Archive for February 17th, 2020

Impeachment

February 17, 2020

Now that the Donald Trump impeachment saga has come to an ignominious end, I thought it might be interesting and informative to take a look at the previous presidential impeachments and compare them to the present effort. So far, there have been three presidents impeached by the House of Representatives, Andrew Johnson in 1868, Bill Clinton in 1998, and Donald Trump in 2020. While the precise circumstances of each case have been dissimilar, with various specific accusations being made against each president in diverse historical and political contexts, there have been similarities in the three presidential impeachments, as we shall see. In no case, so far, has the president actually been convicted and removed from office. In each case, the charges made against the president, the conduct of the trial in the Senate and the ultimate outcome has been a matter of politics rather than the law. Impeachment, then, is more of a political matter than a strictly legal one.

The constitution mentions impeachment in several clauses. Article I Section 2 Clause 5 states:

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

The House of Representatives impeaches a government official, including the president. Impeachment is simply bringing charges of misconduct against the officeholder, rather like a prosecutor bringing charges against a person accused of committing a crime. Contrary to what many of Donald Trump’s critics seem to believe, impeaching an official does not mean that that official is actually guilty of any crime, nor is he automatically removed from office. The Senate tries impeachments, acting as a sort of jury, as stated in Article I Section 3 Clauses 6 and 7 of the constitution.

6: 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.

7: 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.

According to Article II Section 4 of the constitution:

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.

Andrew Johnson was impeached in 1868, as a result of the conflict between Johnson and Congress over Reconstruction. It is not necessary to get into the details of that conflict here.

Andrew Johnson

Simply put, President Johnson favored a more lenient treatment of the defeated south than the Republicans who controlled Congress. Johnson was a Southern Democrat who had been added to Lincoln’s ticket in the election of 1864 as a gesture of national unity. After Lincoln’s assassination, Johnson found himself opposed by both Congress and his own Cabinet, particularly his Secretary of War Edwin M. Stanton. To prevent Johnson from replacing Lincoln’s cabinet with his own men, Congress enacted the Tenure of Office Act of 1867 which prevented the president from dismissing cabinet officials without the consent of the Senate. Johnson demanded Stanton’s resignation anyway, Stanton barricaded himself in his office, and Congress proceeded to impeach President Johnson.

Edwin Stanton in his office.

On February 24, 1868, the House of Representatives voted 126 to 47 to impeach the president. The following week, the House presented eleven articles of impeachment, accusing President Johnson of violating the Tenure of Office Act by firing Edwin Stanton and appointing a new Secretary of War without the consent of the Senate, challenging the authority of Congress to legislate reconstruction, and using  “with a loud voice, certain intemperate, inflammatory, and scandalous harangues, and did therein utter loud threats and bitter menaces … against Congress [and] the laws of the United States duly enacted thereby, amid the cries, jeers, and laughter of the multitudes then assembled and within bearing”.

The case then went to the Senate on March 4. The trial began on March 23 and the voting took place on May 16 and 26. This was not really the case of a somber Senate carefully considering each article. There were reports of political pressure and even outright bribery to persuade the Senators to vote to acquit or convict. In each case, the Senate voted 35 to 19 for conviction, just one vote short of the two-thirds necessary to convict.

President Johnson remained in office but was a lame duck for the rest of his term and did not run for reelection. He was, however, vindicated in the end. The Tenure of Office Act was repealed in 1887 and the Supreme Court declared a similar act unconstitutional in 1920, noting that the Tenure of Office Act of 1867 was also likely to be unconstitutional. Andrew Johnson was not a very good president, but he should not have been impeached. His impeachment was little more than a partisan attempt to remove a president that the Republicans saw as standing in the way of Reconstruction and divided a country that needed to be united in the wake of the most destructive war in its history.

I think that it is fair to say that the Republicans hated President Bill Clinton more than they had any previous Democratic president. Part of this hatred was personal, a sort of moral outrage against a president seen to be immoral. As his nickname, Slick Willie might suggest, Bill Clinton had a reputation for sleaze and corruption, and for escaping the consequences for his actions. Part of the dislike stemmed from thwarted political hopes. When the Republicans took control of Congress for the first time in forty years, after the 1994 midterms, the Republican congressional leaders, particularly Newt Gingrich, believed that they would be setting the national agenda, with President Clinton reduced to irrelevance. Clinton was more politically adroit than the Republicans expected, however, and was able to portray the Republicans as obstructionist extremists, by triangulating to the center, infuriating the Republicans, and easily winning reelection against the uninspiring Bob Dole.

Slick Willie

The Republicans spent most of Clinton’s term investigating Clinton’s various scandals, without making much headway with the public. The country was prosperous and at peace and Clinton was slick, so the people did not much care about his misdeeds. By 1998, however, the Republicans believed they had their chance with Paula Jones’s sexual harassment lawsuit against Clinton. I would rather not get into the sordid details about Clinton’s affair with Monica Lewinsky as well as the exhaustive report by Ken Starr on Clinton’s numerous transgressions. It is sufficient to point out that Clinton made false statements to a grand jury and in a deposition in the Paula Jones lawsuit.

He did not have sex with that woman.

On December 19.1998, the House of Representatives voted, largely along party lines to send two articles of impeachment, perjury to a grand jury and obstruction of justice, to the Senate. The Senate trial lasted from January 7. 1999 to February 9. The Senate then considered the charges in a closed session until February 12 when they emerged ready to vote on the verdict. On the first charge, perjury, the Senate voted not guilty 45 to 55 and on the second charge, obstruction of justice, they voted not guilty 50 to 50, well short of the 67 guilty votes needed to convict. In each case, the 45 Democratic Senators voted not guilty with five Republicans defecting on the second charge.

Should the Republicans have impeached Bill Clinton? From a legal viewpoint, yes. Clinton was unquestionably guilty of the charges made against him, and more. He was a sleazy, corrupt man who was guilty of serial sexual assault. From a political viewpoint, no. Impeaching the president was a foolish act, considering that the Republicans did not have the sixty-seven votes needed to convict and there was no chance of convincing ten Democratic Senators to break ranks with their party. The impeachment of Bill Clinton was not popular with the American people. Neither were the investigations leading up to Clinton’s impeachment. This public dislike of Ken Starr’s investigations was certainly a factor in the Republican loss of five Congressional seats in the election of 1998 when the opposition party usually gains seats in midterm elections. Clinton’s impeachment may well have a cause for the closeness of the 2000 presidential election. Normally, it is not easy for one party to hold onto the White House and Al Gore wasn’t a particularly appealing candidate. If the Republicans had not impeached Clinton, George W. Bush might have won the election by a decent margin. A great deal of subsequent partisan acrimony would likely have been avoided.

Karl Marx once wrote, “History repeats itself, first as tragedy, second as farce.” I do not know how that statement might apply generally, but it certainly applies to the history of impeachment in the United States. The impeachment of Andrew Johnson was a high tragedy, based on fundamental constitutional questions on the relationship between the executive and legislative branches. The impeachment of Bill Clinton was tragi-comic, based as it was in the titillating details of Clinton’s sexual exploits and deceptions. The impeachment of Donald Trump has been simply a farce.

The Democrats have hated Donald Trump, probably even more than the Republicans hated Bill Clinton. Part of this is undoubtedly Trump’s brash and uncouth personality. Part of this might be due to dashed hopes. Most observers, including myself, expected Hilary Clinton to win the 2016 election, and the Democrats were looking forward to sweeping Congress and forming a permanent Democratic majority. Donald Trump’s unexpected victory enraged the Democrats.

Donald Trump

Whatever the reason, the Democrats began seeking causes for impeaching Trump even before he took office, but it was only after they gained control of the House of Representatives in the 2018 midterm elections that they had any chance of impeaching him. A July 2019 telephone call between President Trump and Ukrainian president Volodymyr Zelensky gave the democrats their pretext. In this conversation, Trump asked Zelensky to investigate corruption charges against Joe Biden’s son, Hunter, allegedly threatening to withhold military aid to Ukraine if Zelensky did not comply. The Democrats seized on this story to begin an impeachment inquiry in October.

Donald Trump talking to Zelensky?

On December 17. 2019 the House of Representatives voted, along partisan lines, to send two articles of impeachment to the Senate, Abuse of Power and Obstruction of Congress. Speaker Nancy Pelosi delayed actually presenting the articles of impeachment until January 15, 2020, and the Senate trial began on January 22 and on February 5, the Senate voted to acquit Trump 48 to 52 on the first charge and 47 to 53 on the second charge, along partisan lines with Senator Mitt Romney the only Republican voting guilty on the first charge.

The impeachment of Donald Trump was a supreme act of folly by the Democrats. Not only did the Democrats not have the sixty-seven votes needed to convict President Trump, but they also did not even have a majority in the Senate, so they had no control over how the Senate trial was to be arranged. Under the circumstances, Trump’s acquittal was a foregone conclusion, and the whole impeachment was a waste of time and money. The Democrats in the House of Representatives were so eager to appease their base by impeaching Trump that they didn’t bother to make much of a case against him. The impeachment investigation was hasty and partisan, without much of an attempt to include Republicans in the process. The Senate trial was a joke since the Republicans didn’t take the charges seriously. The whole affair was a trivialization of the impeachment process. I expect that the Republicans will take revenge by impeaching the next Democratic president over similarly trivial charges until impeachment becomes a regular part of politics and presidents are being impeached for jaywalking or tearing the tags off mattresses.


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