With Democrats taking control of the House of Representatives in January, talk has ramped up about impeaching Donald Trump. Democratic House members have already introduced articles of impeachment against Trump twice, but the House has not acted on them because Republicans control it and they have no desire to remove the president, since they get what they want from him.
Since it is pretty obvious that a lot of people do not know the procedure for impeaching a president — it’s been 20 years since we did it last — it is well to review the procedure for impeaching any federal official, including the president, as the Constitution specifies it.
Impeachment comes up quickly in the Constitution. Article I, Section 2, defining the House of Representatives, ends with “The House of Representatives…shall have the sole power of impeachment.” The word, “sole,” appears in the Constitution only twice and has a very specific legal meaning. It means what it means — no one else may initiate an impeachment.
The other use of “sole” appears in the next section, Article I, Section 3, defining the Senate, where impeachment gets an entire paragraph all its own: “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.” So conviction via impeachment requires a two thirds majority.
This passage points up an important distinction. In daily usage, when people say, “impeachment,” they often seem to mean, “remove [official X] via impeachment.” This is harmless, but it is important to appreciate that, “to impeach,” means only to level the charge. If someone is beyond reproach, we can say that s/he is “unimpeachable,” meaning that no allegation is likely to stick to someone with such sterling character. But, under the Constitution, removal via impeachment is a two stage process. The House initiates the impeachment by leveling the charges, which the Senate then evaluates in a trial that is much like any other criminal trial, except that the defendant is a public official. Note that the Chief Justice (of the Supreme Court) presides when the president is on trial, as Chief Justice Rehnquist did for Bill Clinton’s impeachment trial.
The next paragraph in Article I, Section 3 also deals entirely with impeachment: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” So the maximum penalty for a finding of guilt in an impeachment trial is removal from office and prohibition on ever holding office in the United States again. But the person so removed remains liable to criminal prosecution for whatever offense led to the impeachment.
Which raises the question, what constitutes reason to impeach? Article II, Section 4 addresses that issue: “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.” As the point above suggests, impeachment is only available for criminal offenses. This is necessary. We want a mechanism for removing corrupt officials, but if doing so is too easy, or the standard too low, it could bring government to a halt because it would be tempting to use it for purely political purposes.
As a procedural question, impeachment is pretty simple. Although the standard for removal is criminal, the decision to pursue any given impeachment is always unavoidably political, especially to impeach the president, as we have seen with Democrats calling for the impeachment of Trump and the Republicans refusing to act on that demand. Clinton survived his impeachment trial because the Democrats had enough seats to prevent a two thirds majority and they knew that voting to acquit him would cost them nothing politically. Richard Nixon chose to resign after the House voted out articles of impeachment when three Republicans met with him and told him that he would not survive a trial in the Senate.
As of now, since the Republicans have a majority in the Senate, it is certain that Trump will survive any trial even if the House votes to impeach, barring any new developments that change the minds of Republican Senators.
With Trump, that is entirely possible.