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Do Republicans Have a Case for Impeachment?

by David Yee, published

Even before President Obama announced his unilateral immigration plans to grant de facto amnesty to almost 5 million illegal immigrants on Thursday night, talk had already turned in some Republican circles to impeachment. With all the talk of impeachment in the past few years, one would think that it's a common place occurrence.

Yet, impeachment has been a rare event in U.S. federal politics. Only 19 of these went to trial before the Senate, including 15 federal judges, one Supreme Court associate justice, 1 senator, 1 cabinet official, and 2 presidents. Only 8 were convicted.

Looking into the history of impeachment and the legal precedents that have been created gives us a better understanding of the process, and should serve as a warning to all.

The History of Presidential Impeachment

Only two U.S. presidents have ever been subjected to the impeachment process, with both being acquitted -- Andrew Johnson and Bill Clinton. Only four other presidents have been seriously investigated or threatened with impeachment -- John Tyler over states' rights, Richard Nixon over the Watergate scandal, George W. Bush over signing statements, and now Barack Obama over executive orders.

Andrew Johnson was acquitted by only one vote, while Bill Clinton's impeachment failed by 17 votes on the first charge of perjury and by 23 votes on the second charge of obstruction of justice -- with no Democrats voting guilty against Clinton.

With such a poor track history, why was impeachment ever put into the Constitution? Edmund Ross, the deciding vote for Johnson's acquittal wrote:

Yet the conclusion must not be deduced that the power of impeachment is not a wise provision of our Constitution, nor in any sense inconsistent with our popular forms. Conditions may, and are not unlikely to arise, some day, when the exercise of the power to impeach and remove the President may be quite as essential to the preservation of our political system as it threatened to become in this instance destructive of that system. Should that day ever come, it is to be hoped that the remedy of impeachment, as established by the Constitution, may be as patriotically, as fearlessly, and as unselfishly applied as it was on this occasion rejected.

So what are valid reasons to impeach a president?

The Short Answer

The power of the House to impeach and the Senate to convict and remove from office is an unchecked power in the U.S. Constitution. Once a majority of the House has approved the charges and two-thirds of the Senate votes in favor of conviction, there is no recourse or appeal; it is an absolute power held by the legislative branch. While the chief justice of the Supreme Court presides in the case of a presidential impeachment, their powers are not as wide as in a general court trial. The chief justice is there to ensure that Senate rules of order are properly followed.

The Constitution itself is vague, citing reasons for impeachment to be "Treason, Bribery, or other High crimes and Misdemeanors." While these would seem to be grievous offenses, it has become a bit more murky in modern interpretation.

In fact, Former President Gerald Ford stated:

The only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office.

With this in mind, right and wrong really has no meaning. Assuming that 218 representatives agree with the charges, the impeachment was "just." Then it just takes 67 senators to convict and remove from office.

While the Constitution says little about it, the impeachment of Andrew Johnson set the bar for the standard of behavior of the House and Senate. Benjamin Butler, who served as the lead manager (prosecutor) for the Senate, stated in his opening argument that: are bound by no law, either Statute or Common, which may limit your constitutional prerogative. You consult no precedents save those of the law and custom of parliamentary bodies. You are a law unto yourselves, bound only by the natural principles of equity and justice, and salus populi suprema est lex .

While we have a simple reality in modern times, the Founders had a difficult time reaching consensus on exactly what crimes or instances an official should be impeached -- and their debates should be our guide when we examine this issue.

Constitutional Convention in Philadelphia, Summer 1787

The Founders at the Constitutional Convention wrangled with the issue of presidential impeachment -- some delegates for provision, others against.

Roger Sherman opposed any measure where the executive could be removed by the legislature at "their pleasure." To him, such a measure had the effect of a popularity contest.

Charles Pinckney opposed the addition of provisions for impeachment because the "Legislature who would in that case hold them as a rod over the Executive and by that means effectually destroy his independence." To Pinckney, the executive needed full co-equal and independent action to accomplish its role; the legislative branch could hold the executive hostage by the threat of impeachment.

Gouverneur Morris believed that the presidential term of four years was a short enough period that there would not be a need for a measure to remove the executive. Morris favored the ability to impeach judges, who often had life-tenure, but he saw the ballot box as the ultimate form of impeachment. He went so far as to state that if a president was re-elected, it was proof of his innocence of any wrong doing.

Benjamin Franklin noted that impeachment was a far better course of action than assassination -- having the ability to lawfully remove an executive from power was considerably more civilized than having to resort to assassinations or open rebellion.

The debate over impeachment was never resolved during open sessions, and the matter was turned over to the Committee of Detail, who drafted the final version.

Executive Orders, 2010-2014

Almost all of the complaints against President Obama have been over his use of executive orders, with him being accused of unlawfully seizing the power to legislate.

All presidents have used executive orders, from George Washington using them to establish the extra-constitutional offices of the presidential cabinet to Barack Obama delaying the implementation of Obamacare.

U.S. Representative Paul Ryan (R-Wis.) has stated that President Obama has had "an increasingly lawless presidency.”

Tea party favorite Steve King (R-Iowa) has gone so far as declaring, "we’ve never had a president with that level of audacity and that level of contempt for his own oath of office.”

Presidents have historically used executive orders to unilaterally advance initiatives regardless of congressional approval. Some have definitely been "lawless," yet Obama's accusers treat him like a unique case:

  • Abraham
  • Harry Truman forced desegregation of the military with Executive Order 9981, long before it would be done by Congress for the civilian population--and while the issue was a political hot-button in Congress.
  • It is the only intelligence agency (17 total) with zero congressional oversight.

Obama has also signed far fewer executive orders than most of the modern presidents -- with only Gerald Ford and George H.W. Bush having fewer.

Who knows how the Republicans will react to Obama's latest announcement, but one thing is for sure...

John Boehner Knows How to Count to 67

Within minutes of the release of the details of President Obama's plan, House Speaker John Boehner responded on YouTube by saying, "The president has said before that he's not king and he's not an emperor. But he's sure acting like one." But regardless of whether or not Obama is acting like a king, Boehner knows he doesn't have the numbers to successfully remove him from office.

The 114th Congress will have either 53 or 54 Republican senators -- far shy of the amount needed to convict in the Senate. As long as the votes are not there for a conviction in the Senate, it is unlikely that Boehner will allow the advancement of impeachment. The lessons from Bill Clinton's impeachment should not be ignored; the voting is more than likely going to fall around party lines.

Considering how few bills have reached closure in the Senate in recent years, it is highly unlikely that 67 senators are going to agree on any form of impeachment charges, short of deliberate treason. Right now, it is a small bloc of the Republican Party that is demanding impeachment, but this can always change.

The real danger to all of this is that in the past few years a growing segment of Republican lawmakers have seen impeachment as a legitimate strategy of "recalling" presidents who aren't complying with their policies or ideologies.

This isn't an issue of delusion or bad math; it's an issue of a new political strategy for unseating political opponents -- exactly what Charles Pinckney warned of during the Constitutional Convention.

Rather than a safety value necessary to preserve the political system, impeachment is being employed as a policy statement and political tactic. While legitimate causes for impeachment are in the eye of the beholder, political power ebbs and flows. What was once used to your advantage can always be later used as a weapon against you.

Photo Source: AP

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