To Impeach or Not to Impeach, part 1

“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.”  — U.S. Constitution, Article II, Section 4

Should President Barack Obama be impeached?

A lot of people seem to think so. There have been internet memes, tee-shirts, bumper stickers, billboards, and highway overpass demonstrations demanding it. Even some hard-Left liberals, like Code Pink co-founder Medea Benjamin, have called for Obama’s impeachment. Yet, opinions on the matter differ even among his most ardent ideological opponents — e.g., Sen. Ted Cruz (R-TX) and Rep. Paul Ryan (R-WI) are against it, while former Gov. Sarah Palin (R-AK) and former Rep. Allen West (R-FL) are in favor.

As I write this, talk of impeaching the President appears to have died down somewhat — at least, in the press. Between foreign affairs (e.g., the ISIS threat; Hamas vs. Israel; Russia in Ukraine) and domestic crises (e.g., protests and rioting in Ferguson, MO; floods of illegal immigrants; potential Ebola outbreak), the nation and its leaders have had plenty of other concerns to take up our and their time and energy. But, the idea of impeaching President Obama definitely hasn’t gone away, nor should it.

"Impeach Obama" billboardTo be honest, up until lately, I hadn’t been keeping up with the arguments for and against impeachment. It was just one of those issues/ideas that intrigued me but never made it to the top of my list to check into and mull over. But, when I decided to investigate it for this article, I found and read over 50 articles of varying length and depth, from average-guy/gal bloggers (like me) to regular political columnists, politicians, and think-tank fellows, reaching back to November 2012. (Of course, talk of impeachment started way before then. In fact, a petition for it on the White House’s “We the People” petition Web page gathered almost 29,000 digital signatures in only 5 days just that month.) So, hopefully, I have a fair handle on the issue and the arguments anti and pro.

It seemed to me that the best approach would be to answer, if possible, the following three questions, in order:

1) Is there a legal, Constitutional case to be made for impeaching Obama?

2) Assuming there is a case, from a pragmatic sense, would it be a good idea (i.e., in the country’s best interest) to proceed with impeachment, in regards to costs, competing issues & responsibilities of the parties that would be involved, and the consequences of potentially removing Obama from office?

3) Assuming there is a case, but consensus opinion beforehand — i.e., among the expert legal minds, political scientists and strategists — is that Obama nevertheless might not be found guilty and removed from office, would the exercise of initiating impeachment proceedings against the President still be worth it on principle, for morale, and for history’s sake?

What Does the Constitution Have to Say?

Before proceeding, we need to review the Constitutional grounds for presidential impeachment and any relevant past examples. Here are the basics, as per the Constitutional Rights Foundation’s (CRF) website:

“The U.S. Constitution provides impeachment as the method for removing the president, vice president, federal judges, and other federal officials from office. The impeachment process begins in the House of Representatives and follows these steps:

1) The House Judiciary Committee holds hearings and, if necessary, prepares articles of impeachment. These are the charges against the official.
2) If a majority of the committee votes to approve the articles, the whole House debates and votes on them.
3) If a majority of the House votes to impeach the official on any article, then the official must then stand trial in the Senate.
4) For the official to be removed from office, two-thirds of the Senate must vote to convict the official. Upon conviction, the official is automatically removed from office and, if the Senate so decides, may be forbidden from holding governmental office again.

The impeachment process is political in nature, not criminal. Congress has no power to impose criminal penalties on impeached officials. But criminal courts may try and punish officials if they have committed crimes.

The Constitution sets specific grounds for impeachment. They are “treason, bribery, and other high crimes and misdemeanors.” To be impeached and removed from office, the House and Senate must find that the official committed one of these acts.

The Constitution defines treason in Article 3, Section 3, Clause 1:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Constitution does not define bribery. It is a crime that has long existed in English and American common law. It takes place when a person gives an official money or gifts to influence the official’s behavior in office. For example, if defendant Smith pays federal Judge Jones $10,000 to find Smith not guilty, the crime of bribery has occurred.

Prior to the Clinton investigation, the House had begun impeachment proceedings against only 17 officials. [None were ever convicted.] …

In all the articles of impeachment that the House has drawn, no official has been charged with treason…. Two officials have been charged with bribery. The remaining charges against all the other officials fall under the category of “high crimes and misdemeanors.” “

Most people understand what treason and bribery are; it’s this “high crimes and misdemeanors” that gives most of us pause. The Framers were concerned about sufficiently covering all the types of abuse that a president might commit but didn’t want to threaten the separation of powers by giving the Legislative branch too much power (e.g., via vague wording) over the Executive. After rejecting “corruption” and “maladministration”, they settled on “high crimes and misdemeanors”. It was a term well familiar to them as a part of English law since 1386. According to the CRF, it covered a wide range of offenses, including (but not limited to):

“misappropriating government funds, appointing unfit subordinates, not prosecuting cases, not spending money allocated by Parliament, promoting themselves ahead of more deserving candidates, threatening a grand jury, disobeying an order from Parliament, arresting a man to keep him from running for Parliament, losing a ship by neglecting to moor it, helping “suppress petitions to the King to call a Parliament,” granting warrants without cause, and bribery.”

Some were criminal acts and others not, but they all involved an official abusing his power of office and, therefore, his fitness to continue said service put into question.

Alexander Hamilton portrait

Alexander Hamilton

“In Federalist No. 65, [Alexander] Hamilton explained impeachment. He defined impeachable offenses as “those offences 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.”

For the more than 200 years since the Constitution was adopted, Congress has seriously considered impeachment only 18 times. Thirteen of these cases involved federal judges. The “high crimes and misdemeanors” that the House charged against these judges included being habitually drunk, showing favoritism on the bench, using judicial power unlawfully, using the office for financial gain, unlawfully punishing people for contempt of court, submitting false expense accounts, getting special deals from parties appearing before the court, bullying people in open court, filing false income tax returns, making false statements while under oath, and disclosing confidential information.

Only three of the 18 impeachment cases have involved a president — Andrew Johnson in 1868, Richard Nixon in 1974, and Bill Clinton in 1998.”

Prime Examples

So, what were the circumstances, charges, and outcome(s) of each case involving a U.S. president?

Johnson, a Democrat, constantly clashed with the Radical Republicans over Reconstruction legislation. In particular, the Tenure of Office Act was one of several passed despite Johnson’s veto. It required the President to get congressional permission before firing anyone in the executive branch whom Congress had approved. Johnson, believing the Act was unconstitutional, proceeded to fire Edwin Stanton (Rad. Rep.), the Secretary of War.

“The House passed 11 articles of impeachment. Eight involved Johnson’s violations of the Tenure of Office Act. One charged him with sending orders through improper channels. Another accused him of conspiring against Congress, citing a statement he made about Congress not representing all the states. The last summarized the other 10 charges and charged him with failing to enforce the Reconstruction Acts. At the end of the Senate trial, only three charges were brought to a vote. Johnson was saved from conviction on each by one vote.”

The charges against Johnson, generally seen as politically motivated, are not viewed as “high crimes and misdemeanors” worthy of removing a president from office.

Nixon, as we all know, was involved in the “Watergate Scandal”. Prior to the 1972 election (in which Nixon would be re-elected by a landslide), an attempted burglary/wire-tapping occurred at the Democratic HQ at the Watergate Hotel in Washington, D.C. The operatives were caught in the act, and it turned out they had ties to the White House. It was never proven how much the President knew beforehand, but it is suspected that he was afraid of what other unethical practices by his administration might be discovered. Nixon is known to have talked of raising hush money for the Watergate burglars and used the FBI and CIA to impede the investigation.

“In 1974, the House Judiciary committee voted three articles of impeachment. One accused Nixon of obstruction of justice. Another accused him of abuse of power. The third charged him with contempt of Congress for defying the committee’s requests to produce documents. Nixon resigned the presidency before the whole House voted on the articles.”

It had been proposed earlier that the President also be brought up on tax evasion. (VP Spiro Agnew had already been forced to resign in 1973, pleading “no contest” to charges of income tax evasion.) But, based on a previously-ordered staff report, the committee concluded it was not an impeachable offense and declined to vote an article of impeachment for that charge.

Bill Clinton "Liar, Liar" headline - Daily NewsClinton’s impeachment woes are known — at least, in part — to most people over 35. What started out as an investigation into a 20-year-old land investment deal expanded to include “scandals surrounding the firing of White House staff in its travel office, the misuse of FBI files, and an illicit affair that the president had with a White House intern.” That last one was the biggest embarrassment. In his 1998 report, Independent Counsel Kenneth Starr identified 11 potentially impeachable offenses, all related to the affair.

“Based on the independent counsel’s investigation, the House Judiciary Committee voted four articles of impeachment. The first article accused the president of committing perjury before a grand jury convened by the independent counsel. The second charged him with providing “perjurious, false and misleading testimony” in a civil case related to the scandal. The third accused him of obstructing justice to “delay, impede, cover up and conceal the existence” of evidence related to the scandal. The fourth charged that he misused and abused his office by deceiving the American public, misleading his cabinet and other employees so that they would mislead the public, asserting executive privilege to hinder the investigation, and refusing to respond to the committee and misleading the committee about the scandal.”

During the committee’s hearing, experts called by the Democrats testified that none of the charges constituted “high crimes and misdemeanors”. Experts called by the Republicans countered that there was precedent of impeachment and removal from office for perjury. They also argued that Clinton had violated his oath and duties as “chief law enforcement officer” to uphold all the nation’s laws.

Now that we have a foundational understanding of impeachment, in Part 2 we’ll look at the current circumstances and attempt to answer the three questions I posed above.

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