It’s been so long, I’m doing a daily double.

Impeachment, not just for fuzzy and succulent fruit any more.

So, you hear people talking about it. And you think to yourself, “Self, what do peaches have to do with the Presidency? Magnets, how do they work?”

To answer that, we look first to the text of the Constitution. Art. II, sec. 4 of the Constitution states as follows:

“The President, Vice President and all other 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.”


Okay ... huh. So, there’s really two things to consider. First, what matters for impeachment (what is an impeachable offense)? Second, what is the process of impeachment (how does it work)?

The what of impeachment.

The short, legal answer, like most legal answers, is that no one really knows. If you read somewhere that X constitutes impeachment, that person is lying. Well ... not really. We know of two things that definitely constitute impeachable offenses - “treason, bribery ....” The problem occurs with the remaining part, “or other high crimes and misdemeanors.” What is “other high crimes and misdemeanors[?]” And that’s where things get interesting. No one knows. But there are some theories-


1. Political crimes. This is the Alexander Hamilton argument, which means that you should probably sing it. In Federalist No. 65, Hamilton stated that impeachable offenses were those that “proceed from the misconduct of public men ... from abuse or violation of some public trust.” So basically it’s political mal- or misfeasance. Abuse of the office. Note that under this theory, “mere” crimes (shooting someone on 5th Avenue, say) would not be impeachable offenses; they would have to be crimes related to the political process.

2. Crimes against the United States. This requires a little bit of history and understanding; in the old English law, a “high crime” was usually used to refer to a crime against the state, and, more importantly, the original draft of the Constitution stated “high crimes and misdemeanors against the United States[,]” with “against the United States” being removed by the Committee of Style - a body that was allowed to make the Constitution more readable, but could not change its meaning. So, this would mean that offenses that attack core of the justice system, self-governance, or the United States would be impeachable offenses.


3. Word games. Some academics look deep into the text, and from that make two, contradictory, arguments. The first is that the inclusion of treason and bribery means that any other impeacheable offense must rise to that level; the second is that the list is not exhaustive, but illustrative, and that while the President shall be removed for those reasons, the President can be removed for lesser reasons. WHEW! Which brings us to our final theory.

4. An impeachable offense is whatever Congress wants it to be. Gerald Ford, while falling down some stairs, stated that impeachable offenses are whatever Congress says they are. In essence, impeachment is intrinsically a political issue, to be hashed out by Congress. Congress gets to define what impeachment is, and then gets to decide if the President is convicted based on Congress’s definition.


Whew. So which is correct? As a theoretical matter, I don’t care, and you shouldn’t either, because as a practical matter, Gerald Ford was right (perhaps the first time that phrase was ever used in the English language). Courts don’t get involved in these issues (they are called “political questions”) so in the end, while the “correct answer” is of academic importance, the practical answer is that Congress can impeach and convict on whatever standard they choose.

The how of impeachment.

So, we’ve all met that guy. You know, the one who, when you say, “We have to impeach the President,” replies, “Well, impeaching him is fine, but then we still have to convict.” Yeah, we all hate you, Brad.


But Brad’s not wrong. Annoying, but not wrong.

So here’s the quick version of how it works.

First, the House of Representatives votes on articles (one, or more) or impeachment. If at least one article gets a majority vote, then the President is impeached. But we are not done. This is, to cross the streams a little, roughly the same as being indicted in a criminal case.


And this is where it gets interesting. Some members of the House serve as prosecutors, the President gets defense attorneys, and there is a trial in the Senate with the Chief Justice of the Supreme Court overseeing the trial. Two-thirds of the senators have to find the President guilty in order to convict him. If conviction occurs, then, and only then, is the President removed.

So Brad is right. Insufferable, but right. Impeachment is just beginning of the process. As we see when we look at ...


The history of impeachment.

There really isn’t that much. We have had two Presidents that were impeached - William Jefferson Clinton, aka Bubba, and Andrew Johnson, aka Racist McHatchetface. Both times, there was impeachment in the House, and acquittal by the Senate.



Fun fact. While the impeachment process was begun against Nixon by the House of Representatives, he resigned before the House voted on any of the articles of impeachment.


But what does it all mean?

If you understood everything written above, you realize that impeachment is fundamentally a political process governed by self-interested actors motivated by keeping office and sweet, sweet lobbyist dollars and/or hookers and blow. Which means that impeachment (and conviction, thanks, Brad) depends on the interplay of both legal issues as well as public support. In other words, the craven members of Congress don’t have any set legal principles to guide them, but do have a finely honed sense of how their actions might effect their ability to get re-elected in the future, which may or may not correspond with the emanations from their spine that was surgically detached upon taking office.


I hope that makes everything as clear as an unmuddied stream!