Who can be impeached and why, who can impeach and how, and how impeachment differs from removal from office.
Article 2, Sec. 4, of the U.S. Constitution says:
“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.”
About 15 House Democrats, led by Ohioan Dennis Kucinich (who is also a presidential candidate) and including Minnesota’s Keith Ellison, are sponsoring a resolution to start impeachment proceedings against Vice President Dick Cheney. Esteemed colleague Abdi Aynte’s interview with Ellison about the impeachment is here.
The idea seems unlikely to go far. Ellison’s spokester, Rick Jauert, conceded as much, telling the Associated Press that Ellison “has no illusions that this is going anywhere and that’s fine. We’ve got more important things to do that affect people’s daily lives.”
Kucinich has not specified which of Cheney’s many controversial actions he considers to be high crimes and misdemeanors. House Judiciary Chair John Conyers hasn’t committed to holding hearings on impeachment (although he did say on the George Stephanopoulos program July 8 that growing support for impeachment might encourage Bush to be more forthcoming about various matters he is stonewalling).
Still, the idea itself is sensational. Bill Moyers devoted his latest “Bill Moyers Journal” to it. And every development will be covered. So it seems worth reviewing the course outline for Impeachment 101 with these four points to remember:
1. Be careful of your terminology. The word “impeachment” is often used, incorrectly, to refer to the removal of an office holder. But (as Art. 2, Sec. 4 indicates) you have to impeached before you can go on trial for your high crimes. And you have to be convicted before you lose your job. Bill Clinton was impeached, but not convicted and therefore served out his term.
Article 1, section 2, Clause 5:
“The House of Representatives… shall have the sole Power of Impeachment.”
Translation: impeachment happens in the House, requires a majority vote, but is the equivalent only of indictment in a criminal court.
Article 1, Sec. 3: Clause 6:
Translation: The trial occurs in the Senate, but requires a two-thirds vote to convict. For Cheney to be removed from office, all of the Democrats plus one third of the Republican senators would have to agree to remove him from office. One is never supposed to say “never,” but this is unlikely. No Democratic senator voted for any of the articles of impeachment against Clinton.
2. The term “other high Crimes and Misdemeanors” has never been precisely defined. As a practical matter, any article of impeachment that obtained enough votes for conviction would be adequate to turn an office-holder into a former office-holder (although the Constitution also specifies that losing the job and being disqualified from holding any future federal “office of honor, Trust or Profit) is the only punishment.
Anyway, the chances are slim and none that the Supreme Court would nullify an impeachment on the grounds that the crime wasn’t high enough.
You may not believe this (no one ever does the first time they hear it) but the crime for which President Andrew Johnson was impeached, and came within one vote of being convicted, was firing a member of his cabinet after Congress had passed a blatantly unconstitutional law
forbidding the president to fire any of his appointees without congressional approval.
3. Impeachment is very rare. In all of U.S. history there have been only 16 federal officials impeached, including two presidents, a senator, a cabinet member, a Supreme Court justice and 11 judges of lower federal courts. Only seven cases resulted in a conviction by the Senate and removal from office, all of them involving the lower court judges.
President Richard Nixon is often mistakenly included on the list of impeached presidents, but he resigned before impeachment came to a vote in the full House.
4. No vice president has been removed or impeached. The closest we can come to vice presidential impeachment cases are:
• Aaron Burr, Thomas Jefferson’s vice president, got away withmurder — the killing of Alexander Hamilton in a New Jersey duel — committed while Burr was vice president. But he stayed out of New Jersey, was never tried for the crime and no effort was made to impeach him. Burr subsequently went on trial (before the Supreme Court, no less) for treason. But this was after his vice presidency, and he was acquitted.
• Schuyler Colfax, vice president for two full terms under President Ulysses S. Grant, was implicated in the same financial corruption scandal that tarnished Grant’s reputation. Colfax did apparently profit corruptly from the case. A bill of impeachment against Colfax failed in a party-line vote, in part because Colfax’s term was almost over. Impeachment scholar Michael Gerhardt of North Carolina State University Law School says that among the reasons the Cheney impeachment idea is unlikely to get traction is that he has just a year and a half to go in his term, and impeachment is usually a long, slow process.
• Spiro Agnew, Nixon’s vice president, resigned his office and pleaded no contest to corruption charges stemming from his pre-vice presidential work in Maryland.
Although it wasn’t an impeachment, the Agnew case might have a slight whiff of the Cheney case about it. The investigation of Agnew’s crimes were coming to a head as the Watergate scandal was building against Nixon. Getting Agnew safely out of the vice presidency in case Nixon faced impeachment was surely a factor that added urgency, to spare the nation the crisis of having the president and vice president simultaneously under clouds.
In the Cheney case, it works a bit differently. Many who want to impeach Cheney would also like to impeach President Bush. (Ellison told Aynte that he isn’t ruling that in or out.) But removing Bush while Cheney was next in line would strike the Cheney impeachers as unappealing. So, going after Cheney first…
By the way, If Cheney was impeached, the very modern (ratified in 1967, responding to the JFK assassination) 25th Amendment would authorize Pres. Bush to nominate a new VP, subject to confirmation by a majority of both houses of Congress. If you enjoy contemplating a series of mind-bending what-ifs, start thinking about that one.
Two final Constitutional quirks worth mentioning:
• Although the Chief Justice is required to preside over presidential impeachment trials, the trial of lesser officials is refereed by the presiding officer of the Senate. The vice president normally has first claim on that assignment.
Prof. Gerhardt says Senate rules provide for the Senate’s president pro tem to take over that job; he doesn’t believe Cheney would try to claim the right to preside over his own trial; and if Cheney tried, a majority of senators would surely insist otherwise, the professor believes.
• In light of the recent Scooter Libby commutation, this final, seldom mentioned clause: Article 2 of our sometimes very prescient Constitution gives the president the “power to to grant Reprieves and Pardons for Offences against the United States EXCEPT IN CASES OF IMPEACHMENT.