OCT 17, 2019 9:30 AM
The impeachment process has the feel of a criminal proceeding, but it’s still based in politics, as are the rules and procedures for carrying it out, says U. of I. political science professor Gisela Sin. Even the seemingly mundane and ordinary rule-making of Congress is done with an eye on the larger political game and political goals. Sin spoke with News Bureau social sciences editor Craig Chamberlain about impeachment, with added insights from watching its use in Latin America.
What does it take to trigger an impeachment inquiry and who sets the rules?
Impeachment is a political process, and in that sense is an accountability instrument Congress has for dealing with presidents. Although the Constitution is clear in many aspects, it is vague on what constitutes reasons for impeachment, citing only “treason, bribery or other high crimes and misdemeanors.” And there’s no agreement over what those words mean. In Latin American presidential systems, which have similar constitutional wording, it has meant very different things in different countries. Therefore, impeachment is a political process and an impeachable offense is whatever a majority thinks it is.
President Trump’s behavior, for instance, was questionable on many fronts way before Speaker of the House Nancy Pelosi formally announced an impeachment inquiry. The facts, however, were very complicated and hard to grasp for public opinion. Democrats did not have a majority in the House that supported impeachment. The Ukrainian case, however, was easier to grasp and brought a shift.
Regarding the rules, the Constitution states that each house of Congress may determine the rules of its proceedings. This means that the House and Senate each have the power to decide how they will govern an impeachment process. Thus, the House can decide how they will question witnesses, which kind of legal representation witnesses can have, and which committee will govern the inquiry and draft the articles of impeachment.
What do you find most interesting in the House decisions so far?
One has been in the choice of the Intelligence Committee to take charge of the investigation. Usually, the Judiciary Committee leads and writes articles of impeachment, but the leadership may refer the matter to other committees, and that decision is always strategic. For example, in Andrew Johnson’s impeachment shortly after the Civil War, the House Committee on Reconstruction was chosen to lead. Why? Because the Judiciary Committee was heavily dominated by conservative Republicans. The chair of the House Reconstruction Committee, however, was the radical Republican Thaddeus Stevens. The outcome in the House would have been different if the impeachment had been conducted in the Judiciary Committee.
Why not Judiciary this time? After all, it has more resources, so could certainly devote more staff and time to the investigation. Furthermore, Judiciary has 41 seats that cut across the whole House membership, while Intelligence only has 22. However, the Intelligence Committee is a select committee. That means Pelosi sits on it as an ex officio member, and, more importantly, she directly appoints and removes the membership. And given that it is a smaller committee, she has much tighter control.
Also important is that Judiciary chairman Jerrold Nadler won his position in a power struggle against a representative close to Pelosi. Nadler also has been pushing for impeachment proceedings for many months, while Intelligence chairman Adam Schiff opposed impeachment proceedings until the day Pelosi announced the inquiry. Pelosi likely fears an inquiry under the lead of Judiciary could be broader in scope and get out of hand very quickly. Under Intelligence, the scope is narrower and tightly controlled by a chairman close to the speaker, as well as by the speaker herself.
If the House approves articles of impeachment, what does that mean for the Senate?
The Constitution states that the Senate “shall have the power to try all impeachments,” and needs a vote of 67 senators, or two-thirds, to remove the president from office. However, the Constitution does not force the Senate to conduct a trial.
Now, the internal rules of the Senate are more specific: They state that the Senate has to “proceed to the consideration of such articles” the day after it receives them. Thus, the Senate has to take on such articles, even if it disposes of the trial right away. Many pundits are discussing whether the Senate could hold a show trial it would control in favor of its political goals. The Senate also could change its own rules regarding impeachment, but that would require a majority vote.
All of this explains why Mitch McConnell stated that the Senate has no option but to take on impeachment if the House approves such articles. The Senate cannot passively ignore the articles of impeachment in the same way it shelved the nomination of Merrick Garland for the Supreme Court.
You are a native of Argentina and still follow Latin American politics. How does that shape your view of the impeachment process?
We can probably learn a lot about impeachment from Latin America. First, its experience shows that all impeached presidents had lost the support of the majority of voters. In almost all cases, an important element was social turmoil and protests in the streets calling for the resignation of the president because of corruption and abuse of power.
Second, the bases for impeachment have been very different, with some highly contested and some on more solid ground. Third, all these presidents had lost majority support in Congress. A favorable majority could have protected unpopular presidents from impeachment.
In the last 30 years, impeachment has become the instrument that resolves high levels of executive-legislative conflict in Latin America, without causing a democratic breakdown. It has been used similar to a vote of no confidence against a prime minister in a parliamentary system, which removes him or her from office.
Given that the circumstances around previous impeachment efforts have all been different, what lessons, if any, can we draw from that history?
The U.S. has never removed a president from office by impeaching him – a difference with Latin America. Andrew Johnson was acquitted by a single vote in the Senate, Richard Nixon resigned after the House approved articles of impeachment, and Bill Clinton was acquitted in the Senate.
The main difference now is in the type of divided government. Previous impeachments were conducted with the House and Senate in the hands of the opposition; this time only the House is. This means that the probability that the Senate will actually be a real threat to convict the president is lower, and probably depends more on the type of evidence the House can gather to write articles of impeachment.