After President Trump’s Ukraine scandal drove a new wave of Democrats toward impeachment, on Tuesday afternoon House Speaker Nancy Pelosi finally announced that the House will launch a formal impeachment inquiry. It’s obviously a huge step, but there’s still much confusion about what exactly presidential impeachment means, how the process works, and what consequences Trump is likely to face. Since it’s only happened twice in U.S. history (to Andrew Johnson and Bill Clinton, with Richard Nixon avoiding a near-certain impeachment by resigning), it’s not the sort of thing you get a lot of detail on in high-school American history classes. Here’s what you need to know.
What Is Impeachment?
Impeachment is to official misconduct what an indictment is to crime: a statement of charges leading to a trial. The procedure for congressional impeachment of Executive branch officials (including but not limited to the president) was spelled out in some detail in the U.S. Constitution, as the official House of Representatives history observes:
Impeachment comes from British constitutional history. The process evolved from the 14th century as a way for parliament to hold the king’s ministers accountable for their public actions. Impeachment, as Alexander Hamilton of New York explained in Federalist 65, varies from civil or criminal courts in that it strictly involves the “misconduct of public men, or in other words from the abuse or violation of some public trust.” Individual state constitutions had provided for impeachment for “maladministration” or “corruption” before the U.S. Constitution was written. And the founders, fearing the potential for abuse of executive power, considered impeachment so important that they made it part of the Constitution even before they defined the contours of the presidency.
Impeachment is not, to be clear, the removal of corrupt presidents or other officials, but simply the adoption of charges by the House, triggering a trial in the Senate. So Johnson and Clinton were impeached, as the House passed articles of impeachment against them; though they were subsequently acquitted by the Senate, the term still applies. The Constitution requires a two-thirds vote in the Senate to consummate an impeachment with removal from office, but the document is otherwise silent about procedures.
What Are Grounds for Impeaching a President?
Article II, Section 4 of the Constitution specifically mentions “treason” and “bribery” as grounds for impeachment, but it also stipulates that “other High Crimes and Misdemeanors” are sufficient. It’s important to understand that when the Constitution was adopted, the term “misdemeanors” had not assumed its later meaning as a type of criminal offense. According to the most common interpretation of this language, impeachment does not require the allegation of a crime, but simply some grave act or pattern of misconduct deemed by Congress as necessitating this radical remedy.
Under House rules and long-standing practice, the House lays out the grounds for impeachment, then holds a simple majority vote. If the articles of impeachment are approved, they’re then presented to the Senate for further action.
In 1868, the House approved 11 articles of impeachment against President Johnson, mostly revolving around his defiance of the (quite possibly unconstitutional) Tenure of Office Act, which restricted the president’s power to dismiss Cabinet members (the underlying “offense” was clearly Johnson’s efforts to obstruct congressional Reconstruction of the former Confederate States).
In 1998, the House approved just two articles of impeachment against Clinton: one alleged that he committed perjury in grand jury testimony when questioned about his sexual relationship with intern Monica Lewinsky, and the second alleged obstruction of justice to hide evidence in that case. It was a highly legalistic argument, which helped buttress the false public impression that without “crimes” there can be no impeachment.
How Does Impeachment Begin?
This has been perhaps the most confusing aspect of the current debate over impeaching Trump. In past presidential impeachments, the House has formally voted to authorize the Judiciary Committee to initiate impeachment proceedings. But this step has been skipped on occasion in the impeachment of judges, and it’s entirely the product of custom and internal House rules (themselves interpreted and controlled by the House majority at a given time).
After the Mueller Report was released and the special counsel himself had finally testified before Congress, House Democrats were deeply divided on whether to “initiate” impeachment proceedings, with Pelosi and House Judiciary Committee chairman Jerrold Nadler voicing reluctance to go in that direction. Then, in what was either a clever or devious maneuver, depending on your point of view, Nadler let it be known in early August that his committee was already engaged in an impeachment “inquiry,” as CNN explained at the time:
The House Judiciary Committee is now engaged in a full-blown investigation and legal fight with the goal of deciding whether to recommend articles of impeachment against President Donald Trump by the end of the year, according to Democratic officials involved in the effort …
As additional House Democrats continue to call for the House Judiciary Committee to launch an impeachment inquiry — which more than half the caucus now supports — Democratic sources say the issue is essentially moot since what the panel is doing is basically that: investigating whether Trump should be impeached.
As I noted at the time, “According to this interpretation of the situation, there’s no need to ‘launch’ anything, or to put House Democrats on the spot with some vote to begin ‘proceedings’ that are already underway.” House Republicans might (and did) complain that a vital step had been left out, but there wasn’t much they could do about it.
But what had looked like a successful effort to postpone any House vote until actual articles of impeachment were considered unraveled under the pressure of Trump’s scofflaw behavior – specifically, the Ukraine scandal and rising House Democratic sentiment favoring a more aggressive posture. While Pelosi’s announcement of a formal impeachment inquiry implicitly endorses Nadler’s claim that ongoing House investigations are an impeachment probe, the House could return to its old procedures and formally authorize such proceedings.
There’s been further confusion about the scope of the impeachment inquiry. During her September 26 press conference (the first she held after announcing the inquiry), Pelosi suggested a phased operation, as I explained:
… Speaker Nancy Pelosi made it clearer than before that the impeachment inquiry she announced yesterday would — for now, at least — focus exclusively on the president’s dealings with Ukrainian President Volodymyr Zelensky. Indeed, she indicated that the House Intelligence Committee would have the primary responsibility for uncovering the facts that might or might not justify actual articles of impeachment (she was adamant that no decision had been made on the ultimate outcome of the “inquiry”).
So for the time being, Jerrold Nadler’s Judiciary Committee (normally the focal point of impeachment proceedings) will be on hold, except for its ongoing investigations of the president and his administration.
That could change later, if House Democrats do decide to pursue articles of impeachment.
Pelosi did hold open the possibility that previous examples of the president’s “lawlessness” could be the subject of impeachment articles if the House went in that direction, as many of those who supported impeachment before the Ukraine scandal broke into public view are insisting upon. But she seemed determined to convey a belief that the public would see Trump’s behavior in the Ukraine incident as reflecting a “different level of lawlessness,” just as she did in “crossing the Rubicon” from opposition to impeachment proceedings to support for them.
There are indications that Pelosi has asked other committees that have been investigating Trump or his administration to put together materials supporting articles of impeachment that could be considered by the Judiciary Committee once the Ukraine investigation is complete.
How Long Do Impeachment Hearings Last?
Some Democrats resisting impeachment fear that it’s too late, or too deeply into the 2020 presidential election cycle, to begin impeachment hearings. Some point to the terrible performance of House Republicans in the 1998 midterms, which were overshadowed by impeachment talk (Clinton’s impeachment was opposed by a majority of Americans, much as polls suggest the public opposes the impeachment of Trump today).
Another consequence of the hazy rules governing the steps leading up to impeachment is that there’s no clear expectation about the duration or depth of impeachment hearings. As Vox’s Andrew Prokop has pointed out, the two most recent precedents point in very different directions:
The Nixon inquiry was an intensive, lengthy investigative effort that proceeded alongside the special prosecutor’s continuing grand jury investigation into the Watergate break-in and cover-up and a Senate select committee inquiry into the matter. The House Judiciary Committee opened it in October 1973 (after the Saturday Night Massacre), the House voted to back it in February 1974, and it lasted until July 1974. Major new revelations about the scandal kept breaking throughout that period, and eventually, the committee got to review secret information from the grand jury probe.
The Clinton inquiry, meanwhile, was essentially just a decision about whether to impeach the president based on the findings of independent counsel Ken Starr’s report (which alleged Clinton committed perjury and obstruction of justice to try to cover up his affair with Monica Lewinsky). That impeachment inquiry was officially opened in the Judiciary Committee after votes by the committee and then the whole House in October 1998. The committee held a few weeks of hearings and heard witness testimony (including from Starr), but it wasn’t really a new investigation, and it was over by mid-December.
It appears House Democrats are trying to balance the need for relatively simple and expeditious proceedings with concerns that they might appear to be “rushing to judgment.” Here’s the current thinking about the pace:
On the other hand, you could see the pace dictated by public opinion, with Pelosi in particular looking for evidence that the hearings were softening independent and even Republican opposition to impeachment.
How Does the House Vote on Impeachment Itself?
Under all precedents, the Judiciary Committee will debate and vote upon each proposed article of impeachment, and if any are approved (and of course there would be no committee vote unless success was assured), they are reported to the full House for debate and a conclusive vote for impeachment.
Typically, the party pushing impeachment will favor a tight set of resolutions that revolve around a clear pattern of malfeasance, and that might even attract members of the president’s party (or at least some of his supporters).
In July of 1974, the House Judiciary Committee approved three of five proposed articles impeaching Nixon. The first to draw a vote, alleging presidential obstruction of justice, attracted six of the committee’s 17 Republicans. Though two other articles were subsequently reported, one was sufficient for impeachment and a Senate trial, so the committee vote led directly to Nixon’s resignation before the House could formally impeach him.
In Clinton’s case, the Judiciary Committee approved four articles of impeachment, with committee Democrats voting en bloc against all of them. Enough Republicans defected on the House floor to defeat two of these articles, and only five Democrats voted for the crucial article impeaching Clinton for lying under oath to a federal grand jury about his relationship to Lewinsky.
If a President Is Impeached, Does the Senate Have to Hold a Trial?
Most experts believe the provisions made for an impeachment trial in both the Constitution and in Senate rules mean some sort of proceedings are obligatory. But then we are talking about Mitch McConnell being in charge, and even if you think he is required to hold a trial, who is going to enforce that requirement? The courts are likely to stay away from a conflict as a “political question.”
But McConnell has publicly talked about holding impeachment trials as though it’s not a real question, most recently describing it as obligatory:
You’d also have to figure Republicans will want some deliberations, however superficial, so they can claim Trump has been exonerated.
There are not, however, constitutional or Senate provisions requiring a trial of any particular length or depth. And it could go pretty fast, as I noted earlier this year:
Chief Justice John Roberts would preside over any impeachment trial, but Mitch McConnell would determine the schedule and the Senate itself could by a simple majority vote (almost certainly a party-line vote) control evidence and witnesses. In the unlikely event there are four Senate Republicans (the minimum requisite number to deny their party a majority) willing to buck McConnell on any particular controversy involving impeachment, the odds are very high such dissenters will want a quick trial to limit partisan blowback.All in all, it’s clear that if the House impeaches Trump, you can expect a Senate acquittal with as much speed as any kangaroo court could devise.
If there is anything like a real trial, it is assumed the House’s representatives (or “managers”) will be given an opportunity to present and explain the articles of impeachment on which the trial will be based, much like prosecutors in criminal cases (though in the Clinton case, the Senate chose not to let the managers call live witnesses). The president typically can choose representatives to present his case (Clinton’s defense was led by attorney Charles Ruff, whose team included former Arkansas senator Dale Bumpers). According to precedent, senators act like jurors, making no public statements on the proceeding until after their votes are cast (in the Clinton case, senators spoke before the vote in a closed-door session, with their remarks published in the Congressional Record after the vote).
The Johnson impeachment trial in 1868 lasted from March 5 until May 16, when the Senate’s first crucial “test vote” on a catch-all article of impeachment failed by one vote. Ten days later the Senate voted predictably to acquit on two other articles, and subsequently voted for general acquittal and adjournment.
Clinton’s impeachment trial was more hurried: It began on January 7, 1999, when presiding officer Chief Justice William Rehnquist was sworn in, and ended on February 12, with Clinton’s easy acquittal on both articles (45 senators, all Republicans, voted for his guilt on the perjury article, with ten Republicans defecting; and 50 senators vote for the obstruction article, with five Republicans defecting).
What Are the Odds the Senate Would Vote to Convict Trump and Remove Him From Office?
As indicated above, the odds of Trump being removed via impeachment range from “slim” to “none.” It would take only 34 of 54 Senate Republicans to acquit Trump, and the idea that 20 senators from a party dominated by this president like a Bronze Age warlord would defy the MAGA base and try to defenestrate him on the brink of an epochal presidential election is, in a word, laughable. And that’s true no matter what Nadler’s committee uncovers, or what journalists dig up, or what the president himself admits in one of his moments when his belief in his own invincibility overcomes all good judgment (“I could stand in the middle of Fifth Avenue and shoot somebody and wouldn’t lose any voters,” he famously boasted). Perhaps there is a theoretical set of events that could rapidly erode Trump’s partisan invincibility the way Watergate gradually eroded Nixon’s, but it’s hard to imagine and impossible to expect.
So How Is This All Likely to End?
Assuming Trump is impeached and then acquitted, this saga will conclude with the 2020 presidential election, and with Trump’s ejection from office or his triumphal reelection. It’s possible, of course, that whether or not the current impeachment drive goes anywhere, a second-term Trump could get himself impeached (indeed, some Democratic opponents of impeaching Trump now think this option should be saved for later, when his conduct would undoubtedly become far worse). But most likely his impeachment, or even impeachment hearings, will reinforce the sense that the 2020 election is a high-stakes referendum on the sprawling corruption, norm-breaking, and racist and sexist attitudes of the 45th president.
It’s the possible impact of impeachment on Trump’s reelection that has caused so many arguments among Democrats (mostly in Washington, since rank-and-file Democrats have been trending pro-impeachment for some time). Best we can tell from polls, the public is not making any sort of fine distinctions between “initiating impeachment proceedings” or impeaching Trump or removing him from office. Once Democrats head decisively down that road they may as well follow it until its logical end. Some sincerely believe impeachment will hurt Trump in 2020 by focusing public attention on his misconduct and conveying a clear sense of Democratic purpose in holding him and his corrupt hirelings accountable (or conversely, that failing to impeach Trump will depress Democratic “base” enthusiasm). Others (most clearly presidential candidate Elizabeth Warren) argue that it’s a constitutional or moral duty even if it helps produce the horror of a second Trump term.
Any way you look at it, the implications of what House Democrats now decide to do could be momentous yet hard to adjudge until the ultimate deal goes down.
This piece has been updated to reflect ongoing developments in the impeachment story.
More on the Trump-Ukraine Scandal
- Author Tom Mueller on the ‘Minefield’ Facing the Trump-Ukraine Whistle-blower
- Poll: Only a Minority of Republicans Are Sure Trump Is Innocent
- A Fourth Associate of Rudy Giuliani Has Been Arrested