — including ones limiting the number of witnesses and the length of depositions — made it harder to prove a case compared with trials in federal court, said former Representative Bob Barr, Republican of Georgia who served as a House manager during the trial and is also a former United States attorney. “Impeachment is a creature unto itself,” Mr. Barr said. “The jury in a criminal case do not set the rules for a case and can’t decide what evidence they want to see and what they won’t.”
Also, there is no standards for impeachment and removal in the US Constitution. The Constitution does not specify many, making impeachment and removal as much a question of political will as of legal analysis. For example, the Constitution does not detail how lawmakers may choose to interpret what does or does not constitute impeachable “treason, bribery, or other high crimes and misdemeanors.” Similarly, there is no established standard of proof that must be met.
Finally, the Senate is not obligated to hold a trial. The Constitution clearly envisions that if the House impeaches a federal official, the next step is for the Senate to hold a trial. But there is no obvious enforcement mechanism. If the majority leader in the senate were to simply refuse to convene one — just as Senator Mitch McConnell, Republican of Kentucky refused to permit a confirmation hearing and vote on Mr. Obama’s nominee, Judge Merrick Garland, to fill a Supreme Court vacancy in 2016, no action can lie to compel him
The US impeachment process is stringent but decisive. The system ensures that before any civil officer is impeached or removed from office, such officer must have committed either treason, bribery, or other high crimes and misdemeanors and consequently, a majority vote of the House of Representatives is passed against him. To ensure that the process is thorough, the Senate is also mandated by virtue of the US constitution to hold a trial to either dismiss or confirm the resolution for impeachment. However, the process is not devoid of shortcomings. In order to ensure a smooth impeachment process, those outlined shortcomings as a matter of necessity must be addressed and incorporated into the process.


Michael Arinze is a seasoned advocate and a prolific writer. He is excellence personified. An avid reader and dexterous researcher. Picture perfect of a trailblazing Leader. Beautified in greatness sculptured after no model. Great yet humble, kind and gentle. An ardent lover of God and Mankind. Arinze is the Director of Public Prosecutions , SUG , the Chief Administrative Officer of National LAWSAN Senate and the Lord Advocate of Lex Fori Chambers of Justice.

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