IMPEACHMENT OF A U.S. PRESIDENT
MASTER JAMES SILKENAT
Impeachment of a
U.S. President Master James Silkenat is a Past President of the American Bar Association. He is a partner in the New York office of Sullivan & Worcester, is a former Legal Counsel at the World Bank Group’s International Finance Corporation and a member of the American Law Institute. He is a member of the Board of Directors of the World Justice Project.
The impeachment of President Donald Trump by the U.S. House of Representatives in December 2019 focused many Americans and others around the world on the complexities of a peculiar feature of the American Constitution: the impeachment of a high government official, specifically the President of the United States. How do you remove a U.S. President from office? For what reasons and under what procedures can and should this be done? In these strained times on the American political scene, these questions seem to engage almost everyone, either pro or con, concerning the current incumbent. A troubling side issue is how to analyse the various aspects of impeachment without giving such analysis a personal political slant. The answer, unfortunately, is that basically you cannot. Nevertheless, this article will make a good-faith, non-partisan effort to discuss, for a non-U.S. legal audience, the legal, historical, political and procedural aspects of impeachment as they exist today in the United States.
For most Americans of a certain age, the notion of impeachment involves three U.S. Presidents: Richard Nixon in 1974; Bill Clinton in 1998/ 1999; and now Donald Trump in 2019/20. President Nixon, while facing almost certain impeachment and conviction by Congress, resigned from office before impeachment could be approved by the U.S. House of Representatives. President Clinton was impeached by the House, but was not convicted by the Senate, and thus was not removed from office. The same (impeachment by the House and lack of conviction by the Senate) has now been the result for President Trump. The only other impeachment of a U.S. President was that of President Andrew Johnson in 1868. He was impeached by the House, but found not guilty by the Senate. The term ‘impeachment’ is used several times in the U.S. Constitution. Article I, Section 2, Clause 5, provides that: ‘The House of Representatives... shall have the sole Power of Impeachment’. In Article I, Section 3, Clause 6, the Constitution states that the Senate ‘shall have the sole Power to try all Impeachments’. Conviction in such trials requires the concurrence of two thirds of the Senate and results in removal from office. And, finally, Article II, Section 4, of the Constitution provides that ‘The President... shall be removed from office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanours’.
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The above language, while central to any analysis of Constitutional requirements, is not without controversy. There is no definition in the Constitution of ‘high Crimes and Misdemeanours’. Arguments on the content of these words have been voluminous, but have often centred on what they meant to the drafters of the Constitution and under English common law before that. The term is problematic because it might, on its face, be taken to refer only to offences covered by criminal laws. That, however, has not been the history of the wording and is not accepted by most Constitutional scholars today. Both in U.S and English practice there has always been a perceived need to allow some flexibility in how the term is applied, since the varieties of potential misconduct by a government official are so numerous and complex. Essentially, the term has come to mean (although always contested by counsel for the person being impeached) that a government officer has somehow exceeded the powers of his or her office (particularly vis-a-vis another branch of government) or used the power of the office for personal gain. There is general recognition that the process is unavoidably both legal and political in nature. Another potential defence to impeachment has been the argument that Congress should leave the fate of a President to the American voter in the next Presidential election. This would of course essentially eliminate the process of impeachment contained in the Constitution (and the reasons for its inclusion by America’s founding fathers) and be singularly inappropriate when the conduct being punished could result in a Presidential election itself being tarnished or subverted. In the impeachment proceedings against President Trump, there were
