Impeachment
...s well as to the Vice president, judges, and other civil officials of the federal government, was straightforward. The President was to have a fixed term of office; there ought to be some procedure for removing him before his term expired. But if that procedure consisted, say, of zero vote of no confidence by both houses of Congress, the President’s position would be very week; the legislature would be supreme, and thus the balance of powers that was the cornerstone of the edifice erected by the Constitution would be destroyed (Posner 97). The solution was to create both procedural and substantive roadblocks to removing a President by impeachment .The principal procedural roadblock was the requirement of a two- third vote in the Senate to convict. It is a bit deceptive, since the harder it is to convict in the Senate, the easier it may be to impeach in the House (Pynn 405). The first attempt to use the impeachment power was made in 1796. A petition from residents of the Northwest Territory, submitted to the House on April twenty fifth, accessed Judge George Turner of the territorial supreme court of arbitrary conduct. The petition was referred to attorney General Charles Lee. Impeachment proceedings were dropped after Lee said, May 9, that the territorial government would prosecute Turner in the territorial courts (Pynn 405) 2. How the Process works in theory (I will use Clinton’s case). Article 11; Section 4, of the U.S. Constitution specifies the procedures to be used to remove the President, Vice President, or other officials from office. The procedure is complex, reflecting its 18th century roots (Diamond 3). The process opens in the House. Although there are several options, the impeachment process traditionally begins with a House vote on an inquiry of impeachment .The Judiciary Committee is then authorized to investigate the charges against the President (Posner 99). Already the process will be different, as Starr has already investigated the matter. The Starr report will surely make congress investigation quicker. If Congress decides to investigate matters, the investigatory stage could take an awhile. After the investigation, a member of congress can take the more serious step of introducing a resolution of impeachment. All other work must stop until a decision is reached (Posner 100). At this point, either the President is cleared of the charges through the investigation, or the Judiciary Committee votes to send articles of impeachment to the full House. The House then votes on the articles of impeachment .If the House approves articles, the matter is sent to the Senate. The Senate has the sole authority to conduct impeachment trials. In cases of trials the President impeachment the Constitution once removed him from office. The Vice President would replace the President. The new President would then nominate a new Vice President, to be approved by a majority vote of both Houses and Congress (Taylor 68). 3. How it would work in Practice. Because the Constitution does not specify how the House is to conduct an impeachment investigation, the House must decide upon its own rules. I will follow the Watergate President. Articles of impeachment have been compared to a grand - jury indictment. That is, the articles can be seen s prosecutorial in nature. But the 1974 House Judiciary Committee regarded itself as having a role that was more adjudicatory than prosecutorial-they thought of themselves more as judges than prosecutors. For example, the committee permitted the President’s counsel to offer arguments and examine witnesses (Milkis 35). It is important to realize that the Starr report is based entirely upon evidence that has not been challenged. Unlike Nixon, Clinton and his attorneys have been given no opportunity to cross-examine the witnesses who have testified against the President, or otherwise challenge the credibility of the evidence presented (Posner 100). Although five articles were originally brought against Nixon, only three met this standard and were forwarded to the whole House (Milkis 35). Legally, this is a very high standard of proof. In a normal lawsuit, the standard of proof is “by a preponderance of the evidence” which normally thought to be about fifty one percent a fairly easy threshold to meet. To prove someone was negligent in a civil suit, you need to prove it was more likely that they not made a mistake. A “clear and convincing” standard is higher. It means that you have to be sure you can prove the allegations (Pynn 407). The Senate has never adopted a uniform standard of proof for impeachment trials (Diamond 4). In the case of the Judge Alcee Hastings, who was impeached and convicted in 1989, the Senate expressly refused to adopt a “ beyond a reasonable doubt” standard, as the judge urged. Without such a rule, senators, at the conclusion of a President trial, would have to decide for themselves whether enough evidence was presented to warrant removal from office (Posner 112). 4.What is the role of the Courts? Impeachment is inherently more a political process than a legal one. The House cannot simply decide what is and is not impeachable. The Constitution sets forth the standard as a “ high crimes and misdemeanors”(Diamond 5). If the House were to impeach a President for smoking cigars, their constituents would rightly conclude that their representatives had violated their oath to uphold the Constitution. The Supreme Court concluded that Nixon’s allegations presented what the court historically has called a “ political question”(Milkis 40). The court normally refuses to resolve such matters. Political questions, the Court has historically concluded, are simply not proper issue for Supreme Court adjudication. The Court believes that the Constitution intends for the elected branches of the national government to resolve overly political issues, such as impeachment. Judicial interference is improper. In the Nixon case, the Court held that the Senate had the right to make its own impeachment rules and they are not subject to judicial oversight. This means that in the future, even if the Court thinks that Congress could go away in implementing its impeachment powers, the Court nonetheless lack the power to correct the error. For this reason, impeachment is best considered a political process in legal clothing. Congress is in the unenviable position of needing to avoid all appearances of politics in this highly political environment (Milkis 41). 5. Purpose of Impeachment. Based on specific constitutional authority, the impeachment process was designed “a method of national inquest into the conduct of public men”, according to Alexander Hamilton in Federalist No. 65. The Constitution declares that Impeachment proceeding may be br...