With the emoluments lawsuit proceeding, interest in presidential impeachment is on the rise

With the emoluments lawsuit proceeding, interest in presidential impeachment is increasing. The impeachment process provides a mechanism for removal of the President found to have engaged in “treason, bribery, or other high crimes and misdemeanors.” The Constitution places the responsibility and authority to determine whether to impeach and to draft articles of impeachment in the hands of the House of Representatives. Should the House vote to impeach and vote articles of impeachment specifying the grounds upon which impeachment is based, the matter is then presented to the Senate for trial. Under the Constitution, the Senate has the sole power to try an impeachment. The decision whether to convict on each of the articles must be made separately. A conviction must be supported by a two-thirds majority of the Senators present. A conviction on any one of the articles of impeachment brought against an individual is sufficient to constitute conviction in the trial of the impeachment. Should a conviction occur, the Senate must determine what the appropriate judgment is in the case. The Constitution limits the judgment to either removal from office or removal and prohibition against holding any future offices of “honor, Trust or Profit under the United States.”

For background see these CRS reports, Impeachment: An Overview of Constitutional Provisions, Procedure, and Practice (Dec. 9, 2010, 98-186) and Impeachment and Removal (Oct. 29, 2015, R44260). See also, Frank O. Bowman and Stephen L. Sepinuck, ‘High Crimes & Misdemeanors’: Defining the Constitutional Limits on Presidential Impeachment, 72 Southern California Law Review 1517 (1999)(Arguing there are impeachable offenses for which Congress may constitutionally and properly decide not to impeach or remove a President.) and Michael J. Gerhardt’s The Lessons of Impeachment History, 67 George Washington Law Review 603 (1999)(“[M]y focus has been to clarify what constitutional structure and history has to teach us about the process of impeachment. … These lessons in turn help to clarify the kinds of questions that members of Congress should ask and the kinds of factors members of Congress should take into consideration when trying to decide whether to impeach and remove the President of the United States.”)

End Note: What role might SCOTUS play in a presidential impeachment? Presidential Impeachment: The Legal Standard and Procedure (Findlaw) notes that “the Supreme Court of the United States has decided that it should not review judicial impeachments, using the ‘political question’ doctrine to sidestep the issue. Walter Nixon v. United States, 506 U.S. 224 (1993). Concurring opinions by Justice White and Justice Souter in this case offer the following dicta on presidential impeachments:

The concurring opinion of Justice White indicates an unwillingness, on his part at least, to conclude in advance that a Presidential impeachment would be unreviewable. See Walter Nixon v. United States, 506 U.S. at 244. As stated by Justice White at footnote 3, page 247 of the Walter Nixon case:

“Finally, as applied to the special case of the President, the majority’s argument merely points out that, were the Senate to convict the President without any kind of trial, a Constitutional crisis might well result. It hardly follows that the Court ought to refrain from upholding the Constitution in all impeachment cases. Nor does it follow that, in cases of Presidential impeachment, the Justices ought to abandon their constitutional responsibilities because the Senate has precipitated a crisis.”

This view is echoed by Justice Souter in his concurring opinion in the same case: “If the Senate were to act in a manner seriously threatening the integrity of its results…judicial interference might well be appropriate.” Walter Nixon v. United States, 506 U.S. at 253.

— Joe

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