Let's Talk About Impeachment
A message from Sean:
Recently, I hosted a town hall where the final question was whether or not we should impeach Donald Trump. That’s a big, meaty question that warrants a more fulsome answer than I was able to give in the few minutes we had remaining at that event.
With that in mind, let’s talk about impeachment. Specifically, let’s talk about the process of impeachment. Because unless we are on the same page about that process, we can’t have an informed conversation about whether any specific federal official should be impeached.
You can dive into my thoughts by reading on or watching the video below.
Article II, Section 4 of the Constitution says:
“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.”
There are two really important points to make about this provision.
First, it contains an implicit guarantee of due process. The officials are not removable by virtue of committing the crimes but only if they are impeached AND convicted of those crimes.
Second, while treason is defined in the Constitution and bribery has a generally understood definition in the law, “high Crimes and Misdemeanors” is an inherently subjective term.
The first point makes impeachment in the House analogous to an indictment by a grand jury - but it is definitively not a conviction. That only comes from a trial held by the Senate.
From a process perspective, the Constitution further stipulates that the House of Representatives has the sole power to impeach and the Senate has the sole power to convict. And both have to happen before an affected official can be removed, and permanently banned from holding federal office. It is also worth noting that while it only takes a simple majority of the House to impeach, a vote of two-thirds of the Senate is required to convict. (You can think of this as roughly analogous to the requirement for unanimity in most criminal jury trials.)
The second point means that there is no objective, unambiguous definition of what constitutes an impeachable offense. Not only are “high Crimes and Misdemeanors” not defined, but there is also no affirmative obligation to impeach any official who commits treason or bribery. The decision to impeach is always political, in the sense that the definition of an “impeachable offense” always depends on the politics of the moment: To see how, ask yourself whether you think that Donald Trump should be impeached if he were to fire Secretary of Defense Hegseth without first securing Senate consent. What if he were found to have lied about having an extramarital affair?
Both are almost certainly not impeachable offenses in today’s political environment but they were in 1868 for Andrew Johnson, and in 1998 for Bill Clinton. That doesn’t make those impeachments wrong, nor does it mean that the current situation is better or worse than those prior moments. It just proves that there is no fixed definition of an “impeachable offense”. It is, and always will be, a subjective and political question.
Which is fine! After all, there is also no objective definition of who can be President, or what laws Congress should pass, or how to balance individual freedoms with collective liberty or any of the other messy questions that our form of government entrusts to democratic, political processes.
And historically, the Congress has not shied away from that political messiness.
The House has impeached various individuals 22 times. This includes one senator, 15 judges (ranging from district court judges to a Supreme Court justice), two cabinet secretaries, and three presidents. Donald Trump is the only person to have been impeached multiple times. In each case, the House concluded that, subject to the facts, norms of the time, and opinions of a majority its members, those individuals had committed an impeachable offense and should be referred to the Senate for a final judgment. In 8 of those 22 impeachments, two-thirds of the Senate voted to convict.
Regardless of your politics, I’ll bet that if you read through all of those 22 impeachments, you would probably conclude that in some portion of those subsequent hearings, the Senate got it wrong. You undoubtedly believe that the politics of that time were insufficient to the challenges of that moment. But before you conclude that this process shouldn’t be politicized, consider the alternative.
History is replete with monarchs who were removed by force, and those removals (no matter how justified) often destabilized an entire society. In creating a political means of removal, subject only to the democratic votes of a democratically-elected representative body, our founders gave us a scalpel: a surgical way to remove a threat to our government without jeopardizing the government itself. That necessarily means that a President cannot be removed without political consensus. As Churchill famously said, democracy is a lousy form of government, except for every other form that has ever been tried. Defending and preserving that democracy is inseparable from wallowing in that messiness.
So let’s now come back to the current moment.
Should Donald Trump be impeached?
Suppose you personally think the answer to that question is yes, but also that you’re clear-eyed about the fact that the current Republican-controlled House doesn’t have the votes to impeach, and the Republican Senate certainly doesn’t have the 2/3rds majority to convict. Does that mean you just throw up your hands and accept that it’s not politically possible? No! You get engaged in the political messiness of democracy. Every American who we celebrate for expanding our democracy - from the suffragettes to the civil rights leaders of the 1960s - earned our praise because they closed the gap between that which was necessary and that which was politically possible. As Condoleezza Rice once said, the goal of politics is to make the impossible inevitable.
All of us have that power.
As relates to Members of Congress, the way to close that gap is to use our oversight and convening power to hold hearings and conduct investigations, including but not limited to a full “impeachment inquiry”. Use those processes to bring facts into the public eye and - if warranted - move the politics and build a consensus. But also have the humility to be open to facts that might contradict our theory. Because it’s the right thing to do, but also because the public is smart enough to know a witch hunt when they see one. Impeachment is a serious process and needs to be conducted with all the solemnity that requires.
Two points of impeachment history make that point.
First, while no President has ever been impeached and removed, Richard Nixon did resign once it became clear he would likely be impeached and convicted. The length of the process that led to his decision to resign is not coincidental: the first investigations into the Watergate break-in commenced in October 1973 but the impeachment vote wasn’t even scheduled until almost a year later in August of 1974.
On the other side, do you remember the most recent impeachment? Probably not. It was not Donald Trump.
Hint: it was in February of 2024.
I’m referring, of course, to Alejandro Mayorkas, Secretary of Homeland Security. An impeachment process commenced 3 months earlier, was widely seen as purely partisan, and the Senate effectively ignored the House’s partisan vote. Whatever you think of the Senate’s vote, there was no political or public will to convict, and so they didn’t.
The point of those two anecdotes is that, in a country built on the rule of law, process matters. Transparency matters. Standards of evidence matter. And if a prosecutor - or a Member of Congress - believes someone has done something that is worthy of punishment, they have to remain committed to all three. Due process has to happen before impeachment, and again before removal.
In other words: when individuals threaten our institutions, defend the institution. To do anything else is to let them win.
In that vein, whether or not Donald Trump should be impeached is, to my mind, the wrong question. The right questions are why did Donald Trump fire the independent inspectors general upon taking office who would normally be a conduit to disclose executive branch violations of law to the Congress? Why has the Republican leadership in the House and Senate not called hearings to question that behavior? Why aren’t they asking questions about the economic conflicts of interest between multiple cabinet secretaries and other Trump advisors and various foreign governments? If sunlight is the best disinfectant, why the embrace of darkness?
My commitment to you - and to our democracy - is to always embrace sunlight in pursuit of the answers to those questions. To fulfill our oversight responsibilities, and to follow those facts where they lead, including but not limited to impeachment when necessary.
I hope this is helpful. And as always, if you have topics you’d like to see covered in a future, please let me know.
Sean