On Tuesday, 24 September, Speaker of the US House of Representatives Nancy Pelosi announced that she is officially initiating an impeachment inquiry into President Donald J. Trump. House Democrats allege that Trump betrayed his oath of office in his by now infamous phone conversation with Ukraine president Volodymyr Selensky, asking him to intervene on his behalf in the 2020 reelection campaign. New allegations are surfacing that Trump may have asked other heads of state for political favors as well. What will happen next?

The impeachment process comes in two parts. Article I of the US Constitution confers on the House of Representatives “the sole Power of Impeachment.” Because the Constitution says nothing further and there are no statutes on the subject, the House is in effect free to decide how to exercise this power.

Although there are important legal aspects in the impeachment and removal process to consider, the process begins as a political act, not a legal one. A comparison to criminal proceedings helps to understand the process. Given that the US is a common law country, prior precedent might be legally significant to implement the Constitution. In both of the only other two cases of impeachment of a president—Andrew Johnson in 1868 and William Clinton in 1999—the House began by using the House Judiciary Committee to officially investigate the president.

The political decision to initiate the impeachment process is comparable to the moment when a criminal prosecutor must make a decision whether to investigate an alleged crime. However, criminal prosecutors usually have far more legal guidance through administrative regulations, handbooks or manuals and even prior successful investigations. This is not the case in an impeachment process.

With Andrew Johnson and William Clinton, the House Judiciary Committee was called upon by the Speaker of the House to begin the official proceedings. Nancy Pelosi has followed that same path. In addition, she already has six different other committees that have been investigating various acts of the president and she has called upon them to be part of the investigation. The media has called this a political gamble by Pelosi because the act of officially calling upon the House Judiciary Committee to begin investigations under the rubric of “impeachment,” in U.S. political culture, is tantamount to a promise to provide articles of impeachment to the Senate. If the House Judiciary Committee conducts the investigation and determines it does not find any provable activity worthy of impeachment—which ought to be possible in pure legal science—political questions would be raised as to why she began the process.

Returning to the criminal comparison, however, that is like expecting the criminal prosecutor’s office to put on trial every person whom it ever investigates, and for us to question the wisdom of any criminal investigation that did not result in a trial. It ought to be a process with an open outcome. If the investigation does not return articles of impeachment, supporters of the current administration would shout their favorite cry of “witch hunt,” but actually, the expectation that an investigation must result in a trial (and even in a conviction) is more like a “witch hunt.”

Even if the House Judiciary Committee does recommend that the House draft articles of impeachment, it may still not do so. Again, this is political. The House has a Democratic Party majority right now, so it would seem likely that if the House Judiciary Committee provides sufficient information for articles of impeachment, the House will draft and vote in favor of presenting the Senate with those articles, initiating the second part of the process. If it does so, the President is impeached. This does not, however, automatically remove him from office. If the House does adopt the articles of impeachment, it then sends the articles to the Senate, as was true with both Andrew Johnson and William Clinton, and the Senate will hold a trial to determine whether to remove the president from office, comparable to the sentencing step in criminal law.

Given that there is no requirement that Senators be lawyers, some commentators criticize this process as “politicians playing courtroom lawyer.” The Senate trial will have at least one lawyer involved—it will be presided over, but not decided by, the US Supreme Court’s Chief Justice, as is required by the Constitution.

A legal issue for the trial is what the burden of proof for the prosecution should be. This was argued with the impeachment of Johnson, again with the pre-impeachment investigation of Richard Nixon in 1974, and again with the impeachment of Clinton. Again we can make an analogy to criminal procedure. The defendant presidents of course want the standard to be the high criminal law standard and require that the evidence supporting impeachment be proven beyond a reasonable doubt. The prosecution wants the lower administrative law standard of clear and convincing evidence.

Based upon the evidence, the Constitution provides that removing the president from office requires concurrence of two thirds of the Senate Members present at the trial. Most commentators until now have thought that because the Republican Party holds a majority of Senate seats, the Senate would vote consistent with the president’s party, and thus to not remove.

This political prognostication has been regarded as so likely that it has stopped the political act of officially commencing an investigation since it was first discussed beginning in 2017. But now it has not stopped political initiation of the proceedings. Since 2017, the law has not changed, but apparently the political will has.

A president who is impeached and removed from office is thereafter still liable to criminal indictment, trial, judgment and punishment. When a president leaves office before the full term, Article II of the Constitution elevates the Vice President to become President. When President Richard Nixon resigned, Vice President Gerald Ford, by operation of the Constitution, became the President. The new President only fulfills the remainder of the ex-President’s term of office. Thereafter, he may compete in a new election against other candidates. But it is legally possible that a president be impeached by the House, not removed from office by the Senate, and still run for election for a second term.

Media Contact:
Professor Kirk W. Junker
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