An Impeachment Primer
Moments ago, House Speaker Nancy Pelosi (D-Calif.), flanked by the chairs of the committees of jurisdiction over the House’s impeachment inquiry over the last several months (Oversight, Intelligence, Ways and Means, Financial Services, and Judiciary) announced her intention to have the House consider two articles of impeachment against President Trump. I thought I’d provide a quick primer on what’s happened this morning and what we can expect in the days and weeks ahead.
The Articles
Speaker Pelosi and the chairmen and women unveiled two articles of impeachment: one charging the President with abuse of power for allegedly seeking the Ukrainian government’s assistance in investigating a potential political rival in exchange for disbursing military aid that had been approved by Congress and another for obstructing Congress by allegedly attempting to conceal from the House Intelligence, Financial Services, Judiciary, Ways and Means, and Oversight committees the extent of the efforts within the White House to tie disbursement of aid to Ukraine to an investigation of Joe and Hunter Biden.
Next Steps in the House
With the articles of impeachment themselves now public, the Judiciary Committee intends to hold a formal vote on recommending them to the full House’s consideration by the end of this week. No Republicans on the committee are expected to support either of two articles of impeachment, but all of the Judiciary Committee Democrats likely will. The Democrats, as the House majority party, enjoy a 24-19 advantage on the Judiciary Committee, so the articles will be recommended to the House on what will likely be a party-line vote. For historical context, all three of the impeachment articles the House Judiciary Committee adopted against President Nixon in 1972 had bipartisan support, with six, seven, and two Republicans joining the committee’s Democrats in voting “aye.” (The committee rejected two additional articles of impeachment against President Nixon, again on bipartisan votes.) The Judiciary Committee did not recommend to the full House articles of impeachment against President Clinton in 1998, as House leadership concluded that the investigation led by Ken Starr was sufficient grounds for the full House to consider the articles.
Following the House Judiciary Committee’s adoption of two articles of impeachment at some point late this week – or even this weekend – the full House will consider impeaching President Trump next week. The outcome is, at this point, preordained. President Trump will become the third sitting President to be impeached by the House of Representatives, joining Presidents Jackson and Clinton. (When it became clear that Nixon’s support in Congress had evaporated, he resigned from office just before the House was set to vote on his impeachment.) Democrats currently have a 233-197 majority in the full House (there are four seats currently vacant), and all but potentially two Democrats have signaled their intention to support impeaching the President. While there is an outside chance that a handful of Republican members of the House could support one or both articles of impeachment – these are members who have either announced their intention not to seek reelection next year or who represent left-leaning districts – it would be a surprise to any significant GOP support for either article. Rep. Justin Amash from Michigan, who left the Republican Party earlier this year and became an independent, is also likely to support impeaching President Trump.
Onto the Senate
Once the House approves its impeachment articles, the Senate is required under the Constitution to hold a trial to consider them. While there had initially been some thought that Senate Majority Leader Mitch McConnell (R-Ky.), who has called the House’s impeachment inquiry “laughable,” would seek to fast-track the Senate’s consideration of impeachment to save his conference from having to vote on them, McConnell has publicly committed, repeatedly, in recent weeks to a full-scale Senate trial. McConnell and Senate Democratic Leader Chuck Schumer (D-N.Y.) will seek to forge a bipartisan agreement on the rules governing the Senate’s trial of President Trump. There is precedent for this: the Senate voted 100-0 to approve the rules governing President Clinton’s trial in 1999. That was, of course, in a significantly less hyper-partisan time period (though it didn’t feel like it at the time.) Presuming McConnell and Schumer cannot agree to rules, McConnell will have to cobble together 51 votes from the GOP members of the Senate – of which there are currently 53 – to formally adopt the rules of the trial. Once the Senate adopts a resolution implementing the rules of the trial, the proceedings begin.
Historically, the Chief Justice of the Supreme Court serves as the judge in the Senate during trials of sitting presidents. The “prosecutors” in the trial are appointed by the House of Representatives, and are typically the members who were most involved in investigating the alleged offense(s) and shepherding impeachment through the House. It’s a safe bet that House Intelligence Committee Chairman Adam Schiff (D-Calif.), House Judiciary Committee Chairman Jerry Nadler (D-N.Y.), and House Oversight Committee Chairwoman Carolyn Maloney (D-N.Y.), who succeeded the late Oversight Committee Chairman Elijah Cummings (D-Mary.) last month, will serve this role in this instance. The President is entitled to appoint his own defense counsel. The 100 sitting members of the Senate act as the jury. As is the case in any trial, the prosecution is provided the opportunity to submit evidence, including witness testimony, and the defense is afforded the ability to rebut the prosecution’s arguments, present its own evidence, and bring forth its own witnesses. Following the completion of the arguments, the Senate adjourns into a closed session during which the “jury” deliberates privately.
There are only two historical precedents from which to gauge how long a Senate trial may last: the trials of Presidents Jackson and Clinton. The Senate’s trial of President Jackson lasted nearly three months, from March 2, 1868 to May 26, 1868, with the Senate deliberating privately for about 10 days before *very* narrowly voting not to remove Jackson from office. President Clinton’s trial was significantly shorter, beginning on January 7, 1999 and ending on February 12, 1999. The Senate deliberated for only three days before keeping Clinton in office, as well.
Given the political realities of the Senate’s party composition, and the nearer-term precedent of the Clinton Senate trial, we should expect a Senate trial that looks closer in terms of timing to President Clinton’s than to President Jackson’s. A trial will therefore likely start in January and conclude at some point in early to mid-February, barring any unforeseen developments. It is, at the moment, extremely unlikely that the Republican-led Senate will vote to remove President Trump from office, as the Constitution requires not just 51 of the Senate’s 100 votes to do so, but a two-third majority. While there is some possibility that one or two Senate Republicans could vote to convict President Trump on one or both of the articles of impeachment, there is no evidence to suggest that the President’s support amongst GOP senators has waned. Accordingly, we should expect the entire impeachment and trial process to be over no later than the end of February, with President Trump remaining in office.
Complications
Politics and governing being intertwined, there are some interesting complications to consider as it relates to congressional activity on impeachment. For one: the House and Senate passed, just before Thanksgiving, legislation that extends government funding through December 20th of this year. If Congress fails to enact another extension of funding – or longer-term appropriations bills – or if the President decides not to sign that legislation into law, government funding expires and the federal government shuts down. December 20th is, coincidentally, the end of next week, right around the same time at which we expect the House to make President Trump just the third President of the United States to be impeached. Will he sign a funding bill passed by the House into law within hours of being impeached?
Additionally, House Democrats are expected to announce later this morning that they have reached an agreement in principle to support the Trump administration’s renegotiation of NAFTA, which is now dubbed the U.S.-Mexico-Canada (USMCA) trade agreement. The trade deal is one of the President’s signature campaign promises and, if ratified, would be arguably his biggest legislative accomplishment since assuming the presidency in 2017. Will House Democrats be willing to hand President Trump a legislative victory within days of impeaching him?
Regardless of one’s political views, there’s no arguing that the days ahead are historic, for better or for worse. But, at a minimum, hopefully this primer provides some more clarity into what to expect procedurally between now and the end of February.