FGV-RJ Administração, C. Sociais e Direito 2018

U.S. IMPEACHMENT

By Ursula Hacket

[1]   President Donald Trump’s business dealings, unhinged [malucos] tweets and conflicts of interest, coupled with lurid sexual allegations and whispers
of Russian links have led some to dream that impeachment could be just around the corner. The chatter started even before he took office, and by January’s
end half a million people had signed the “Impeach Trump Now” petition. It’s all very wishful thinking.
[2]   Article II, Section 4 of the US Constitution states: “The President, Vice President and all civil officers… shall be removed from office on impeachment
for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” The House of Representatives must vote upon an impeachment resolution
and the Judiciary Committee conduct an investigation. If the House then accepts the impeachment charges, the action moves to the Senate, where a trial
takes place. To convict an impeached president a full two-thirds of the Senate must find him guilty. The first of these steps (Committee investigation) has
taken place three times: in 1868 (President Andrew Johnson), 1974 (Richard Nixon) and 1998 (Bill Clinton). The second (House vote and Senate trial),
twice— for Presidents Johnson and Clinton, but not Nixon, who resigned before trial. The third (conviction) has never taken place.
[3]   In conscious opposition to the ancient maxim "the king can do no wrong," the Founding Fathers created a presidency that was not shielded from
responsibility for wrongdoing. In early Constitutional drafts only treason and bribery were impeachable. One founder – George Mason – suggested adding
"maladministration," but James Madison objected that this loose formulation would hand a weapon to politically-motivated enemies of the president.
They compromised with "high crimes and misdemeanors." But Madison's fears proved well founded: impeachment has never truly been a legal process,
and always a political one. The political battleground? Defining "high crimes and misdemeanors.”
[4]   Unlike well-defined treason or bribery, the "high crimes" test is entirely elastic. The President's supporters take a restrictive view, his opponents an
expansive one. Presidents may wish things were clearer, and sometimes claim that they are. "You don't have to be a constitutional lawyer to know that
the constitution is very precise in defining what is an impeachable offence," whimpered a besieged Nixon in 1974. But he was wrong: the Founders did not
specify a list of specific offences, nor even require any actual criminal offence be proved. His successor, Gerald Ford, was closer to the truth when he claimed
that "an impeachable offence is whatever a majority of the House of Representatives considers it to be at a given moment in history." Impeachable
"misdemeanors" could include inaction, chronic ineptitude and abuse of powers, especially when aggregated into a pattern of behaviour. All this makes
impeachment a fundamentally political act – defined in terms dictated by partisan actors – and thus, where those actors are sufficiently hostile, a more
plausible outcome.
[5]   Partisanship and political calculation, then, are all-important – not formal legal standards. For example, both Johnson’s and Clinton’s impeachment
votes split along party lines. Democratic Senator Robert Byrd even stated at Clinton’s trial that although he was certain the Democratic president had
committed perjury, his vote would be cast “in the best interest of the nation.”
[6]   Impeachment efforts have always occurred when rival tribes control the White House and Capitol Hill [site of the U.S. Congress]. And the Republican
Trump will not be impeached unless most members of a Republican-dominated House of Representatives and a supermajority of a Republican-dominated
Senate judge it to be in their own best interests.
Adapted from Prospect, March 2017.