The Impeachment Process: What To Expect & What History Tells Us

Nov 13, 2019

Congress begins public hearings as part of the impeachment process of President Trump, following a whistleblower complaint into use of presidential authority to pressure the Ukranian government to  investigate Trump's Democratic opponents. What can past presidential impeachment inquiries tell us about the process, and what should we expect going forward? 

Don't miss Civics 101's "Extra Credit" on presidential impeachments, and listen to their episode on impeachment.  Read on for highlights from this conversation. 

Original air date: Wednesday, November 13, 2019. 

GUESTS:

  • John Greabe - Director of the Warren B. Rudman Center for Justice, Leadership, and Public Service, and Professor of Law at UNH Franklin Pierce School of Law, where he focuses on constitutional law, federal courts, and civil rights litigation. 
  • Dan Cassino - Association Professor of Political Science at Fairleigh Dickinson University. 

Watch the show on Facebook Live:

Highlights from the conversation:

These excerpts are from a computer-generated transcript, and may contain errors. 

Impeachment does not mean removal from office:

John Greabe, law professor at UNH Franklin Pierce School of Law: 

"We use impeachment as shorthand for the process by which certain public officials can be removed from office. But of course, impeachment is just step one in that process.

"Step two, if somebody is impeached, is that the matter then goes to the Senate for a trial. And, it's only if two-thirds of the Senate votes for impeachment, that somebody is removed from office.

"And in fact, we have never in our history had anybody who was an elected public official impeached and removed from office. The only officials impeached and removed from office have been federal judges."

Impeachment is similar to, but not the same as, a criminal trial:

John Greabe, law professor at UNH Franklin Pierce School of Law: 

"Sometimes people believe that processes and rules that apply in the trial context also apply in the impeachment context, but that's not so.

"Impeachment is fundamentally a political process. It's a political event. It's different from the criminal trial context.

"...We've recently, for example, seen in the news claims that it's a violation of the president's Sixth Amendment rights, to confront witnesses against you and that it is a right that's written into the Sixth Amendment... Well, the Sixth Amendment applies in the criminal trial context, which takes place under the auspices of the judicial branch, the third branch. This is different. This is a political process."

The rules of judicial process do no apply in an impeachment trial:

Dan Cassino, associate professor of political science at Fairleigh Dickinson University:

"When you get to that removal trial in the Senate, it really is up to the Senate to decide what all the rules are. The rules of evidence, for instance, don't apply. The president's lawyer, Rudy Giuliani, has been talking a lot about attorney client privilege. But, of course, that's a judicial role. It doesn't apply to any of this.

"So all of these rules we're very familiar with the Sixth Amendment - attorney client privilege. All these things we've learned from watching Law & Order for years and years. None of these actually apply.

"... So there is no such thing as the presumption of innocence. There's no such thing as a jury of your peers."

Constitutional language is vague on impeachment proceedings:

John Greabe, law professor at UNH Franklin Pierce School of Law: 

"The Constitution itself doesn't say that much.

"I mean, the Constitution says that the House shall have the sole power of impeachment. And then it says the Senate shall have the sole power to try impeachments.

"And it in addition to that, it says that impeachment should be reserved for treason and bribery and “high crimes and misdemeanors.” But beyond that, and this is often the case with constitutional law, the Constitution states a few abstract principles."

The Senate can choose to vote by secret ballot or public ballot:

John Greabe, law professor at UNH Franklin Pierce School of Law: 

"Historically, senators have not voted privately or by secret ballot. Their votes have been public.

"I don't see anything in the Constitution that would preclude them from moving to a secret ballot. And there have been some articles written in recent days saying, you know, that all it would take would be a few Republicans to join with the Democrats if the Democrats wanted it to be a secret ballot, and that perhaps that would, you know, free senators up a little bit from political pressures.

"I don't expect that to happen.

"So it will likely be a public vote in the Senate. But the Senate sets its own procedures. And the judiciary has made very clear that it's not going to second guess how the Senate does things."