As a college professor teaching the Constitution for 40 years I am disturbed when those in power demonstrate constitutional illiteracy. Such is the time in which we live.
Impeachment means “accused.” Three presidents Andrew Johnson, Richard Nixon and Bill Clinton were impeached or accused, but none were removed from office in a subsequent Senate trial. Nixon removed himself by resigning, the other two continued in office filling their terms.
The House alone formulates the charges, as per Article I, Section 2, Clause 5, which must be treason, bribery or high crimes and misdemeanors, according to Article II, Section 4. Constitutionally, no other charges are impeachable. The House cannot make up any offense that is not clearly one of these as in “obstruction of justice” or “obstruction of Congress.” “The Senate has the sole power to try all impeachments” and the Chief Justice presides, according to Article I Section 3, Clause 6. The Senate cannot add to the list of charges. Constitutionally, the process is simple and practiced over the last 231 years until now.
If House leadership chooses to discontinue the impeachment process by not passing its listed charges to the Senate – even after a positive vote on the charges was taken – it has not finished its process. President Donald Trump is, in effect, not charged because it is the only body constitutionally allowed to bring charges. The accused cannot be said to have been impeached, and the charges are effectively dropped. The moment that House leadership passes the baton to the Senate, Trump will join the others as having been accused or impeached and will finish his term in office unless the Senate votes to remove him, which has never happened to any president. It would be unconstitutional for the Senate to go into House chambers and, in effect, take the impeachment baton from them.
House Speaker Nancy Pelosi had no authority to turn the accusation process, which is normally done by the whole House, into the appearance of a trial in two House committees – which she did. It confused voters who asked, if tried and convicted, why is Trump still president?
The founders wanted one body to accuse and a separate body to try. Any crime by a president is a crime against the people, thus the larger numbered House and more frequently elected should be the one listing the accusations. This is why the House of Representative has “sole power of impeachment” in Article 1, Section 2, Clause 5, meaning initiating the accusing process.
Why was the House purposely forbidden to do more than accuse? Alexander Hamilton, the frequently cited founder of the Democratic Party, understood the greater emotion and passions of this body which made it the perfect body to originate the complaints but not to deliberate them. He wrote in “The Federalist Papers No. 65,” they would be “too often the leaders or the tools of the most cunning or the most numerous faction, and on this account, can hardly be expected to possess the requisite neutrality toward those whose conduct may be the subject of scrutiny” – think Chairmen Adam Schiff and Jerry Nadler. Remember Democratic leaders were calling for the impeachment of Trump before he was inaugurated and thereafter have unsuccessfully searched for a crime.
Hamilton prophetically continued, “In such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.” Remember that in the recent House “trial,” the president, his lawyers and Republican colleagues were excluded due process, even for calling witnesses.
Why was the Senate, with six-year terms rather than two and elected by their state legislature, thought by the Constitutional Convention to be “the most fit depositary of this important trust?” Because, Hamilton explained, it was “least hasty in condemning” and “will be most inclined to allow due weight to the arguments which may be supposed to have produced it.”
Hamilton asked, “Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel confidence enough in its own situation, to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused, and the representatives of the people, his accusers?” The Senate is not so emotionally charged as is the more frequently elected House, reason can prevail. Notice the Democrats cannot wait 10 months for the people to vote again, so emotionally charged are they as exemplified by Democratic Majority Whip James Clyburn reportedly saying, “Give the president a fair trial, then hang him.”
Still, Hamilton warned, “It ought not to be forgotten that the demon of faction (political party) will, at certain seasons, extend his scepter over all numerous bodies of men.” Senate Minority Leader Chuck Schumer, who was not satisfied with the two House charges – neither a crime or listed in the Constitution as impeachable offenses – remains in search of a crime, forever demanding more witnesses. Even if found, the Senate cannot constitutionally add to the list of accusations given it by the House.
Again, if House leadership chooses to discontinue the impeachment process by not passing its charges to the Senate – even after a positive vote on the charges was taken – it has not finished its process. The charges in effect are dropped by the only body constitutionally empowered to bring charges. It has stopped the process, and the accused, Trump, cannot be said to have been impeached because the charges were dropped.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and to applying that knowledge to current events. He taught history and political science from this perspective for over 30 years at Taft College. To read more of his weekly articles, visit www.LibertyUnderFire.org.