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Impeachment In The U.S. What It Is And What It Isn’t

The White House
The White House, courtesy Flicker creative commons license.
lady justice, impeachment in the USA
Statue of lady justice

There are a lot of fanatical rants and much raving on social media about impeachment, President Trump, and the House Democrats.

MUCH of the excitement on both sides is NOT based on facts.

I don’t mean the facts about what someone has said, done, or not have done but about what impeachment actually is; what The Constitution says about impeachment; how it works; and why the investigation must continue or members of The House of Representatives would be violating of their oath of office.

MUCH of the hype online and hysteria in the more enthusiastic commentators is based on misinformation or relies on a willful misunderstanding of what impeachment is and what has happened thus far.

So, before everyone gets their knickers in a twist perhaps we should have a brief refresher on what impeachment really is, and later what constitutes a crime during an election campaign.

Once you know the law you are free to argue over the facts of the case all you want.

It doesn’t matter in the least what anyone says about the whistleblower. So lets set all that bickering and nonsense aside for now; it has nothing to do with the law.

Section 1 of The Constitution REQUIRES the legislature to supervise the executive (President Trump and his entire administration along with that of every other President).

If the House failed to investigate alleged misconduct by the executive branch or any individual in the government, that would violate their oath of office.

Impeachment

Impeachment is NOT a criminal charge, although criminal activity can lead to impeachment but even that isn’t required.

That means all the nonsense about The President NOT being treated fairly based on the 6th amendment or what people know about criminal trials from TV shows is meaningless.

In particular, the right to face accusers and have representation is wrong on two counts.

First, that doesn’t apply to a civil action.

Second, even in a criminal proceeding you only have a right to be represented during police interviews.

What is happening now is that a House Committee is INVESTIGATING, there have been no charges made, IMPEACHMENT IS the charges if and when there is an impeachment.

And that is all impeachment is, it is a charge of misconduct made by The House of Representatives against any Federal officeholder. If it were a criminal rather than a civil action, then impeachment would be the equivalent of an indictment.

In general, the major reasons for impeachment are all related to misconduct in office. They can also involve accusations of criminal activity, but the important part is whether something violates the oath of office or misconduct in office.

The Process Today

What is happening NOW is that a committee of The House is INVESTIGATING possible misconduct in office.

IF the committee decides by majority vote that there may have been misconduct, THEN it sends a recommendation to the entire House listing the Articles of Impeachment. IF those are accepted by the House, then President Trump has been impeached, that is, he has been formally charged with misconduct in office.

If that happens, THEN the Senate must hold a trial on those charges. At that point, and ONLY at that time, an actual trial begins and all the rights to face accusers and present evidence in defense go into action.

The trial would be presided over by The Chief Justice of the Supreme Court, NOT a Senator, and NOT The President of the Senate (the Vice President).

IF convicted in The Senate, there is no jail time, there is no probation, there is no fine, the MAXIMUM and in fact, the ONLY punishment for being convicted of impeachable offenses is being banned from holding “a position of trust” in the government.

Once out of office, either by failing to be reelected or adjudicated as guilty in the Senate, the former officeholder can still be criminally charged for any alleged offenses.

It is important to remember that President Clinton was impeached, only the second U.S. President to be impeached. He was NOT convicted by a 2/3 vote in the Senate and served out his full term.

The Basic Law

Apparently, this bears repeating, there has been no impeachment.

Impeachment IS a set of one or more specific accusations of misconduct and MUST be voted on by the House before it is an impeachment. Until that vote adopts the Articles of Impeachment there is only an investigation just like any local police investigation of a possible crime.

The Senate then MUST conduct a trial and if convicted the President, or other government officials, such as a Supreme Court Justice SHALL be removed from the present office and the maximum result includes also being banned from holding any new position of trust in the government.

Recent Impeachments

It might be useful to recall that President Nixon was NOT impeached. His crimes were so egregious and obvious that he resigned rather than even let the House impeachment vote take place, let alone face trial in the Senate.

The three articles of impeachment voted out of committee (but never voted on (impeached) by the House were:
obstruction of justice
abuse of power
contempt of Congress

Both obstruction of justice and contempt of congress resulted from President Nixon refusing to provide records that the House committee requested and subpoenaed as part of the investigation.

That may sound familiar because President Trump also refuses to comply with Congressional requests for records and refuses to let subordinates respond to subpoenas which all legal precedent says is obstruction of justice AND contempt of Congress.

It doesn’t matter whether any crime has been committed; merely refusing to cooperate with the investigation is what is known as Black Letter Law, that is, crimes that are indisputable, essentially illegal on their face, not subject to question or trial of fact.

Abuse of power can be much more difficult to prove.

So, why is President Trump so upset by the possibility of being Impeached? While in office the Justice Department policy is that he can’t be indicted for any crime.

Impeachment not criminal so no double jeopardy

Remember, while both obstruction and contempt can also be crimes, impeachment is not a criminal action and therefore double jeopardy is NOT involved, someone removed from office can still be criminally tried.

But while a serious crime is not required to be convicted of impeachment by the Senate, by definition in The Constitution, a crime, even a minor one CAN justify impeachment.

Basis of Current Investigation

So, what possible crime has President Trump potentially committed most recently?

President Trump has stated publically before cameras, often on the South Lawn of The White House that he wants foreign governments including, Australia, Ukraine, UK, and China to investigate the Bidens. His attorney Rudy Giuliani has bragged about doing the same on behalf of President Trump.

Giuliani also told Fox News that his “mission is to disrupt the world.”

Federal Election Laws

Unfortunately, it is a criminal act to accept or even just to ask a foreign government or even a foreign individual for assistance in a U.S. election. [Newsweek]

While asking “a favor” of Ukraine may seem no big deal to some supporters, in fact, it was a criminal act to even ask a foreign government to investigate a political rival.

It does not matter whether there was any pressure involved. If there was, then that may constitute abuse of power, but simply asking is a crime.

Accepting $1 from The Prince of Wales by the Sanders election committee would be a crime.

Since research is expensive, asking a foreign government to conduct research related to an election is a violation of U.S. law.

Specifically. It is a violation of the Federal Election Commission rules. A criminal violation. People go to jail for that.

In fact, Donald Trump’s personal lawyer, Michael Cohen is currently in Federal prison for violating campaign finance rules as well as bank fraud and lying to Congress.
https://en.wikipedia.org/wiki/Michael_Cohen_(lawyer)

As FEC chair Ellen Weintraub recently said, “It is absolutely illegal for anyone to solicit, accept, or receive anything of value from a foreign national in connection with any election in the United States.”

Not just a big election, but ANY election, even for dog catcher.
So all the arguments about whether there was pressure, or a deal, or promise of foreign aid. It doesn’t matter if there was a quid pro quo, any offer to help Ukraine ONLY if they dug up dirt on the Biden family, OR NOT.

Merely soliciting, that is, asking for such help is already a crime.
The President has made it very clear that he is violating this rule but impeachment is not a criminal charge or trial, it is political.

Every President has probably committed crimes while in office.

But while it is virtually impossible to go through life without committing crimes, at least misdemeanors (Speeding? Lying to get out of jury duty? etc.) Impeachment is reserved for officeholders which are generally thought to have violated their oath of office and thereby endangered the country.

NOTE, someone is certain to point out that a former British secret agent compiled the infamous dossier against candidate Donald Trump. THAT was NOT an illegal campaign contribution, it was paid research. A candidate can pay ANYONE to do research. What they can’t do legally is ask foreign governments to conduct an investigation which would benefit their campaign.

President Trump has done so repeatedly in public which is why the House is now investigating him as required by their oath of office to preserve, protect, and DEFEND the Constitution.

You also can’t bribe or extort them to do so but THAT is a question of fact for trial if pursued.

All of the relevant laws about removal from office and how an impeachment works is covered in Article One of the U.S. Constitution. The relevant parts are a very quick read and it comes as a surprise to many, actually quite simple and easy to understand.

Article 1, Section 2 Clause 6, “The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.”

Article 1, Section 3, Clause 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.”

Article 1, Section 3, Clause 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.”

Article 2, Section 4 “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.”