Is Impeachment a Fair Game?
Let’s be good sports, shall we?
Hello, sports fans! Welcome to one of the rarest political spectacles
you will ever witness, the possible impeachment of the President of the United
States. You have a ringside seat as long
as you are anywhere near a television, radio, podcast, Facebook, Twitter, or
newspaper (that’s so 20th century) for the next several months. Most likely, the subject will be unavoidable
if you are awake. On the other hand, you
could skip the whole thing by hibernating or emigrating to Antarctica.
Our Imperfect Union wasn’t
planning on covering this event because…well…the event itself is a surprise. It’s as if Washington has scheduled an extra
World Series or Super Bowl. Aren’t we
lucky! Nonetheless, we cannot resist the
opportunity to observe and comment on this spectacle. So we’ll take a break from our journey
through our broken political system to observe our elected leaders at their
best, or worst, depending on your point of view.
Tickets to this event will be hard
to come by. If there is a trial in the
Senate, you might be able to obtain tickets to see it in person, like the
examples here from 1868 and 1998. These
might turn out to be collector’s items, so contact your Senator now to
reserve yours, just in case.
On the question of fairness, we
must note that impeachment is an inherently political process. It is a constitutionally prescribed remedy
for a federal official thought to be committing “high crimes and
misdemeanors”. It is not a legal process
because it operates outside of the judicial branch, but it is similar to a
criminal proceeding. Impeachment is
mostly an act of Congress. But as a
political process, it does not have to be unfair.
Oh, wait. We forgot we’re talking about the United
States in the 21st century.
And as we saw in Partisanship
vs. Tribalism, the parties involved are playing for keeps in an all-out
battle for supremacy. So can impeachment
be a fair game?
For starters, the President and
most of his Republican colleagues in the Congress are already dismissing the
investigation as a witch-hunt and unconstitutional attempt by Democrats to
cripple the president and undo the 2016 election. Like Obi-wan Kenobi they prefer to wave their
hand and say, “These aren’t the droids you are looking for. Just go about your business.”
The Democrats, naturally, reply
that Trump routinely ignores the law and the Constitution, has obstructed
justice, and is abusing his power by asking “favors” of foreign leaders to dig
up dirt on his political opponents. They
say it’s their solemn duty to investigate these matters and hold the President
accountable.
Our Imperfect Union does not take
sides with partisan arguments. We are
not wagering on the outcome. We don’t
claim any special ability to judge the President’s behavior. However, our role is to determine whether all
players in the game – President, House, Senate, and courts – are playing by the
rules. The act of impeachment isn’t
necessarily unfair unless the game is rigged.
The rules of the game
The Constitution has a basic outline
of the impeachment process but is short on details.
- Phase 1 of impeachment is an investigation by the House of Representatives into possible wrongdoing by the President. It concludes with a vote by the full House on one or more articles of impeachment. It is similar to a grand jury investigation that determines whether there is sufficient evidence to warrant a trial. The House has considerable leeway in going about this investigation. A simple majority vote is required to impeach.
- Phase 2 is a trial in the Senate, presided over by the Chief Justice of the Supreme Court. A 2/3 vote is required to remove the President from office.
To understand how the game is
played, let’s look at a brief history.
President / time frame
|
Key reason(s) for
impeachment
|
Key events &
votes
|
Andrew Johnson / 1868
|
Battle with Congress over
Reconstruction and re-admittance of Confederate states to the Union. Johnson ignored certain Reconstruction laws
passed by Congress and purged cabinet officers who disagreed with him,
defying authority of Congress.
|
2-year battle with Congress
(1866-68)
February 1868: 11 Articles of Impeachment approved by
House 126-47 (17 abstentions)
May 1868: Senate failed to convict by 1 vote (35-19)
|
Richard Nixon / 1973-74
|
Covering up the Watergate burglary
Abuse of power
Contempt of Congress for refusing to cooperate with
investigation
|
May 1973: Senate
Watergate hearings televised
October 1973: House
Judiciary Committee begins impeachment inquiry following Saturday Night
Massacre
February 1974: Full
House authorizes Judiciary Committee inquiry by 410-4 vote
April-July 1974: Battle
over White House tapes, culminating in US v Nixon unanimous decision by
Supreme Court
July 27-30:
Judiciary Committee approves 3 articles of impeachment
August 5: Tapes
released
August 9: Nixon
resigns
|
Bill Clinton / 1998-99
|
Lying under oath to grand jury
about sexual relationships with Paula Jones and Monica Lewinsky
Obstructing justice in Paula
Jones criminal investigation
|
1994-1998: Long-running independent counsel
investigation by Ken Starr into Whitewater land deal and other White House
concerns resulted in no charges filed against Clinton, but led indirectly to
investigation of Clinton’s actions during Paula Jones and Monica Lewinsky
criminal investigations (1997-98)
September 1998 – Ken Starr issues
report to House Judiciary Committee
October 1998 – House authorizes
impeachment investigation
December 1998 – Clinton impeached
on 2 articles (votes: 228-206 and 221-212)
January – February 1999 – Senate
trial, Clinton acquitted (votes: 45-55 to acquit, 50-50 tie)
|
Were these impeachments fair?
Andrew Johnson’s case grew out of
a long battle with Congress over Reconstruction. It came to a head after more than 2
years. Some historians claim that
Senators were bribed to vote one way or another with promises of cash and
patronage jobs. However, in the end the votes
to acquit came from both parties in a Senate that was heavily stacked against
Johnson. There was some fairness and
some cheating.
Richard Nixon’s case unfolded
after the infamous public hearings on Watergate and ongoing criminal
investigation. The House didn’t
officially authorize an impeachment investigation until 9 months after the
hearings, but the vote was 99% in favor.
The writing was clearly on the wall.
Congress asserted their independence and went to the mat with Nixon over
their right to the tapes, winning a unanimous decision in the Supreme Court. Senators met with Nixon and convinced him he
had no chance. The Nixon game appears to
have been fairly even handed, with the usual partisan bickering but a just
outcome. We long for the days when bi-partisanship
could accomplish big things for our country.
Many saw Bill Clinton’s case as a
classic witch-hunt, with the original Whitewater investigation exonerating the
Clintons (albeit many others were indicted for crimes). Votes in Congress fell largely along party
lines. Tribal politics had begun around
1994 with Newt Gingrich’s rise to Speaker of the House. The Clinton game was clearly more divided
along partisan lines.
What did the fans think?
Impeachment in the modern era is a
spectator sport, and another way to judge fairness is to ask if the outcomes
fit the public’s view of these presidents.
For the Nixon and Clinton cases, we have strong evidence that the
outcome matched public perception.
Nixon’s approval rating sank to
around 25% during the impeachment period while the percent of people thinking
he should be removed slowly grew to over 50%.
The fans thought he was a lousy president but didn’t strongly favor his
removal until the end was near.
Clinton, on the other hand, had
60-70% approval ratings throughout the whole process. And 30% or less supported his impeachment (details
from Pew Research).
We could argue that Congress “got
it right” for both Nixon and Clinton in terms of public perception.
Scoring the Trump impeachment
It’s way too early to decide
whether Congress is “getting it right” regarding Trump. Most importantly, the process must adhere to
the Constitution and be fair and balanced.
As of this writing, there is
already considerable controversy over the process. Must the full House vote to start an
investigation? Should the witnesses be
seen in public? Can the House enforce
subpoenas to obtain documents and interview witnesses? Will the executive branch cooperate?
While the politicians try to score
their points, we will be keeping score as to the fairness of the process. We offer this scorecard for those who want to
play along. We will be periodically
updating this scorecard, so stay tuned to this blog.
Phase 1 -
investigation
|
Fair play rules
|
Score as of
10/17/19
|
House – investigates, votes on impeaching
|
1. Define
clear scope of inquiry on significant infraction
2. Hold
public hearings
3. Allow
bi-partisan participation
4. Don’t
impede or obstruct
5. Debate
and vote in public
|
1.
B – Multiple investigations, but impeachment
inquiry seems focused on Ukraine. Full
house vote not a requirement per historical precedent.
2.
TBD – witnesses interviewed privately so far
3.
A – witnesses sitting in front of bi-partisan
committee
4.
TBD – Republicans angry but not obstructing
5.
TBD
|
Executive – produce documents, participate in interviews and hearings
|
1. Produce
documents as requested
2. Witnesses
cooperate
3. Don’t
impede or obstruct investigation
|
1. Fail
– Trump, Barr, et. al., refusing to answer subpoenas
2. C
– Some witnesses ignoring orders to not appear
3. Fail
– all-out war on the process declared by Trump
|
Courts – resolve House/Exec branch disputes
|
1. Hear
cases publicly
2. Decide
cases in timely fashion
3. Strictly
adhere to law
4. Non-partisan
decisions
|
1. A
– some cases heard
2. TBD
3. TBD
4. TBD
|
Phase 2 – trial (if needed)
|
Fair play rules
|
|
House – trial managers present case
|
1. Allow
bi-partisan participation
|
|
Senate – sits as jury
|
1. Try
case publicly
2. Allow
both sides to present case
3. Don’t
impede or obstruct
|
|
Executive – provides information and witnesses
|
1. Follow
rules of evidence established by Chief Justice
2. Don’t
impede or obstruct
|
|
Chief Justice Roberts – presides over Senate
|
1. Establish
consistent rules for evidence and presentation
2. Resolve
disputes in non-partisan manner
3. Don’t
allow anyone to impede or obstruct proceedings
|
So what can I do now?
Contact your Representative
or Senator to express
your opinion. It seems clear that the
inquiry is going to proceed, so don’t bother asking them to stop it. But insist that the process be fair.
You can also contact the White House and
insist that the President and executive branch cooperate. Good luck with that.
Finally, you can jump into the social media frenzy about
impeachment. Be prepared to spend a lot
of time. We will be posting updates to
the scorecard on this blog, via our Facebook page, and on Twitter (@OurImperfectUni). Please comment on the scorecard!
Recommended reading
Wikipedia has useful summaries of the investigations and/or impeachments:
Johnson,
Nixon,
and Clinton
=================================================================
Upcoming posts
·
How is our government is supposed to work?
·
Democracy or Republic – which are we?
·
What’s the matter with Congress?
This is a fascinating look (actually listen) at the articles of impeachment being considered by the House non-partisan experts including 2 law professors, one of whom is a member of the Federalist Society, and an expert on national security. It explains the rationale behind the articles and discusses in depth how a Senate trial might proceed. It's frankly a relief from the ranting and raving available elsewhere. https://www.acslaw.org/podcast/articles-of-impeachment/
ReplyDeleteAdditional reading on the articles of impeachment from this organization: http://go.acslaw.org/webmail/584003/379996961/6a01af5bb31ae0fdbe3f1adaf5b95e43a9da764363b18d4e3bf36fc3656b74fa
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