Crimes and misdemeanours – An Irishman’s Diary on US presidents and impeachment

     Andrew Johnson: the 17th president of the US was impeached for dismissing a cabinet officer. Photograph: Library of Congress

Andrew Johnson: the 17th president of the US was impeached for dismissing a cabinet officer. Photograph: Library of Congress

 

Donald Trump is now the third president of the United States to have been impeached by the House of Representatives. The other two were Andrew Johnson in 1868 and Bill Clinton in 1998. Richard Nixon, faced with the certainty of impeachment in the House and conviction in the Senate, chose to resign in 1974 before suffering the indignity of removal from office.

There is some confusion about the provision for impeachment in the US constitution. It is not a conviction, but rather an indictment. After the House of Representatives votes to impeach a president – in effect, to lay charges against him – he must then be tried by the Senate. Only if the Senate decides to convict him by a two-thirds majority is he removed from office. That is a very high threshold.

What can a president be impeached for? The constitution says, “Treason, bribery and other high crimes and misdemeanours”, but the phrase “crimes and misdemeanours” is open to wide interpretation. In practice, it can mean whatever the House decides that it means when considering the impeachment of a president.

Impeachment, however, is not a trivial matter. Dislike of a president and disapproval of his policies are insufficient grounds for impeachment. Otherwise, the presidency would cease to be a separate branch of government and would be subject to the legislature. That is not the spirit of the US constitution. The framers of the constitution intended impeachment to be a mechanism to counteract an egregious abuse of presidential powers, whether or not that involved criminal activity. It carries no criminal sanction. It was designed as a bulwark against the tyrannical instincts of potentially very powerful presidents, an integral part of the framework of checks and balances that defines the US constitution and circumscribes each branch of government.

By this standard, Andrew Johnson – impeached for dismissing a cabinet officer, but acquitted by the Senate – was wrongly impeached. The cabinet officer in question, Edwin Stanton, had clashed with Johnson over the latter’s policy of reconciliation with the defeated southern states after the civil war. The House and Senate were more in sympathy with Stanton than with Johnson and so had earlier passed legislation limiting the president’s discretion to sack cabinet officers. That legislation was afterwards declared unconstitutional by the Supreme Court.

Likewise, Bill Clinton was wrongly impeached in 1998 for perjury and obstruction of justice following the Monica Lewinsky affair, since these crimes had nothing to do with the exercise of his presidential powers; he too was acquitted by the Senate. That impeachment was an overwhelmingly partisan affair, orchestrated by one party to bring down a president of the other party. The impeachments of Johnson and Clinton were thus, arguably, an abuse of the powers granted to the House of Representatives under the US Constitution.

In contrast, the effort to impeach Richard Nixon was in conformity with the constitution because, by interfering with and attempting to frustrate the investigation of the Watergate scandal by the relevant government agencies, he had clearly abused the powers of the presidency.

After Andrew Johnson’s impeachment, his presidency was saved in the senate by just one vote short of the two-thirds required to convict him.

In Profiles in Courage, his study of eight US senators and their courage in resisting pressures to abandon their principles, President Kennedy included among his heroes Senator Edmund Ross of Kansas, whose vote to acquit Johnson was the key one in that impeachment story. Kennedy wrote that Ross, more than any other senator, “endured more before and after his vote, reached his conscientious decision with greater difficulty and aroused the greatest interest and suspense prior to [his vote]”. His verdict on Ross was that by his vote he “may well have preserved for ourselves and posterity constitutional government in the United States”.

Later scholarship, however, suggests that Ross may not have acted for entirely high-minded reasons, and may even have been bribed to vote for Johnson’s acquittal.

Whether or not Trump’s impeachment is justified and consistent with the constitution, it is unlikely to result in his removal from office. The necessary two-thirds majority to convict him in the Senate is impossible unless enough Republican senators vote against him, and there is no indication at present that that will happen.

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