Impeachment by the Numbers

Posted on September 5, 2019 by jphmpdirect

by Elizabeth Van Nostrand, JD, and Tina Batra Hershey, JD, MPH

Public health practitioners from around the nation are concerned with President Trump’s attempts to dismantle the Patient Protection and Affordable Care Act (see, for example, our article “I Walk in, Sign. I Don’t Have to Go Through Congress.” President Trump’s Use of Executive Orders to Unravel the Patient Protection and Affordable Care Act” in the Saint Louis University Journal of Health Law & Policy), restrict women’s health care funding, and abandon environmental regulations. In fact, researchers with the New York City Department of Health and Mental Hygiene are so concerned that they have developed a surveillance system to monitor the public health impacts of the Trump administration in New York City (published in the Journal of Public Health Management and Practice).

Calls for the impeachment of President Donald J. Trump have sounded virtually since his election. Approximately 93 democracies, including the United States, have constitutional provisions regarding impeachment. Presidents in other countries have been impeached and ousted from offices, such as those in South Korea, Brazil, Paraguay, Lithuania, Indonesia, Peru, and Iran, but not in the United States. The advent of the Mueller report and other recent events, such as President Trump’s behavior at the G-7 summit and insults to the Danish president over refusing his offer to purchase Greenland, have ignited a resurgence in impeachment chatter. But, in order to assess the likelihood of proceedings against President Trump, it is important to understand the philosophy and logistics behind impeachment.

Grounds to Impeach?

The House is tasked with deciding whether there are sufficient grounds to initiate impeachment proceedings against “the President, Vice President, and all Civil Officers of the United States” … for “Treason, Bribery, or other high Crimes and Misdemeanors” (U.S. Constitution, Article II, §4). Rooted in common law, “high crimes and misdemeanors” encompass a wide variety of offenses, including both criminal actions and abuses of power. The first impeachment proceedings began in the mid 1800s. President Andrew Johnson unilaterally dismissed his Secretary of War, Edwin M. Stanton. The House claimed that this action was an abuse of presidential power because it violated the Tenure of Office Act – a law that required Senate approval before removing a cabinet member. Impeachment proceedings were also initiated in the 1990s when President Bill Clinton was charged with perjury and obstruction of justice for misleading the Grand Jury about his relationship with White House Intern Monica Lewinsky. Do President Trump’s misdeeds rise to the level of “high crimes and misdemeanors”? According to Phillip Bobbitt, a constitutional scholar at Columbia University, probably so, especially with respect to President Trump’s efforts to obstruct justice as well as his response to the Russian electoral sabotage. Lawrence Tribe this week made an even more blunt statement: “The case for impeaching and removing Trump to protect our republic from the irreversible injury likely to be inflicted by his ongoing “high Crimes and Misdemeanors” is now so compelling that only the delusional—or those utterly ignorant of our Constitution’s sole mechanism for defending the country from a lawless tyrant—could fail to agree.”

[bctt tweet=”Elizabeth Van Nostrand and Tina Batra Hershey break down the #impeachment process for US presidents accused of high crimes and misdemeanors @JPHMPDirect. ” via=”no”]

What’s the Impeachment Process?

Once it is determined that sufficient charges exist to warrant impeachment, a member of the House would need to propose a bill or the House as a body would have to pass a resolution levying charges against the President. A simple majority of House members, or 218 individuals, is needed to approve the motion to impeach. In both the Johnson and Clinton cases, a majority of the House members voted to impeach. Contrary to what many people think, President Richard Nixon was not impeached. Although the House Judiciary Committee recommended that Nixon be impeached for obstruction of justice, abuse of power, and contempt of Congress, he resigned before the required House vote was taken.

As of August 28, 2019, there are 435 members in the House of Representatives: 235 Democrats, 199 Republicans, and 1 “undecided.” For the sake of argument, we will assume that all Republican Congressional members would vote in favor of President Trump, and all Democratic, Independent, and Undecided members would vote against him. Under this assumption, the Democrats and unaffiliated colleagues in the House currently have sufficient votes to move forward with Articles of Impeachment (with 18 to spare). impeachment by the numbers

Then What?

Impeachment is not removal from office; rather, it triggers additional proceedings in the Senate. Members of the Senate assess the validity of the charges and vote on sanctions, most likely removal from office. Chief Justice Roberts would preside as judge. A two-thirds super majority of Senate members is required to remove a president from office. This threshold was not met in either the Johnson or Clinton affairs and both presidents kept their jobs. A super majority of the Senate is 67 votes. The current make-up of the United States Senate is 45 Democrats, 53 Republicans, and 2 Independents; therefore, not only would all of the Democrats and Independents need to vote for removal of President Trump, 20 Republicans would need to vote against party lines, as well. Moreover, there are some who believe that Senate Majority Leader Mitch McConnell would never allow an impeachment trial to occur, as the Senate is allowed to determine its own rules with respect to impeachment [See Nixon v. United States (1992)].

In the event that President Trump is impeached and removed from office, Vice President Mike Pence would assume the presidency. The order of succession after that would be Nancy Pelosi (Speaker of the House), Chuck Grassley (President Pro Tempore of the Senate), then Mike Pompeo (Secretary of State).

Final Thoughts

So there you have the logistics and a little history behind impeachment. But what is the reality of President Trump actually being impeached, let alone being removed from office? Some of the more liberal Democrats, like Texas Representative Al Green, have advocated for impeachment almost since the minute Trump took office. To date, there have been three impeachment votes on the House floor, all of which have failed. Four freshmen House Democrats targeted by President Trump in his infamous “Send them back” rants — Reps. Alexandria Ocasio-Cortez (“AOC”) of New York, Ilhan Omar of Minnesota, Ayanna Pressley of Massachusetts, and Rashida Tlaib of Michigan, along with 17 co-sponsors — are banging the impeachment drum. The House Judiciary Committee, the committee which oversees impeachment, is getting ready to launch an inquiry; however, Speaker of the House Pelosi calls for caution. It’s anyone’s guess what will really happen. Claiming support for impeachment and actually voting for it are two different exercises, so stay tuned. One thing that is a certainty though — the next two years of the Trump Administration are bound to be full of drama, unexpected outcomes, and an ever-changing legal landscape.

Read all columns in this series: