What’s Impeachment Got To Do With It

J. Ellis
J. Ellis
Aug 22, 2017 · 7 min read

. . . that word, I do not think it means what you think it means.

In todays’ world of incendiary rhetoric and 24/7 BREAKING NEWS, words like “impeachment” get thrown around with incredible frequency. But despite the causal use of the term to express dislike or mistrust of a politician, impeachment is actually an intentionally complex process, different from what most casual “impeachment”-callers envision. In fact, there are three distinct processes that are often conflated into one President-removal-frankenstein: censure, impeachment, and 25th Amendment removal.

The first thing to understand is that there are multiple safeguards built into all of these processes to make sure they can’t be used as loopholes to the system of checks and balances. For example, we would not want Congress ousting a President’s Cabinet or the President himself because he failed to sign a bill Congress had passed.

Additionally, removing a President requires Congress or other government officials to override the votes of the majority of our nation and remove a democratically-elected President from power. This is the reason why removal is so difficult to successfully use. It is no casual thing — this is a serious procedure to be used only in the most egregious of circumstances.

What follows is a brief primer on what impeachment is, how it works, and the potential outcomes. I have also included some quick notes on censure and 25th Amendment removal, which has been in the news a fair amount.

I promise I will keep this high-level and as non-boring as I possibly can . . . but I am only human. For those interested, I have included a list of articles at the end with more detailed analysis.

Before we dive in, I want to make clear that impeachment is different from censure.

A censure is essentially a statement from Congress saying they disapprove of action taken by a member of the government. It doesn’t actually DO anything. The statement itself is the punishment and is intended as a public reprimand.

A censure needs a majority from at least one house of Congress (either the House or the Senate). The Senate has an interesting page on censure available here, but it is notable that a President has not been successfully censured since James Buchanan (1860). This does not mean that more recent disapproving Congressman and woman have not tried to bring censures — many Presidents have had censure motions introduced unsuccessfully against them, including Barack Obama most recently.

Even if a censure motion is approved and a President is censured, this does not lead to impeachment proceedings. They are two entirely different processes.

So what exactly is impeachment?

In its simplest form, impeachment is the process of removing a government official from power for certain crimes and/or abuses. It is not reserved for the President, it can be used to remove federal judges, members of Congress, and members of the President’s Cabinet (among others).

Under the Constitution, the standard for impeachment is being tried and convicted of “treason, bribery, or other high crimes and misdemeanors.” If you find yourself asking: what is included in “other high crimes and misdemeanors,” you are not alone. The phrase has never been fully defined. I will spare you the entire history here, but I have linked to some articles at the end that delve into this further for those interested.

How does impeachment happen?

Impeachment involves both houses of Congress, which have separate and distinct roles to play. But everything starts in the House of Representatives.

  • The House introduces an impeachment resolution: Either an individual Congressman/woman introduces a resolution OR the House as a whole passes a resolution that starts an investigation that could lead to impeachment charges.
  • The impeachment resolution is sent to the House Judiciary Committee: The Committee determines whether to draft official articles of impeachment or whether to end the investigation without any charges. If the Committee does not pursue articles of impeachment, the process ends and there is no further action.
  • The House votes on the articles of impeachment: If the Committee drafts articles of impeachment, the articles are sent to the full House and put up for a vote. To successfully move forward a majority of Congressman/woman must vote “yes” on the articles. If that happens the person has been “impeached.” If not, the articles are dead (just like any other failed bill) and the process ends with no further action.
  • The House assigns “managers” to serve as prosecutors in the impeachment trial: The House chooses the Congressmen/women who will act as prosecutors when the case is brought before the Senate (just like the prosecutors you see on Law and Order, but with less sound effects and more ability to change the face of an entire nation). The number of “managers” and their political party vary, but it is usually odd numbered and they all need to support the impeachment proceedings.
  • The impeached person is placed on trial before the Senate: The Senate acts as the courtroom for impeachment proceedings, with all Senators serving as the jury. When the impeached individual is the President, the Chief Justice of the Supreme Court oversees the proceedings.
  • The Senate votes on whether to remove the impeached person from office: To convict the impeached person and remove them from office, 2/3rds of the Senate must approve. In extreme cases, the convicted person can also be barred from holding elected office in the future.
  • “There is no appeal.” This ominous quote from the end of the Senate’s page on impeachment sums it up. Impeachment’s are final. There is no ability to appeal the ruling — it is one and done.

Which Presidents have been impeached?

Only two sitting Presidents have been impeached and both were acquitted in the Senate, meaning they were not removed from office.

Andrew Johnson (1868) — impeached by the House for attempting to remove his Secretary of War without the approval of the Senate (this law no longer exists and the case is actually interesting if you want to give the wikipedia page a skim here).

Bill Clinton (1998) — impeached by the House for perjury and obstruction of justice (two other counts failed to pass the House and were not included in the final impeachment). There are ample sources on the Clinton impeachment, but there is a good wikipedia page for those looking for a quick recap. Or you can use the pre-wikipedia method of asking your parents about it, who I guarantee remember the whole debacle.

How is this different than 25th Amendment removal?

The 25th Amendment of the Constitution contains a provision that would allow the President to be removed by the Vice President, a majority of the President’s Cabinet, and Congress. However, this is extremely unlikely and has never been used before. It would work like this:

  • The Vice President and majority of the Cabinet officers send a written declaration to Congress: The written declaration must state that the President is unable to perform the duties of office. The Cabinet officers are the heads of federal government agencies (see line of succession section below).
  • The Vice President immediately assumes office as acting President.
  • If the President submits a written declaration to Congress saying he is able to perform the duties of office, the President assumes the Presidency again.
  • If the Vice President and majority of Cabinet Officers still hold that the President is unfit, they have 4 days to submit ANOTHER written declaration to Congress.
  • Congress has 48 hours to assemble and must make a decision within 21 days. If 2/3rds of both the House and the Senate agree the President is unfit, then the Vice President assumes the Presidency again. If either the House or Senate doesn’t receive the required 2/3rd supporting votes, the President remains in office.

The history of this amendment is more geared towards the ability to remove a President for mental incapacity as opposed to misconduct. Additionally, this would require the President’s own appointed Cabinet officers and political party (2/3rds of Congress will require a lot of bipartisanship) to vote for removal.

Despite this being the popular talking point of the last several days, Amendment 25 removal is extraordinarily unlikely for all of these reasons.

What happens if a President is removed from office?

The Vice-President becomes the next President. There is no re-vote or new, special election. If the Vice President is similarly removed or unable to become the President for any reason, the Presidency passes through the official line of succession as follows (I have included the current individuals for reference):

  • Speaker of the House — Paul Ryan
  • President pro tempore of the Senate — Orrin Hatch
  • Secretary of State — Rex Tillerson
  • Secretary of the Treasury — Steven Mnuchin
  • Secretary of Defense — James Mattis
  • Attorney General — Jeff Sessions
  • Secretary of the Interior — Ryan Zinke
  • Secretary of Agriculture — Sonny Perdue
  • Secretary of Commerce — Wilbur Ross
  • Secretary of Labor — Alex Acosta
  • Secretary of Health and Human Services — Tom Price
  • Secretary of Housing and Urban Development — Ben Carson
  • Secretary of Transportation — Elaine Chao (born outside of the US and is, therefore, not eligible to assume Presidency)
  • Secretary of Energy — Rick Perry
  • Secretary of Education — Betsy Devos
  • Secretary of Veterans Affairs — David Shulkin
  • Secretary of Homeland Security — Elaine Duke

If you don’t like this list of names, I don’t know what to tell you — I am just here to deliver the facts.

Take Away Points:

From the recent coverage, calls for, and casual conversations around impeachment, a person would be left with the impression that Congress can get together, vote a President out in the space of an afternoon, and hold a new election. This could not be further from the truth. And without a clear understanding of what impeachment actually is, the people cannot clearly identify what they are asking for or what they should expect.

I have seen too many political processes end in disappointment, with people on the “winning” side left confused when the thing they spent time and energy working toward reveals itself to be different than the realistic outcome. And these misconceptions do not rest solely with the people, there is a draught of simple to follow coverage explaining how things actually work. There are a few good articles I have found (and I am sure there are others out there!), but even those sometimes seem geared toward those already in the know.

To the extent this article can be helpful in starting to mend the gap between expectation and political reality, I gladly send it forth into the internet.

For those interested in a few sources I found interesting:

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