By Daniel Cotter*<\/p>\n
On December 18, 2019, President Donald J. Trump became only the 20th<\/sup> person and 3rd<\/sup> president to be formally impeached by the House.\u00a0 Debate began about whether he had been impeached if the articles were not submitted<\/a> to the Senate.\u00a0 The better argument, reading the language of the Constitution, is that a majority voting to approve an article of impeachment is in fact impeachment.<\/p>\n Reminder of the Constitution Provisions on Impeachment<\/strong><\/p>\n Article I, Section 2, Clause 5<\/a> of the United States Constitution provides:<\/p>\n The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.<\/p><\/blockquote>\n The plain reading of that language indicates that the impeachment happens once the House votes and is not contingent or dependent on the trial by the Senate.\u00a0 As a reminder, the Senate language regarding impeachment in Article I, Section 3, Clause 6<\/a> is that the \u201cSenate shall have the sole Power to try all Impeachments.\u201d\u00a0The Constitution does not specify when the House must transmit the articles of impeachment to the Senate.<\/p>\n What Constitutes High Crimes and Misdemeanors<\/strong><\/p>\n The second debate and red herring in the Trump impeachment arena is that the two articles of impeachment for abuse of power and obstruction of Congress are not \u201chigh crimes and misdemeanors.\u201d \u00a0For example, former Acting Attorney General Matthew Whitaker stated<\/a> while the impeachment inquiry was taking place:<\/p>\n Abuse of power is not a crime.\u00a0 The Constitution is very clear that this has to be some pretty egregious behavior, and [Democrats] cannot tell the American people what this case is even about right now.<\/p><\/blockquote>\n Historical review of the 19 previously impeached officers of the government and the Founding Fathers refutes that notion.\u00a0 In Federalist No. 65<\/a>, Alexander Hamilton wrote:<\/p>\n The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.\u00a0 They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.<\/p><\/blockquote>\n Of those impeached to date, 15 of 19<\/a> have been judges.\u00a0 In reviewing the 19 prior impeachments, few of the matters charged would rise to the level of actual indictable crimes. For example:<\/p>\n John Pickering<\/u><\/p>\n Pickering was a U.S. District Court judge for the District of New Hampshire.\u00a0 The articles of impeachment accused him of mental instability and intoxication on the bench<\/a>.\u00a0 Neither would equate to indictable offenses, but Pickering became the first House-impeached and Senate-convicted person in U.S. history.\u00a0 (U.S. Senator William Blount was the first impeached person, but the Senate refused to accept impeachment of a fellow senator by the House and instead expelled Blount<\/a> on its own.)<\/p>\n Samuel Chase<\/u><\/p>\n Chase was an associate justice on the U.S. Supreme Court.\u00a0 Neither Congress nor President Jefferson cared for how partisan the Supreme Court and grand jury statements had become. Their solution was to impeach Chase on charges that he engaged in the arbitrary and oppressive<\/a> conduct of trials.\u00a0 He was charged with 8 articles of impeachment but was acquitted by the Senate<\/a>.\u00a0 Referring to the Chase impeachment, Chief Justice John Roberts told C-SPAN several years ago:<\/p>\n I think the most important thing for the public to understand is that we are not a political branch of the government. They don\u2019t elect us. If they don\u2019t like what we\u2019re doing, it\u2019s more or less just too bad- other than impeachment, which has never happened, or a conviction on impeachment.<\/p><\/blockquote>\n Andrew Johnson<\/u><\/p>\n President Johnson was the first president impeached, with the House voting by a margin of 126-47<\/a> that he \u201cbe impeached of high crimes and misdemeanors in office.\u201d A week later, the House passed 11 articles of impeachment<\/a> against Johnson. The articles consisted of a number of petty charges and mostly focused on his alleged violation of the Tenure of Office Act.<\/a>\u00a0 The Senate voted on the first 3 articles, falling short of conviction by one vote on each, and never formally addressed the remaining articles.<\/p>\n Mixed Record by Senate<\/strong><\/p>\n Of those impeached by the House, there has been a less than fifty percent conviction rate<\/a> by the Senate:<\/p>\n