Is Impeachment a Fair Game?

October 22, 2019

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 20^th 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 21^st 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!

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