Donald Trump appears more and more likely to be impeached by the day. However, what impeachable offenses has he actually committed? Unfortunately, the answer to that question is a hazy one, thanks to ambiguous language in the Constitution and the fiercely partisan nature of the impeachment process.
“High Crimes and Misdemeanors”
The process for impeachment is laid out in the Constitution. Article II, Section 4 of the Constitution states: “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.”
Treason is the only crime specifically defined in the Constitution: “levying War against [the USA], or in adhering to their Enemies, giving them Aid and Comfort.” While Trump’s dealings with Russia are, by some interpretations, treasonous, none of his Russia dealings rise to the level of waging war or giving them aid and comfort, according to Rolling Stone writer Carl Skutsch. Similarly, Trump has not been accused of bribery, as of this writing. So treason and bribery are both off the table.
As for “high crimes and misdemeanors”: Skutsch notes that this phrase derives from a concept in British law at the time of the writing of the Constitution.
The term “high crimes” doesn’t refer to the severity of the crimes, says Skutsch, but rather, the status (viz, high and mighty) of the person committing them. So in other words, any crime committed by the President is a “high crime/misdemeanor.”
What this means in a practical sense is open to interpretation. Some view that the President should only be impeached in the cases of actual criminal offenses for which you can be tried in a regular criminal court (such as obstruction of justice, in the case of Bill Clinton in 1998). Others believe, a Gerald Ford famously said back in 1970, “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”
Trump’s Alleged Offenses
So what “high crimes and misdemeanors” has Donald Trump allegedly committed that could get him impeached? Here, courtesy of Harvard Constitutional Law Scholar Laurence H. Tribe, writing in the Washington Post, are the two biggest issues.
The “Emoluments Clause”: This is a tricky legal quagmire that could take years to undo in a court of law (and it bears noting that the standards of evidence in a criminal court vs. a trial in the U.S. Senate are worlds apart), but basically, Trump’s ownership of businesses in foreign countries puts him in violation of a Constitutional clause that prevents him from earning money from foreign sources while he’s President.
Obstruction of Justice: Trump fired FBI Director James Comey for reasons that seem to change by the minute. By some observations, Trump was trying to get rid of Comey for his refusal to let go of “this Russia thing,” as Trump himself called it. By just about any standard, says Tribe, this is the textbook definition of Obstruction of Justice.
The Impeachment Process
If Donald Trump is impeached, that doesn’t necessarily mean that he will be removed from office. Impeachment is just one step in a multi-step process that may or may not result in his removal from office. In fact, two Presidents – Andrew Johnson in 1868 and Bill Clinton in 1998 – have been impeached, and neither were removed from office.
The process begins simply enough; a resolution for impeachment, containing the basic outline of the charges against the President, is sent to the House Judiciary Committee, which will then decide if the matter deserves a vote by the full House. If so, the House will vote. If a simple majority votes for impeachment, then the President is said to have been impeached, and the matter goes to the Senate for a trial.
As Business Insider explains, an impeachment trial in the Senate is not unlike a criminal trial in a courtroom. The Chief Justice of the Supreme Court presides over the trial, much like a judge would preside over a criminal trial. And in fact, the President can even appoint an attorney to represent him in the trial.
If two-thirds of the Senate vote to remove him, then the President is removed from office immediately, and the Vice President (in this case, Mike Pence) assumes the job of President. The outgoing President may then be forbidden from ever holding elected office again, and may well be open to criminal prosecution as well.
Will Trump Be Impeached?
Impeachment is looking more and more likely by the day, although the fact remains that initiating articles of impeachment is not to be undertaken lightly. Further, any Republican who votes for impeachment is likely risking political suicide. However, as evidence mounts that Trump’s actions as President may not be in line with the law, the day may soon come when the impeachment process becomes an absolute necessity for the sake of the country.
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