Docket # 17-003: Impeachment Watch, Part 1 of…?

Senate floor during impeachment of President Clinton, 1998

The Senate floor during impeachment proceedings, 1998. (Photo by: AFP/Getty Images)

Warning

The following podcast contains law words like “judiciary,” “rules of procedure,” and “criminal indictment.” Please don’t think that just because I’m using these words I’m giving you legal advice. I am not your attorney.

Intro

Coming up in this episode: the first installment of an occasional, recurring topic: Impeachment Watch.

I’m Geoffrey Blackwell, I’m still ironing the kinks out of this whole podcasting thing after three years, and you’re listening to Docket # 17-003 of All Too Common Law.

Opening Statement

No one who demands instant gratification should ever consider a legal career. If you are that person, and you don’t listen to this advice, I’m willing to bet all the money in my pockets against the money in your pockets that you’ll spend your whole life in a state of frustration that I can’t even imagine. Even in the criminal justice system, where the accused has the right to a speedy trial, speed isn’t usually measured in hours or days, or even weeks, but months. Months from arraignment to trial. Months from trial to sentencing.

But if you really want to put your capacity to delay gratification to the test, you have to work on civil litigation. Specifically federal, civil litigation. Federal civil trials are measured in years. Sometimes you might file a simple motion and you won’t get a decision from the judge until over a year later. And in the mean time there might be nothing else you can do on that case.

One of the cases I worked on way back when I first became a lawyer in 2014 finally came to an end last month. And I came into that case after it had already been going for over a year.

Attorneys know this. We factor it into our thinking. But our clients often don’t. If you committed to law school, and studying for the bar, and then waiting for the results, you’ve self-selected for being okay with delayed gratification. But the person who slips and falls in a grocery store, or who gets passed over for a promotion for being too old, too female, or too dark-skinned? That person hasn’t. That person has been going about their normal, 21st Century life and suddenly finds herself in need of a lawyer.

That’s when it becomes incumbent on those of us in the legal field to explain just how long the process can take. And it can take a very long time. As in you could have an initial consultation with a lawyer, go home, have sex, break a condom, and the resulting child could easily be in grade school before the lawsuit is finished kind of time.

So I have to urge everyone living through this moment in history to take a deep breath and plan on delaying your gratification for a bit because we aren’t going to put all this behind us anytime soon.

Impeachment Watch

Frustration is growing at the Republicans’ willingness to tolerate, and even sometimes encourage, Orangefinger’s flagrant abuses of power. Even prominent members of his own party are beginning to publicly acknowledge the precipice their tactics have brought us to. And while people are right to be frustrated, we can’t be surprised. Our system was intentionally designed to resist the urge to move quickly, and the process of impeachment is one of the ways the Constitution forces us to apply the breaks.

There are only two ways to lawfully remove a president from office. One is provided in the 25th Amendment, but that only allows the Vice President and a majority of the Cabinet to remove the president if they feel he “is unable to discharge the powers and duties of his office.”

The big one, of course, is impeachment. Article II, section 4 of the Constitution provides that a president “shall be removed from office on Impeachment for, and conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

Of course, this leaves open the question of what qualifies as “other high Crimes and Misdemeanors,” but we’ll come back to that.

Article I, section 2 gives the House of Representatives “the sole power of impeachment,” which is only the first step in the process of removing a president. Each article of impeachment, which the House votes on, sets out one charge, the basis for removal from office; the high crimes and misdemeanors that have to be proved. Once a majority of the House votes in favor of impeachment, things move over to the Senate.

Under Article I, section 3, the impeachment trial in the Senate is overseen by the Chief Justice of the Supreme Court and it takes a two-thirds majority of the Senate to remove the president.

It all sounds so simple.

It isn’t.

Only two presidents have ever actually been impeached: Andrew Johnson in 1868, and Bill Clinton in 1998. The vote to remove President Johnson failed by a single vote, 35 to 19, since there were only 27 states at the time. The vote to impeach president Clinton failed by a wider margin: 50 in favor, 50 against.

In July of 1974, the House Judiciary Committee approved three articles of impeachment against President Nixon and sent them to the floor of the House for a full, up-or-down vote, but Nixon resigned before that vote ever occurred.

For reasons I’ll get to in a bit, no two impeachments will ever be identical. Or even all that similar. Still, these three episodes in our history show us certain things we know must happen and give us the vague outline of the rest.

First, at least one bill has to be introduced in the House laying out a charge against the president, including the specific acts the president committed. The bill would then be referred to the House Judiciary Committee for consideration.

One industrious member of the House, Brad Sherman of the California 30th, has already taken this step. However, once referred to the Judiciary Committee, a majority of the Committee members would need to vote to approve the article of impeachment before it would go to the floor of the House for a vote. There are 41 members on the Judiciary Committee, meaning at least 21 must vote to approve the bill before it would go to the floor. And just FYI, there are 24 Republicans on the committee and only 17 Democrats, so the Dems would need to flip 4 Republicans on the committee in order for this impeachment bill to even get to the floor. That’s hurdle number one.

But let’s say, for the sake of argument, that there are four members of the Republican party willing to put “country first” and vote in favor of the bill. That sends it to the floor of the House, where it will again have to get a majority in order to pass.

For reference, the House has 435 members, meaning you need 218 in order to pass anything. Republicans currently hold 240 seats, though by the time any bill to impeach Orangefinger is voted on, it will likely be 241. Right now the far right party is one vote down because Jason Chaffetz resigned his seat on June 30. It’s overwhelmingly likely that Utah will elect another Republican to replace him. Hence, 241.

That means that the Dems will have to flip another twenty Republican House members, on top of the four members of the judiciary committee that would have already had to vote yes, if they want to have any hope of removing Orangefinger from office. Twenty House members from heavily gerrymandered districts around the country. Hurdle number two.

But, let’s say they manage to accomplish that. The House votes to approve articles of impeachment. Then things move to the Senate.

People often liken impeachment to a criminal trial, and in a certain sense, that’s true. Like a criminal indictment, articles of impeachment should clearly identify the law a president is accused of violating, and law out the specific actions the president allegedly took that violate that law. The president even pleads guilty or not guilty. If he pleads not guilty, there is a trial by a jury, but that’s basically where the similarities end, and even when it comes to the trial by a jury, the similarities vanish once you look past the abstract concepts and focus on the specifics.

Because in an impeachment trial, the entire Senate serves as the jury, and the rules of procedure that govern the trial are decided on by that jury, usually before they even know there’s going to be a trial.

For example, if Representative Sherman’s bill to impeach Orangefinger were approved by the house judiciary committee tomorrow, and approved by the full House of Representatives the day after that, the Senate’s trial of Orangefinger would be governed by a set of rules that the Senate last voted on in 2014.

Once the proceedings move to the Senate, basically everything else the Senate is doing stops. A committee of Senators is appointed to basically act as prosecutors, taking testimony from witnesses and presenting evidence. There are even opening and closing arguments. Then, once all the evidence is in, the Senators vote. Aloud. For each charge, the Senators are called by name and they state “guilty” or “not guilty.” If 67 Senators vote “guilty,” the President goes home.

In short, impeachment is a long process. It’s complicated. It’s difficult. It’s supposed to be. And, in all honesty, we shouldn’t expect it to happen until 2019. At the earliest. So it’s time for us all to practice delaying gratification for a while.

Oh, and lest we forget, the “light” at the end of this tunnel is a Mike Pence presidency.

Conclusion

That’s it for this episode of All Too Common Law, but I’ll be back soon with another installment. If you enjoyed this episode, remember to rate the podcast on iTunes and share it on Facebook and twitter.

If you’d like to weigh in on the issues I discussed in this episode, particularly if I got something wrong, or if you’d like to suggest stories for later episodes, you can email me at g-t-blackwell@AlltooCommonLaw.com, leave a voicemail at 609-616-A-T-C-L, or post a comment on All Too Common Law dot com. You can follow the podcast on twitter @alltoocommonlaw. The theme music for All Too Common Law is “The Time to Run” by Dexter Britain, and is used in accordance with the creative commons license.

Thanks for listening.

© All Too Common Law, LLC, 2017, all rights reserved.

Supporting Documents

Senate Manual: Impeachment, 113th Congress (PDF)

Impeachment: Select Materials, Committee on the Judiciary, House of Representatives, 93rd Congress:

Part 1 (PDF) (large)

Part 2 (PDF) (large)

Part 3 (PDF) (large)