No, Impeachment Doesn't Work That Way

Let’s step back and talk about what’s what — the actual facts of how it works — when it comes to impeachment.

Despite the fact that most Democratic leaders insist that talk of impeaching President Trump is premature, some liberal corners won’t stop talking about it.

On May 17, Rep. Al Green of Texas called for the impeachment of the president in a floor speech. Rep. Ted Lieu tweeted that he was going to be reading a 2015 government report on “impeachment and removal” on Friday evening, May 19.

Then, the next day, Louise Mensch and Claude Taylor — a former conservative British MP and a Clinton White House volunteer office staffer, respectively — made a series of questionable allegations in a widely discredited report that took Twitter by storm.

In addition to claiming that multiple sources had told them “the House Judiciary Committee is considering Articles of Impeachment against the President of the United States,” the article asserted that sources had also told the duo that “the Supreme Court notified Mr. Trump that the formal process of a case of impeachment against him was begun.” Specifically, they noted, this meant Trump “was not able to use his powers of pardon against other suspects in Trump-Russia cases.”

They added that the sources told them that “the Marshal of the Supreme Court spoke to Mr. Trump.” (The pair have since claimed in a follow-up report that the marshal’s contact with Trump — on the tarmac at Joint Base Andrews, they write — was related to another fantastical set of circumstances involving a case out of Michigan challenging the president’s travel ban.)

But impeachment has not commenced, and while individual members might be reviewing the process, there is no formal action in motion. The Supreme Court would not notify the president of the start of an impeachment process, and his pardon powers are not impeded currently (or by impeachment). Finally, there is no reason to believe the marshal — responsible for court security — spoke with Trump about anything, let alone a nonexistent impeachment “case.”

In short, none of that appears to be true.

Hope Hicks, a White House spokesperson, discouraged BuzzFeed News from reporting on the impeachment issues — specifically, the Mensch and Taylor report. Of the report, however, she wrote, “[T]his is not only totally and completely false — it doesn’t make sense and it's not how the system works.”

There is, however, significant confusion and misinformation about the process. Let’s step back and talk about what’s what — the actual facts of how it works — when it comes to impeachment.

How does it begin?

Impeachment begins with a House resolution, which either calls for impeachment or directs the House Judiciary Committee or elsewhere to begin an impeachment investigation.

Many people have pointed to “page 17” of the report tweeted out by Lieu — a 2015 Congressional Research Service report called “Impeachment and Removal” — as evidence of many things: that a single House member can begin the impeachment process, that a non-member can do so, and that a grand jury charge can do so.

All of these things are true, but only in a narrow sense. The reality is less remarkable when one examines the actual precedents described in the report. These things can happen, but a member of Congress must still introduce the evidence at issue — a state legislative resolution, a grand jury report — as part of a resolution, or the single member’s motion must be introduced in the form of a resolution. Then, members of the House must vote on the resolution in order to begin the impeachment process, through committee referral.

There is no resolution. That has not happened.

Green gave a floor speech; he did not introduce a resolution.

For his part, Lieu was very clear about where he believes things stand.

“White House lawyers have now started researching impeachment proceedings. As a member of the House Judiciary Committee — which is where any impeachment proceedings would start — I thought it would be prudent for me to do the same research,” Lieu said in a statement to BuzzFeed News. “Other than declaring war, impeaching a president is the gravest decision Congress can make. We need to let the special counsel and congressional committees finish their investigations and then make a decision based on the facts presented to us.”

What about the Supreme Court?

In an attempt to sort of reverse engineer the initial Mensch-Taylor article, people have pointed to parts of a law review article by Martin Belsky as support for Mensch and Taylor’s claims about Supreme Court notification. In particular, these people have pointed to a specific passage in the article where Belsky writes that “[t]he legal reality is that the courts, particularly the Supreme Court, have become the arena for investigating the president.”

But reached by BuzzFeed News to discuss the article, Belsky was blunt.

“No, that is not what the article says,” he said of the Supreme Court notification claims this week.

“The courts would not [get] involved directly. My opening line in the article was ‘indirectly’ — not ‘directly,’” he said, pointing to a line in the introduction to his article, which says that “the Supreme Court has significantly, but indirectly, gotten involved in the impeachment process.”

Expanding on what that means, he added, “They can create information that the impeachment committee can use; that’s all I said.”

Belsky pointed to two examples: Supreme Court rulings during the Clinton and Nixon administrations. In the 1990s, the court ruled that Bill Clinton could not stop civil lawsuits relating to things he did before he became president from proceeding while he was president. Earlier, in the 1970s, the Supreme Court ruled that Richard Nixon needed to turn over Watergate tapes to a special prosecutor in response to a subpoena. In both situations, the Supreme Court decisions preceding impeachment ultimately produced information later relevant to impeachment consideration.

"The Supreme Court will not get involved in any decision where the conflict is between the Congress and the president about what information should be delivered or not be delivered," Belsky said, "but the courts have said [...] if an interest was important enough, they would be willing to order the president to respond to legal proceedings — and the evidence that comes out of those legal proceedings could then be used for impeachment purposes.”

In short, the way the Supreme Court gets involved in impeachment is, as Belsky said, indirectly — through related criminal or civil proceedings that lead to production of evidence that later can become a part of impeachment proceedings.

So, what happens?

“There will be someone, I trust this, there will be someone who will propose a resolution of impeachment,” said Belsky, who worked for the House Judiciary Committee in the latter half of the 1970s after President Nixon’s resignation. “It happened to every president; it’s one of those things that happens every time. Some person, some congressman, decided they wanted to make that suggestion.”

Then, however, things turn to the leadership — of the House and, subsequently, of the House Judiciary Committee — to decide whether and how to proceed. Given that the House is run by Republicans, it is less likely that anything would happen even if a resolution were introduced — and it would almost definitely take something drastic for that to change.

If a Judiciary Committee were considering an impeachment investigation, the committee chair would have to decide, as Belsky put it, “whether or not they’re going to collect evidence and ask the staff to prepare information.”

Then would come the big question in preparing articles of impeachment: Is what the committee finds impeachable conduct? The Constitution makes clear that the president and vice president can only be impeached for “treason, bribery, or other high crimes and misdemeanors.”

After going through the committee investigation, Belsky detailed, “The chair would then say, ‘Well, what does a high crime or misdemeanor mean?’ And the staff would have to say, ‘It is whatever you want it to mean.’ There is no law at all what a high crime or misdemeanor is. I mean, merely the fact the president of the United States tried to fire someone was sufficient for a high crime or misdemeanor against Andrew Johnson.” Johnson was the first president impeached by the House.

The second and only other president impeached, Bill Clinton, was impeached by the House in December 1998 on two charges — perjury and obstruction of justice — resulting from the investigation of an independent counsel, Kenneth Starr. Two other articles of impeachment failed, as the House voted against impeaching Clinton on a second perjury charge and a charge of “abuse of power.”

In other words, the resolution starts the investigation, which leads to a committee vote, which leads to articles of impeachment if the committee votes for them, which leads to a House vote.

All of that, however, is just the first step.

“An impeachment is like an indictment,” Belsky said. “It is a [finding] that there is sufficient evidence to refer it to the Senate for trial.”

Once the House votes to impeach, the House would select members to present the case to the Senate: the House managers. (In the modern era, the House has selected managers by resolution.)

And the Senate?

Despite all those steps in the House, the real action happens in the Senate, which has the power to remove the president (or others) from office.

The effort, however, comes about through a process decided upon by the Senate but with some limitations set by the Constitution. Namely, it takes a two-thirds vote for conviction in an impeachment trial that, in the case of the president, is overseen by the Chief Justice of the United States.

In addition to those constitutional limits, the process for the trial is set forth in Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials.

Once the impeachment articles are formally presented to the Senate, the Senate formally notifies the president or other official by summons of the pending impeachment trial. That is the first point in the impeachment process where there is any obligation to inform the individual being impeached of the impeachment.

The impeached individual can answer the charges, and the House managers can reply to that answer. All of that leads up to the “trial” — which can include opening arguments, presentation of evidence and examination of witnesses, and closing arguments. That is followed by closed deliberation and an open vote, article by article, on conviction. Conviction, by definition, would mean removal from office.

When it comes to trying to bring the courts into questions about the Senate impeachment trial — as Judge Walter Nixon did in the 1990s — the Supreme Court chose to stay out, declaring the question to be a “nonjusticiable” political question.

On the other side of that is the pardon power: The president’s pardon power is virtually unlimited as to federal crimes, but the Constitution does contain a significant limit: The president can exercise the power, “except in cases of impeachment.” While there is debate over what that means exactly, the debate mainly relates to whether the president can pardon himself or herself — not his or her ability to pardon others while under impeachment.

In Jeffrey Crouch’s 2009 book, The Presidential Pardon Power, he notes that the exception does not diminish the president’s authority to issue pardons of others — or even to pardon a person from criminal offenses relating to impeachment. Instead, he writes, the exception “only covers the political process of impeachment.” In other words, impeachment is a political process; the president does not have the power to overturn the will of that political process through a pardon.

How does it end?

As Belsky noted, Johnson was saved from conviction in the Senate by one vote: 35–19. Clinton had an easier time of it — defeating the perjury article 45–55 and the obstruction-of-justice article 50-50.

Ultimately, the impeachment process involves a number of difficult steps in both houses of Congress, all of which would be widely publicized.

No president in US history has been removed through impeachment.

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