I sit here in bed, in the United Kingdom, the day before our General Election in 2019 (11th December 2019, if anyone is interested), recovering from a short term illness. In the news for the last few days, there have been two political stories which have dominated: 1. The General Election here, and 2. President Donald Trump’s Impeachment Process in the United States of America. And that has reminded me, I have some reading to do outside of my University studies over Christmas; if I have time with all of my exam preparation.
Impeachment is a word that is not really used within the United Kingdom, but dominates more in the United States of America. Nevertheless, it has been used in the United Kindgom, but even less in recent years than it has been used in the United States, which is also very little! Yet, it is a fundamental part of America’s Constitutional Law, yet it is hardly spoken about. But what is really the process when a president gets impeached? Is it only a president who can be impeached?
Firstly, it is important to remember that the Impeachment Process is governed primarily by the Constitution itself, and not by the House of Representatives in the United States, like they would probably want you to believe. It is the Constitution which sets out the grounds for impeachment, which can be found Article II Section 4 of the Constitution of the United States, and reads the following:
“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.”
Gerald Ford famously said the grounds to impeachment, on grounds of “high crimes and misdemeanors” were much more open than this, stating that they were:
“Whatever a majority of the House of Representatives considers them to be at a moment in history.”
Although I do not think Gerald Ford is legally right, he does make an interesting point here. As the House of Representatives mainly govern the process, they are the ones which get to decide what is a “high crime and misdemeanor” at the time of the impeachment. They are the ones who ultimately define this process at the time and place, therefore it is ultimately up to them.
I think Cass R. Sunstein’s book, Impeachment: A Constitutional Guide, sums up the process rather well, and allows us to really consider what the fundamental problems are. It gives an idea of what a “high crime and misdemeanor” could be, and does stay that it does not have to necessarily be criminal, but can be morally wrong. This is exactly how the unsuccessful impeachment process began over former President Bill Clinton.
Much of the debate has considered whether President Trump has really committed an impeachable offence. As a famous Twitter user, Political Speaker (in his own sense) and former Comedian / Actor John Cleese replied:
“Now I understand! Clinton lied about a blow-job UNDER OATH. Trump refuses to say anything under oath, so his lies are NOT lies under oath.”
This was in reply to an earlier by another user, Steve Johnson, who stated in reply to an earlier tweet by Cleese:
“It wasn’t that Clinton LIED about the blow-job… He lied under oath!! That’s perjury. Trump never betrayed our defence policy. The US has a joint anti-corruption investigation treaty with Ukraine, and asking them to look into Burisma falls under that treaty.”
These tweets are not academic by any means and do not address the problems we face with impeachment directly. But what they do address is what the public may think: “Are the current grounds of impeachment suitable for a conviction?” If Clinton’s blowjob was not criminal or a ground for impeachment (by being neither a “high crime” or a “misdemeanor”), then will Trump’s impeachment crimes be seen in the same light. Nevertheless, it was about the lying under oath rather than the act itself which made it more of a legal issue.
But then, if we go back to consider Sunstein, he says this:
“Some offences that are not crimes are nontheless impeachable – punishing on political enemies, trampling on liberty, deciding to take a year off, systematically lying to Congress and the American people. Such actions count as ‘high misdemeanors'” (63)
This makes me believe that the “lying under oath” argument no longer stands, and it is the “systematic lying” which will be at the forefront of the impeachment process for President Trump. Whether the Mueller report will play into this, I do not know, but I think it will be likely…
So now, I go back to lying in bed, reading my book, and trying to recover from my illness. Obviously, the world will continue on around me. Politics will go on, and maybe the U.S. or the U.K. will descend into political crises, or maybe not… But these impeachment proceedings will not go away, and I am sure I will be commenting on them in days to come.
Bibliography:
Eric Black, ‘Gerald Ford on Impeachment: In a Practical Sense, He Nailed It’ (Minn Post, 9th December 2019) Accessed 11th December 2019 Available At: http://www.minnpost.com/eric-black-ink/2019/12/gerald-ford-on-impeachment-in-a-practical-sense-he-nailed-it/
Cass R. Sunstein, Impeachment: A Citizen’s Guide (Harvard University Press, 2017)
The Autonomous Lawyer 