President Trump’s impeachment has brought the flawed process for removing a sitting President from power to the forefront of American politics. Issues ranging from the inherent political nature of the process, the Chief Justice of the Supreme Court presiding, the flexible nature of the rules of an impeachment trial, and the House’s ability to impeach without sending the terms to the Senate are all gaping flaws in our current impeachment process.
The current process for impeaching and removing a president from office is reliant upon political actors without any outside investigation, resulting in the politicization of any attempt to remove a president from office. This is further magnified by the requirement of two thirds of Senators voting for removal to be successful. Other political systems with easier paths to removal of ineffective or corrupt leaders have a much lower standard to meet, decreasing the likelihood that hyper partisanship will dwarf the gravity of the proceedings. The impeachment and removal process also do not have any sort of requirement of an independent investigation or procedure for looking into any presidential abuse of power.
The power to impeach a President is derived from the United States Constitution with the House of Representative being given the “sole Power of Impeachment”.[1] Impeachment itself is similarly limited by the Constitution to “Treason, Bribery, or other high Crimes and Misdemeanors.”[2] Impeachment, which is akin to an indictment by a grand jury, is followed by a trial to determine if the President should be removed from office. The Senate is granted the sole power to hold the trial by the Constitution, with the Supreme Court Chief Justice presiding.[3] Outside of these constitutional limits each house of Congress is allowed to set its own rules for each part of the process, with no oversight.[4]
Once the House decides to begin impeachment proceedings, there is no set path that must be followed.[5] Typically, impeachment proceedings begin when a Member of the House of Representatives submits a resolution calling for impeachment of an officer of the United States.[6] The Judiciary Committee has jurisdiction over the impeachment resolution, and the Rules Committee over a resolution calling for an investigation.[7] After the Rules Committee decides which Committee should investigate the charges, that Committee sends a report back to the Judiciary Committee.[8] The Judiciary Committee then votes on the charges and sends them to the full House.[9] Finally, the House votes whether to impeach.[10] However, the House majority is entitled to change these proceedings and can even directly vote on impeachment charges upon their introduction.[11] Nothing precludes the House from withholding the Articles of Impeachment from the Senate, as Speaker Pelosi recently demonstrated when she sent the Articles about a month after the House voted to impeach.[12] No set process or requirement of an outside investigation inherently politicizes the only option for limiting a president under the Constitution.
Once the Articles of Impeachment are sent to the Senate, the “what to do next” is entirely at the will of the Senate majority. Impeachment rules are set by the Senate and while they carry over from congress to congress, can be changed at will, as can all other Senate rules, by a majority vote, leaving the minority with little opportunity to influence the process.[13] The Senate rules currently require a trial followed by a vote on the Articles of Impeachment, which needs a two thirds majority, normally 67 Senators, for removal.[14] While Senators may face political and public pressure to hold a trial, there is no requirement that they do so.[15] Under pressure from several Republican Senators who wished to follow the precedent set by the Clinton trial, Senator McConnell elected to hold a trial before the full Senate.[16] The Senate could decide to simply dismiss charges from the House by a majority vote. There is similarly no requirement that the Senate hold the trial in any particular way. They can hold the trial with or without votes or simply have the trial before a committee and then vote on the Senate floor whether to remove from office or not.[17] This, again, serves to further politicize the process and provides ways for Senators to delay or stop an investigation.
The Chief Justice of the United States presides over the trial in the Senate but largely plays a ceremonial role.[18] The Chief Justice’s presence adds an air of impartiality to proceedings, but any ruling made can be overridden by a majority of Senators. The Chief Justice presides largely to prevent the Vice President, the President of the Senate, from presiding over his boss’ trial.[19] Yet, the Chief Justice is given no power and does not similarly preside over impeachment proceedings for any other officer, including the Vice President. The Chief Justice only presides if the President is being tried.[20] This could lead to the Vice President presiding over their own impeachment trial. Without the ability to force the Senate to allow witnesses or conduct the trial in a nonpartisan, nonpolitical manner the Chief Justice serves simply as a figurehead to lend an air of justice to the proceedings.
Senators are constitutionally required to swear an oath to affirmation when conducting an impeachment trial.[21] The current oath or affirmation to do impartial justice sworn by Senators is detailed in Impeachment Rule XXV.[22] Unlike criminal or civil trials, there is no process for ensuring the impartiality of the jury in this trial. This raises concerns over the impartiality of the Senators and if the oath is simply to provide an aura of fairness to the proceedings.
Much of the impeachment process is reliant upon political actors behaving in a manner which may conflict with their reelection. In the end impeaching and removing a president is a flawed process which is overly reliant upon political actors while attempting to retain an impartial sense of justice. Change is needed, particularly during an era of increasing Presidential power, to restore a proper balance of powers and prevent a president who would be worthy of removal from office from remaining in power.
[1] U.S. Const. Art. I, § 2, cl. 5.
[2] U.S. Const. Art. II, § 4.
[3] U.S. Const. Art. I, § 3, cl. 6.
[4] Sarah Tuberville, The Bottom Line on the Impeachment Process, The Project on Government Oversight (October 11, 2019), https://www.pogo.org/analysis/2019/10/presidential-impeachment-isnt-typical-neither-is-the-process/.
[5] Michael Green & Elizabeth Rybicki, Cong. Research Serv., R45769, The Impeachment Process in the House of Representatives 2-4 (2019).
[6] Id. at 2.
[7] Id.
[8] Id. at 6-7.
[9] Id. at 7-8.
[10] Id. at 10.
[11] Id. at 2-3.
[12] Li Zhou, Nancy Pelosi’s refusal (so far) to send the articles of impeachment to the Senate, explained, Vox (January 9, 2020, 7:50 AM), https://www.vox.com/2020/1/9/21056758/nancy-pelosi-articles-of-impeachment-trump-house-senate.
[13] Michael Green & Elizabeth Rybicki, Cong. Research Serv., R46185, The Impeachment Process in the Senate 2-4 (2020).
[14] Id. at 19.
[15] Andrew Prokop, Mitch McConnell’s impeachment trial strategy, explained, Vox (January 24, 2020, 12:10 PM), https://www.vox.com/2020/1/24/21075232/mitch-mcconnell-impeachment-trial-strategy.
[16] Lauren Fox, McConnell tries to set trial rules as pressure building on vulnerable senators, CNN (January 17, 2020, 2:00 PM) https://www.cnn.com/2020/01/17/politics/impeachment-trial-resolution-mcconnell-susan-collins/index.html.
[17] Green & Rybicki, supra note 13, at 21.
[18] Id. at 20.
[19] Id. at 21-22.
[20] Id.
[21] U.S. Const. Art. I, § 3, cl. 6.
[22] Green & Rybicki, supra note 13, at 7.
