What is impeachment?

The impeachment process keeps grinding along approaching the 3-month mark. For lawyers and constitutional scholars, this is legal “nirvana,” for lay people our current public discourse is a confusing mess of partisan babble. Whether or not the President should be impeached is a political matter; however, some disingenuous arguments are clogging our airways about both the definition of impeachable offenses and process.

Impeachment is a tool used to remove any government official from office for malfeasance – not just a President. Indeed, the full text of the impeachment clause makes this clear, “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.” Numerically, more federal judges, who otherwise have lifetime appointments, have been impeached and removed than any other category of federal official.

As we all probably know, this is now just the fourth time in our history that impeachment has been seriously considered for a President (President Nixon was not formally impeached). The phrase “other high Crimes and Misdemeanors” is what is subject to legal wrangling. We find pro- and anti-Impeachment politicians making arguments about constitutional intent at odds with their usual legal philosophies.

Authored a mere fifteen years after the Constitution was ratified, Chief Justice John Marshall’s epochal decision in Marbury v. Madison established the concept of “judicial review.” In doing so, he established our courts as the final arbitrators of the constitutionality of our laws. This created a legal cottage industry about the importance of the “original intent” of our Founding Fathers. “Originalists” argue for strict contextual interpretation based on colonial norms; a “Living Constitution” philosophy suggests laws are subject to the flux of modernity.

Typically, “conservatives” favor “originalist” judicial interpretation of our laws. In other words, Republicans want judges who try to figure out what the Founding Fathers meant by the text and times of the Constitution. Yet, in the impeachment debate, Republicans mock the testimony of three expert legal professors opining about why the Founding Fathers would consider President Trump’s actions impeachable offenses and why they would not require proof of a crime. If there is ever a time to look back at what our Founding Fathers said about the meaning of the Constitution, it is with the impeachment clause.

Republicans have also complained about supposed “process” deficiencies. Here, they are also thin ice. There really is no “process” built into an impeachment. The House of Representatives gets to, essentially, indict a federal official and the articles are impeachment are passed on to the Senate for a trial, presided over by the Chief Justice of the Supreme Court, where there is also really no “process” beyond this direction. There are no rules about hearsay, a President’s ability or right to present evidence, or even what constitutes a trial. Still, if we look at the House’s job as similar to a secret Grand Jury in a criminal proceeding, during which an accused has no rights, it would only take evidence of “probable cause” (or essentially, “some” evidence) to sustain the impeachment.

In gathering evidence of “probable cause,” Grand Jurors meet in secret and the subpoenas issued are done so in secret. The reason prosecutors bring witnesses before a Grand Jury is to “lock in” their testimony under oath, before a case has to be tried and before a defense attorney can cross-examine them. This is just smart lawyering. There was nothing suspicious about first questioning of witnesses in “closed session” – especially, because some of the questioning might implicate matters of national security and could not be asked about in a public hearing.

Probable cause is a pretty low legal bar and, contrary to Republican argument, can be based on hearsay. Citizens are arrested and charged with crimes on sketchy terms everyday. It is to the trial they look for vindication. President Trump’s tweet that he wants the House to hurry up and just get the impeachment done, so he can be tried in a Senate where he expects to be acquitted, makes some sense; criminal defendants sometimes feel the same way, because that is when you get to the challenge the evidence.

There has been some dispute about the right of minority House members to call witnesses to testify in committee hearings. One of these witnesses is a “whistle blower” whose identity is protected by Federal Statute. During the Revolutionary War two naval officers, Samuel Shaw and Richard Marven, were our first whistleblowers, complaining about the misconduct of an Admiral, whom he had tossed in the brig. Appalled, the Continental Congress passed a whistleblower protection law on July 30, 1778, and moved to provide a defense for these patriots. Do we demand less to protect a whistle blower by this Congress?

These types of conflicts should be contrasted with what might happen with a Senate trial. Here, there will be two (2) distinct sides – a prosecutor and a defense. Also, we can expect for formal rules to be adopted which would be adjudicated by our Chief Justice refereeing the trial.

Finally, I want to emphasize the importance and seriousness of these impeachment proceedings, although not to advocate that President Trump be impeached or removed from office. For too long, as I have written, Congress (our Article I branch of government) has ceded authority to the President (whether a Democrat or Republican). Maybe, this impeachment is not the right vehicle to re-right our ship of state, but the President’s stonewalling of Congress is actually a pretty serious offense, because of the assertion that he has Article II powers to do what he wants. Presidents Nixon and Clinton said, essentially the same thing and one resigned and one was impeached.

There is precedent for what is happening today and some of the political arguments against the impeachment proceedings are legally vacuous. It might be the wrong thing, for this country, for there to be what appears likely, a partisan impeachment of a President. How we are getting there is not wrong and the issues being debated are significant.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami. Owner of Rockefeller Law Center, Jim has been in private practice since 2000. E-mail your comments or confidential legal questions to jim@rockefellerlawcenter.com.

A. James Rockefeller 478-953-6955 Jim@rockefellerlawcenter.com Word count (including byline): 1068.