“P1060830” by marnievaughan is licensed under CC BY-NC 2.0
Theron Anderson, Associate Member, University of Cincinnati Law Review
I. Introduction
As the discussion of Donald Trump’s potential impeachment becomes louder, it can be helpful to take a moment to understand the true essence of the impeachment process, and who is entrusted to make the decision. The discussion includes laws that may have been violated by the president; therefore, a reasonable conclusion could be that the impeachment process requires a legal finding of the president’s wrongdoing. But when interpreting the structure of the Constitution and the delegation of impeachment power to Congress under Article I, the impeachment process should be used as a political judgement amongst the elected legislators and not a legal finding, which is more suited for another branch of government.
II. Background
The story of President Trump’s potential impeachment begins five years ago. In March 2014, a portion of Ukraine was invaded and annexed by Russia.[1] In response, the United States, along with other countries, sanctioned Russia which created a closer relationship between the United States and Ukraine.[2] A month later, Hunter Biden, Joe Biden’s son,, took a seat on the board of a Ukrainian natural gas company.[3] The position was acquired around the same time that Joe Biden was leading the Obama administration’s diplomatic dealings in the capital of Ukraine.[4] During Hunter Biden’s tenure, company’s owner came under investigation for corruption claims and was widely criticized for his business dealings.[5] Further connections between the Bidens and Ukraine were created in April 2019 when the Ukrainian Prosecutor General alleged, “without evidence,” that Joe Biden pressured the former Ukrainian President to fire the former Ukrainian Prosecutor General in an attempt to stop a criminal probe that involved Hunter Biden.[6]
President Trump entered into the story when he and the current Ukrainian President talked by phone on July 25, 2019, to discuss Ukrainian affairs.[7]A day later, the United States Special Envoy for Ukraine and the United States Ambassador to the European Union met with the Ukrainian President.[8] During the discussion, the two United States officers allegedly “advised the Ukrainian leadership on how to ‘navigate’ Trump’s demands of [the Ukrainian President].”[9]
On August 12th, an anonymous whistleblower filed a complaint with the Intelligence Community Inspector General.[10] The complaint created a buzz on Capitol Hill which led to criticism of President Trump for his block of military aid to Ukraine.[11] On September 9th, three House Committees launched an investigation into the matter and requested information about the July 25th phone call.[12] After a report that a “promise” was made during the phone call and President Trump’s acknowledgement that Joe Biden was discussed during the meeting, the House of Representatives announced a formal impeachment inquiry into President Trump on September 24th.[13]
A top United States diplomat reported to investigators that “a public promise by Ukraine” to investigate the 2016 United States election and the company that employed Hunter Biden was required in exchange for United States military aid for Ukraine.[14]
On October 31st, the House of Representative approved a resolution to formalize the impeachment inquiry procedures.[15] The House Intelligence Committee will manage the public hearings and write a report detailing its findings.[16] That report will be made public and submitted to the House Judiciary Committee for further consideration of potential articles of impeachment and other recommendations.[17] The resolution also permits the Republican Representatives to request witnesses and issue subpoenas with the caveat that the Democratic Representatives authorize the action.[18]
The White House has informed the House of Representatives of its unwillingness to cooperate with the impeachment process.[19]The restraint of the Executive Branch raises questions as to how smoothly this process will run in the near future.
III. Overview of the Impeachment Power
While drafting the Constitution, the Framers entrusted the impeachment process in the hands of the House of Representatives and Senate, collectively Congress. When determining whether to remove a government official from office, Congress must look to whether that official has committed “Treason, Bribery, or other high Crimes and Misdemeanors.”[20]
Within Congress, the Framers delegated different roles to each chamber. The Framers gave the House of Representatives the “sole Power of Impeachment.”[21] The exercise of this power is exemplified in the House of Representatives announcing their formal impeachment inquiry.
On the other side of Capitol Hill, the Senate is granted the “sole Power to try all impeachments.”[22] When trying these cases, the Senate acts as a jury and requires a two-thirds majority vote to convict the president.[23]
IV. The Impeachment Process
The process begins with the House of Representatives. Using the “sole Power of Impeachment,” the House can use the proceeding of its choice to impeach the President as long as it ends in a majority vote.[24] Other than the majority vote, no constitutional clause exists that requires the House to use a certain process.[25] The vote will be based on articles of impeachment, which are the reasons why the House is attempting to remove the President.[26] A successful majority vote on an articles of impeachment will impeach the President equating to a grand jury indictment leading to a trial.[27] The House acts as a “prosecutorial body,” and the bar for impeachment, like the bar for an indictment, is low.[28] A vote for impeachment can occur without the target of the impeachment, the government official, being involved with the proceeding.[29]
The successful impeachment will then activate the Senate.[30] The Senate will hold a trial to decide whether the government official should be convicted under the articles of impeachment.[31] Within the trial, the House serves as the prosecutor, the government official becomes the defendant, the Chief Justice from the Supreme Court is the judge, and the Senate represents the jury.[32] To convict the government official, the “jury” needs to return a two-thirds vote convicting the government official.[33] A conviction will then remove the government official from office with no appeals process.[34] A failure to convict will allow the government official to finish the term, but the impeachment label will remain.[35]
V. Previous Impeachments
The history of the United States includes a handful of instances where Congress’s impeachment tool was taken out of the toolbox. The first instance came during John Tyler’s term, the nation’s 10thpresident, after Tyler angered Congress by vetoing a bill.[36] This impeachment initiative did not make it to the Senate.[37]
The next instance was a successful attempt to impeach Andrew Johnson, the 17thpresident of the United States.[38] The radical Republicans were continually upset with President Johnson’s sympathetic actions towards Reconstruction in the South and the former slaveholders within.[39] After Johnson removed his Secretary of War, who was assigned the job of overseeing Reconstruction, the House of Representatives successfully voted to impeach.[40] Though this impeachment made it to the Senate, the Senate failed to convict, allowing Johnson to stay in office for the remainder of his term.[41]
In 1974, Richard Nixon’s actions regarding a scandal coverup initiated discussion within the House of Representatives on whether to move for impeachment.[42] Before the House could vote on impeachment, President Nixon decided to resign from office.[43]
Most recently, Bill Clinton was impeached by the House on December 19, 1998, for lying to a grand jury about his affair within the White House.[44] The Senate did not convict Clinton under the articles of impeachment that included perjury and obstruction of justice.[45]
VI. Potential Articles of Impeachment
The impeachment discussion has produced three potential articles of impeachment to be used against President Trump. The articles include: (1) the violation of campaign finance laws; (2) the violation of the Emoluments Clause; and (3) the failure of the President to fulfill his duty as Commander-in-Chief.
The campaign finance law at issue is the provision prohibiting a person, including the President, from “solicit[ing], accept[ing], or receiv[ing] a contribution or donation.”[46] Contributions and donations under this provision include “money or other thing[s] of value, or . . . an expressed or implied promise to make a contribution or donation, in connection with a Federal, State, or local election.”[47] The prohibited givers of these contributions or donations includes a government of a foreign country.[48]
The Emoluments Clause is found in Article I of the Constitution.[49] The clause states that “no Person holding any Office . . . shall, without Consent of Congress, accept of any present, Emolument, Office, or Title, of any kind whatever from any . . . foreign State.”[50] Emoluments are defined as “returns arising from office or employment usually in the form of compensation or perquisites.”[51] The clause prevents elected officials from accepting gifts or favors from a foreign government or official.[52]
Finally, the broader approach would be to impeach President Trump based on his failure to fulfill the duties as Commander-in-Chief.[53] This approach would focus, not on particular laws, but, on the bigger picture of President Trump’s term.
VII. Congressional Arguments
In its investigation, Congress could find that President Trump’s request to the Ukrainian President for damaging information regarding Joe Biden and his son falls within the campaign finance provision found in 52 U.S.C. § 30121(a).[54] If this article of impeachment was chosen, Congress would argue that the President Trump was “solicit[ing]” or “accept[ing] a contribution or donation.”[55] The object being requested, information on the Bidens, could fit within the meaning of contributions and donations under “thing of value” and “an expressed or implied promise to make a contribution or donation.”[56]
While this article is contemplated, the Justice Department entered the investigation and determined President Trump was not in violation of campaign finance laws.[57] The Department disagreed that the conversation between the presidents would fall within a “thing of value.”[58]
Similar to the article of impeachment concerning campaign finance laws, Congress could find that the conversation between the presidents falls within the reach of the Emoluments Clause.[59] Once again, Congress would have to argue that the request for information, and the possible return of information, falls within the category of a foreign gift. The Emoluments Clause could also be used against the alleged business dealings that President Trump has received that “ar[ose] from” his office.[60]
Finally, Congress might take the general approach and utilize an article of impeachment that attacks President Trump’s abuse of the office and failure to fulfill his duties as Commander in Chief.[61] This approach would require a collection of presidential actions throughout his tenure. An investigation under this article would result in varying findings by both sides due to the investigation’s subjectivity.. An action taken by the president could be seen as one furthering the office of the president for one legislator while seen completely different to another.
VIII. Analysis
To determine whether a certain article of impeachment is sufficient, the standard necessary for impeachment and conviction must be correctly characterized. The impeachment process is commonly compared to a grand jury and subsequent trial. While this example is useful to understand the process’s structure, it presents confusion on whether the impeachment process is a legal finding, similar to that of the judicial side of government, or a political judgement among legislators.
The power of impeachment and conviction was granted to the political branch of Congress by the Constitution. Therefore, the decision of whether to impeach and convict a government official should be based on the political judgement of the country’s elected officials.
Two approaches can be used to determine the true meaning of the Constitutional provisions regarding impeachment: the text of the Constitution or the structure of the Constitution. Following the text, the legal terms within the clause stating “[t]he President . . . shall be removed . . . for . . . Treason, Bribery, or other high Crimes and Misdemeanors,” can lead to the reasonable conclusion that the impeachment process should be a legal finding, requiring a certain level of proof.[62]
The more appropriate approach is to base conclusions on the structure of the Constitution. Article I of the Constitution places complete control of the impeachment process in the hands of the House of Representatives and the Senate. Article I does not burden Congress with the task of legal findings. The task of legal findings fits more comfortably within a “judicial Power,” which is found in Article III, devoted to the judicial branch.[63]
IX. Conclusion
Relying on the structure of the Constitution and establishing the impeachment process as a political judgement is not to say legal findings and opinions cannot be used to guide the judgement of the legislators. The findings of the Justice Department regarding President Trump’s non-violation of campaign finance laws should be allowed to aid Congress. But in the end, the impeachment and conviction of government officials should be based on the political judgements of the legislators entrusted to make the political decisions.
[1]Zachary B. Wolf, Trump impeachment inquiry: A visual timeline,October 29, 2019, https://www.cnn.com/interactive/2019/10/politics/impeachment-inquiry-timeline/.
[2]Id.
[3]Id.
[4]Brian Slodysko, How Trump’s Ukraine call could violate campaign finance laws, September 25, 2019, https://www.apnews.com/560b20b139d943969e17c82eda77ca8d.
[5]Wolf, supranote 1.
[6]Id.
[7]Id.
[8]Id.
[9]Id.
[10]Id.
[11]Id.
[12]Id.
[13]Id.
[14]Id.
[15]Clare Foran, House votes to formalize impeachment inquiry procedures, October 31, 2019, https://www-m.cnn.com/2019/10/31/politics/house-impeachment-inquiry-resolution-floor-vote/index.html?r=https%3A%2F%2Fwww.cnn.com%2Fpolitics%2Flive-news%2Fimpeachment-inquiry-11-01-2019%2Findex.html.
[16]Id.
[17]Id.
[18]Id.
[19]Wolf, supra note 1.
[20]U.S. Const.art. II, §4.
[21]U.S. Const.art. I, §2, cl. 5.
[22]U.S. Const.art. I, §3, cl. 6.
[23]U.S. Const.art. I, §3, cl. 6.
[24]Charlie Savage, How the Impeachment Process Works, September 24, 2019, https://www.nytimes.com/2019/09/24/us/politics/impeachment-trump-explained.html.
[25]Keith E. Whittington, Must the House Vote to Authorize an Impeachment Inquiry?, October 9, 2019, https://www.lawfareblog.com/must-house-vote-authorize-impeachment-inquiry.
[26]Savage,supranote 24.
[27]Id.
[28]Whittington, supranote 25.
[29]Id.
[30]Savage, supranote 24.
[31]Id.
[32]Id.
[33]Id.
[34]Id.
[35]Id.
[36]Tom Murse, Impeached Presidents of the United States, October 17, 2019, https://www.thoughtco.com/presidents-who-were-impeached-3368130.
[37]Id.
[38]Id.
[39]Id.
[40]Id.
[41]Id.
[42]Id.
[43]Id.
[44]Id.
[45]Id.
[46]52 U.S.C. § 30121(a)(2) (1972).
[47]52 U.S.C. § 30121(a)(1)(A) (1972).
[48]52 U.S.C. § 30121(b)(1) (1972), 22 U.S.C. § 611(b)(1) (1938).
[49]U.S. Const.art. I, §9, cl. 8.
[50]Id.
[51]Robert Longley, US Constitution: Article I, Section 9 – Constitutional Restrictions on the Legislative Branch, September 2, 2019, https://www.thoughtco.com/constitution-article-i-section-9-3322344.
[52]Id.
[53]Tom Nichols, How Democrats should impeach Trump: A searing constitutional duty, a plan from 2 realists, October 4, 2019, https://www.usatoday.com/story/opinion/2019/10/04/impeach-trump-abuse-obstruction-campaign-finance-emoluments-column/3851239002/.
[54]Slodysko,supranote 4.
[55]Id.
[56]Id.
[57]Id.
[58]Id.
[59]Nichols, supranote 54.
[60]Longley,supra note 52.
[61]Nichols,supranote 54.
[62]U.S. Const.art. II, §4.
[63]U.S. Const.art. III, §1.
