by Jason Swindle, Criminal Defense Attorney, Swindle Law Group P.C.      

 “I, for one, stand determined not to let this happen! Our voice will be heard, and we will fight back against this partisan, unfair and corrupt impeachment process.”  Congressman Drew Ferguson – December 18^th, 2019 – Floor of the United States House of Representatives.

In America’s 243-year history, only three presidents have been impeached by the U.S. House of Representatives (House). Presidents Andrew Johnson and William Jefferson Clinton were each acquitted in the Senate trial.  We will see another acquittal in the coming months when President Trump faces trial.

It has been widely reported that President Nixon was impeached.  This is not true.  The Democratic-controlled House Judiciary Committee passed three articles of impeachment against Nixon for obstruction of justice, abuse of power, and obstruction of Congress.

However, after Republican senators told him he’d lost their confidence, Nixon resigned before a vote on the articles of impeachment could take place.

All three impeachments were motivated by politics, aimed at removing a lawfully elected president, and used as a political platform for the next presidential election.  The opposing party won the next presidential election when Johnson and Clinton were impeached.

The biggest problem with impeachments is that the Constitution nor federal law provide a specific process to carry out an impeachment.  This leaves the majority party in Congress to set their own rules.

Basically, impeachments create political show trials in America. 

INVESTIGATION – The majority party in the House instructs their committee chairs to begin investigations regarding some sort of criminal or ethical wrongdoing by a president.

INITIATION – The Speaker of the House (Speaker) announces a formal impeachment inquiry, directing a handful of House committees to continue their work.  The committees issue subpoenas, take depositions, and elicit testimony.  This is done behind closed doors.

HOUSE VOTE ON IMPEACHMENT RULES – The House votes to approve a resolution that lays out the rules for the impeachment inquiry into a president.

PUBLIC HEARINGS – After a closed-door investigation, the House actually opens hearings to the public.  Reports are gathered and made available to the public as well.

JUDICIARY COMMITTEE HEARINGS – After receiving the reports from other committees, , the House Judiciary Committee will hold further hearings.  Then, proposed articles of impeachment are released.  The two proposedarticles of impeachment against President Trump are (1) abuse of power and (2) obstruction of Congress.  The committee votes to approve the articles and they are sent to the full House for a vote.

HOUSE DEBATE AND VOTE –  The House Rules Committee sets out the rules for formally impeaching the president and setting time limits on debate.  Afterwards, the House votes.

On December 18^th, 2019, The House passed the two articles of impeachment, along party lines.  To pass, a majority of House members would have to vote “yes.”

Article I: Abuse of Power – Yes 230 – No 197

Article II: Obstruction of Congress – Yes 229 – No 198

President Trump now stands impeached.  However, he has not been convicted of anything.

TRIAL PREPARATION – The House appoints a team of lawmakers known as managers to play the role of prosecutors in the Senate trial. The managers present the articles of impeachment to the Senate, which would serve as the jury (except they get to ask questions during trial, unlike regular citizen-jurors). 

The Chief Justice of the United States is sworn in to preside over the trial and then swears in the members of the Senate.  Chief Justice John G. Roberts Jr. will preside over this trial.

WRIT OF SUMMONS – The Senate will issue a summons to the President, asking him to respond to the articles of impeachment by a set date.  If the President declines to respond to the impeachment articles, his action would be regarded as a plea of not guilty.  However, there will be a robust response here.

TRIAL – Similar to jury trials across the country, there will be opening statements, examination of evidence, and closing arguments.

DELIBERATION – Deliberations happen in a closed session.

VERDICT – The Senate will vote on each article of impeachment separately. A conviction would require a two-thirds vote onone or more articles.  Currently, the Senate is comprised of 45 Democrats, two independents who vote with Democrats, and 53 Republicans.  Since it will take more than two-thirds of the Senate to vote yes in order to convict President Trump and remove him from office, he will be acquitted.  Senate Democrats just don’t have the numbers.

As we can see, the American Impeachment/Trial process is a disaster.  Only a Constitutional Amendment that stresses due process, specific rules, and specific criminal laws can fix this problem.