Pro Logica

August 21, 2010

The Impeachment Process

Of late there have been numerous calls for the impeachment of the current POTUS, President Obama. Most of these are made by noted Republican Party members if one pays attention to the media. Ex-president Bush had the same problem but with noted    Democratic Party members. It is probably true to say that some constitutional experts were/are in favor of such speculation but not having the name recognition as the party members, they were very seldom cited.  Whatever one’s opinion on whether some federal government official should be impeached, it is to no avail because the U. S. Constitution assigns that specific function to the House of Representatives.

Before delving into the constitutional details of the impeachment process, it is probably safe to assume that those persons calling for impeachment are desirous of implementing the entire impeachment process, impeachment being but one step, and hopeful of removing the person impeached.

Impeachment process provisions are  directly mentioned in Articles I and II, and indirectly referred to in Articles I and III.

Article I, Section 2 states,

The House of Representatives … ; and shall have the sole Power of Impeachment.

Article I, Section 3 states

The Senate shall have the sole power to try impeachments.  When sitting for that Purpose, they shall be on Oath or Affirmation.  When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment according to Law.

Article II, Section 4 states,

The President, Vice-president and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Article I, Section 5 states,

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, …

Article III, Section 1 states,

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, …

Note: the phrase “Chief Justice” appearing in Article II must refer to the titular head of the judicial Branch, since the Constitution itself does not provide any structure to that Branch.

In a nutshell, the impeachment process is not unlike the judicial process of a criminal suspect. It consists of four stages: Impeachment,Trial, Judgment and Punishment, wherein the impeachment stage corresponds to the arraignment stage of the criminal process, while the other three stages are very much similar to their corresponding namesakes; however, the differences are manifest and so the entire process must be described.

IMPEACHMENT

The House of Representatives is designated as a legislative body and under parliamentary law, any member of the body may submit a resolution to the body and its members can enact resolutions which may or may not be representative of the original resolution since amendments may alter the  original resolution.  The actual rules governing the submission, amending and enactment of resolutions is determined solely by the body itself.  An impeachment is, therefore the enactment of a resolution in the House which states that a specific person is to be impeached, and also sets forth the reasons for impeachment, similar to the section of the Declaration of Independence listing the “crimes” of the King of England.  “Sole responsibility” also means that no one or no body outside of the House need approve of an impeachment resolution.  Strictly speaking, there is no absolute requirement for stating the crimes of the accused but without them the impeachment may be dismissed out of hand.

Who may be impeached?  Any person in the executive Branch–Article II, Section 4–and any judge in the judicial Branch–Article III, Section 1.  Members of the legislative Branch may not be impeached but are subject to each House’s disciplinary rules–Article I, Section 5.  The wording of Article II, Section 4 might be interpreted as not applying to the lowest level executive Branch employees, but that is misleading since the House has sole responsibility for impeachment.  On the other hand, the writers of the Constitution were well aware that court systems include other personnel than judges so that “judge” in the Constitution means a judge and not any of the supporting clerks.

What may they be impeached for?  Specifically, Treason or Bribery for executive Branch Officers as stated in Article II, Section 4.  Since these crimes can hardly be classified as good Behavior, they would also apply to judicial Branch judges–Article III, Section 1.  However, high Crimes, Misdemeanors  and good Behavior are not defined in the Constitution and, hence, can be defined by the House itself.

TRIAL and JUDGMENT

Article I, Section 3 gives to the Senate, a legislative body of the USA, the sole responsibility of the trial and judgment of an impeachment.  Again  there are no specific rules prescribing the manner of trial except that of imposing the Chief Justice as presider over the trial when impeaching the POTUS.  The judgment of the impeachment must be in the form of a resolution stating the guilt or innocence of the person impeached and must be passed by a two-thirds majority of the Senate members present at the voting on the resolution.

PUNISHMENT

If the person impeached has been found guilty by the Senate, that person can removed from their position in the government if they currently enjoy such and are forever barred from holding any government position in the future including  honorary titles–Article I, Section 3.

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While the above description renders the Constitutional aspects of the impeachment process, it must be pointed out that the Constitution does not give any reasons for specifying this particular form.  I’m sure the Founding Fathers had their reasons but I should like to attempt to give my reasons for this particular form being essential to our republican government.

The primary “Truths”  followed by the Founding Fathers in crafting both the “Articles of Confederation” and the “Constitution of the United States of America” can be found in the “Declaration of Independence”.

WE hold these Truths to be self-evident, that all MEN are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness—That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed,…

Obviously, “Truths” , as used here, does not refer to facts, but to beliefs which govern the actions of MEN.  Granted, everything in the above quote can be questioned by individuals who have different beliefs but I find it difficult to devise a just governing system without the above truths.  The last “truth” in the above phrase has been paraphrased in the Declaration itself as “Government of the People, by the People, and for the People”.

The first attempt at devising a government was the “Articles of Confederation”, essentially a pact between sovereign states, which turned out to be ineffective since these sovereign states were very independent minded.  The reality of the situation at the time consisted of sovereign bodies, each having its own citizens, meeting to form a government uniting these bodies, hence, the United States.

The Constitution, which replaced the Articles, still recognized the sovereign states–no name change–but beefed up the Federal Authority over these states.  It created a republican government, democracy being too unwieldy, of three independent branches, wherein the People of the United States of America have direct input into one of the legislative houses, the House of Representatives.  The Senate, the other house, was intended to temper the House by considering the House’s resolutions from the point of view of the sovereign states.  The Constitution provides absolutely no input from the People in the determination of any officer or judge serving in the other two branches.  Amendment XVII provided for the direct election of members of the Senate, and insofar as Congressional law requires certain officials appointed by the POTUS to be approved by the Senate, we may conclude that the People have some input into appointed positions but it is very indirect.  As far as the POTUS is concerned, the Constitution requires no input by the People of the U. S.  The fact that people vote for the President and Vice-president is due entirely to the States who choose the electors who do actually vote.  These States do direct their electors to cast their votes in a certain manner which does not necessarily correspond to the popular election results.

The key to the impeachment process are twofold:  three independent branches  and only one branch, the legislative, which represents the joint will of both, the People and the States; it is the only way to remove executive officers and judges who flout the Constitution and Congressional laws from their posts.

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Let’s consider the most recent calls for impeachment.  One, a military man professed his homosexuality openly and was not removed from the military, contrary to the direct rules of the military under the “Don’t ask, don’t tell” policy.  By all the rules of the law, the man should have been removed from the military, and all officers in the chain of command disciplined.  Clearly, a Congressional law has been flouted but there is no threat of impeachment to anyone involved, and since the POTUS has ultimate responsibility for the actions for all executive branch personnel, he, himself, is subject to the impeachment process.  While I have not researched all the actions of the House since the open declaration of homosexuality, I am not aware of any resolution for  impeachment having been presented to the House members, nor am I aware of any member or coalition of members of the House talking to the POTUS using the threat of impeachment in this matter.

We might ask ourselves why the members of the House do not seem to be interested in pursuing the impeachment process in this particular case.  I would imagine one or more combinations of the following three reasons would be most popular.

1) We are planning to change the law so that openly gay persons may legally serve in the military.                                                                                   2) There is no chance that the Senate would judge the POTUS guilty.          3) I wouldn’t vote to impeach the POTUS since he belongs to my political party.

Now, all three of these reasons are just excuses without merit.  The first excuse assumes that something will happen but there is no guarantee that, in fact, it will.  The second excuse misses the point since an impeachment resolution by the House sends a message from the People to the person being impeached that his/her behavior is considered faulty.  The third excuse is just plain despicable since it puts political party above country, an attitude that is mildly treasonous.

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In summary, members of the legislative branch can be removed from their office by resolution or, since the Constitution is silent, by a recall vote, while members of the other two independent branches can be removed only through the impeachment process.

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