Impeachment: Notes and Links

Impeachment timeline

 

The White House criticism of House procedures

 

Previous presidential impeachments

The impeachment of Andrew Johnson

March 4, 1867: 40th Congress convenes immediately upon 39th’s adjournment to continue the Convention Congress

  • 2nd Reconstruction Act: military role in registration
  • Command of the Army Act to bolster Grant
  • Tenure of Office Act to protect Stanton
    • Any officeholders violating the Act is "guilty of a high misdemeanor, and, upon trial and conviction thereof, he shall be punished therefor by a fine not exceeding ten thousand dollars, or by imprisonment not exceeding five years, or both said. punishments, in the discretion of the court."
    • Likewise any official who attempts to spend government funds on any such officeholder.

Congress had put Reconstruction on a tight schedule. Johnson moved to interfere:

  • legalistic obstruction in implementation (3rd Reconstruction Act was passed to stop this)
  • amnesty for nearly all former Confederates
  • provisional firing of Stanton as soon as special early session 40th Congress adjourned (August 1867)
  • Grant as temporary Sec of War; purge of Republican generals
  • attempt to enlist Grant, Sherman, Thomas in “testing” the Tenure of Office Act
  • formation of Military Division of the Atlantic under Sherman, parallel to Grant’s command

Feb. 24, 1868 House voted 126-47 to impeach; then delegated Reconstruction Cmte to come up with articles.

House approved 11 articles of impeachment March 2

  • Articles 1-9 on TOA violation, 10 on attempt to delegitimate Congress (plus a sort of summary 11th article)
  • Defense: not criminal violations; “testing” TOA; Stanton had already served past the presidential term in which he was appointed
  • Full text of articles

Senate trial began Mar. 5; ended May 26

  • Article 11 (speeches questioning legitimacy of Congress) (May 16): 35-19, one short of the required majority
  • Article 2 (appointing Thomas as interim Secy, despite office not vacant) (May 26): 35-19, exactly the same line-up of votes
  • Article 3 (appointing Thomas without Senate advice & consent) (May 26): 35-19, same
  • the Senate then voted (May 26) 34-16 to adjourn the trial without further votes on articles

 

The impeachment of Richard Nixon

Nixon administration concerns and goals leading to Watergate

  • dirt on political opponents, especially possible candidate Edward Kennedy & DNC chair Lawrence O'Brien
    • investigators paid with surplus campaign funds. Genuine fear of losing to Muskie in 1972.
  • find evidence of foreign involvement in left-wing and anti-war groups (FBI, CIA couldn't find any)
  • prevent "leaks" of defense and diplomatic information
    • illegal wiretaps
  • explored using IRS & other agencies to harass political enemies
  • 1971: "dirty tricks" against Dem. politicans and convention; protection against same

Leak of the Pentagon Papers --> establishment of the White House "Plumbers"

  • burglary of Ellsberg's psychitrist
  • obstruction of justice in Ellsberg case
  • material assistance from CIA

"Operation Gemstone" -- CRP/Liddy plan for dirty tricks, investigations, eavesdropping

  • Watergate burglary (June 17, 1972)

Unfolding of the Watergate scandal

  • Links to White House and to Committee to Re-Elect the President
  • What the White House did: hush money; perjury; the FBI and the CIA
  • Five investigations: Sirica and Silbert; the Washington Post; (the White House); special prosecutor; the Senate select committee
  • The "Saturday night massacre" Oct. 20, 1973 preciptated House impeachment investigation
    • Process began in House Oct. 30, 1973 with a party-line vote in House Judiciary Committee to consider possible impeachment giving subpoena powers to chairman Rodino. Republicans argued that he should share that power with the ranking Republican. NY Times article.
    • In Dec. 1973 committee began hiring a special impeachment inquiry staff; in Feb. they produced the report "Constitutional Grounds for Presidential Impeachment".
    • House voted 410-4 on Feb. 6, 1974 to formally authorize Judiciary Committee to begin impeachment inquiry. Relevant pages of the Congressional Record (scroll down to pp. 2349-2363).
    • Judiciary Committee began formal impeachment hearings May 9
    • Committee reported impeachment articles July 27-30
      • Article 1: obstruction of justice (27-11: D 21-0, R 6-11)
      • Article 2: abuse of office (28-10: D 21-0, R 7-10)
      • Article 3: contempt of Congress (21-17: D 19-2, R 2-15)
      • Full text of the three approved impeachment articles, as posted by Government Printing Office
    • Other proposed articles were rejected by the committee, each on a 12-26 vote:
      • Article 4: misappropriation of funds (for house remodeling) and tax evasion
      • Article 5: circumventing Congress to bomb Cambodia
  • the tapes, the subpoenas, and the smoking gun (released Aug. 5, 1974)
  • Nixon resigned (Aug. 8)

 

The impeachment of Bill Clinton

Events, Jan. 1998 through Jan. 1999

  • Special prosecutor Robert Fiske appointed to investigate Whitewater Jan. 1994
  • Paula Jones lawsuit filed May 1994
  • Kenneth Starr replaces Fiske as special prosecutor Aug. 1994
  • Scandal reported; Clinton denies involvement 1/26/98
  • Monica Lewinsky's mother fails to appear before grand jury 2/12/98
  • Judge Wright dismisses Paula Jones case 4/1/98
  • Starr decides to stay as special prosecutor 4/16/98
  • Pres. Clinton's lawyer Kendall accuses Starr of leaking 5/6/98
  • Supreme Court denies fast track rulings (on Clinton's executive privilege claims, requested by Starr) 6/4/98
  • Steve Brill (Brill's Content magazine) accuses Starr of leaking 6/15/98
  • Maryland investigates Tripp bugging 7/7/98
  • Immunity agreement and dress surrender 7/28/98
  • Clinton confesses to relationship 8/17/98
  • House dumps Starr report on internet 9/21/98
  • Dash resigns as ethics advisor in Starr office 11/20/98
  • Lame duck House votes articles of impeachment 12/19/98
  • Senate trial begins 1/7/99

Articles of impeachment and votes in House and Senate

  • Full text and votes on all articles of impeachment in the House, as posted by Washington Post

  • House vote breakdown by party
    article overall vote Y-N Republcans Democrats*
    I. grand jury perjury 228-206 223-5 5-201
    II. deposition perjury 205-229 200-28 5-201
    III. obstruction 221-212 216-12 5-200
    IV. abuse of power 148-285 147-81 1-204
    * includes 1 independent, who voted No on all articles

  • Senate vote breakdown by party
    article overall vote Y-N Republcans Democrats
    1. grand jury perjury 45-55 45-10 0-45
    2. obstruction 50-50 50-5 0-45

 

House and Senate impeachment procedures

Impeachment procedures and impeachable offenses

Investigations: varying precedents

  • Johnson: long-term plans to overcome president's resistance to Reconstruction and assertion of presidential power
  • Nixon:
    • Final Report of the Senate Select Committee on Presidential Campaign Activities (the "Watergate Committee"") June 27, 1974
    • special prosecutors (Cox and Jaworski) -- final report issued June 1977
    • Mar. 1, 1974 Federal Grand Jury under Sirica & Jaworski files (under seal until releated in 2018) the "road map" report to the crimes for which Nixon was "un-indicted co-conspirator".
    • committee staff background research
  • Clinton:
    • independent counsel Whitewater investigation
    • the Starr Report
  • Trump
    • special counsel on Russia election interference; Mueller Report (no legislative follow-up)
    • separate matters arising from whistleblower report
    • original investigation conducted by House Intel Committee
      • The issue of "missing" impeachment investigation vote
      • The issue of closed-door hearings

Impeachable offenses: the House Committee staff report

  • Note the variety of founding-era comments on possible grounds for impeachment beyond treason and bribery. None of these confines attention to statutory criminal offenses.
  • Note their categories of historical impeachment charges
    • encroaching on the powers of another branch (this is where they locate Andrew Johnson's offenses)
    • behavior "grossly incompatible" with the office--cases of intoxicated judges; Chase's politicization of the courtroom
    • corruption and abuse of power
  • 10 of 13 prior impeachments involved charges that were not criminal violations.
  • "Not all presidential misconduct is sufficient to constitute grounds for impeachment. There is a further requirement— substantiality."

 

The Senate's internal rules

Official procedural rules for impeachments

  • Commence immediately:
    • "Receive" managers upon appearance; "begin consideration" by 1:00 pm next calendar day (except Sun.).
    • However, this includes certain preliminaries, such as "due notice" to outside participants.
  • Presiding officer (e.g. Chief Justice) entertains motions, recognizes Senators to speak, makes parliamentary rulings subject to challenge.
  • All questions other than conviction decided by majority rule.
  • Time limits on debatable motions (thus no filibustering)
  • Senate decides what evidence to admit; may introduce new evidence; may call witnesses on their own (majority) initiative.
  • The impeached officer must be allowed to be present; Senate may (and has) allowed them to be represented by counsel.

Tactical opportunities abound

  • Any rule may be changed on the spot by majority vote.
  • May use the above procedures to speed up or slow down proceedings to build or depress support, embarrass participants, etc.
  • May call own witnesses -- including whistleblowers.
  • As Burns notes, Senate election filing deadlines may elapse during trial, affecting willingness of Senators to support or oppose President.
  • Current party division: 53 R vs. 45+2 D.
    • 3 R defections can deny procedural control to the Majority Leader
    • At least 20 R votes necessary for conviction
  • Up to SIX presidential candidates will be participating.

Current Senate plans

  • Weekly Republican Caucus lunch last Wed. (10/16) -- see article in Washington Post
  • Thanksgiving to Christmas?
  • Six days per week

 

Coming up next:

Congress's investigative powers and executive privilege