Could America actually say ‘you’re fired’?
Welcome to the Glad You Asked series, a shame-free zone where we tackle topics you’re too embarrassed to ask even your BFF about. Don’t worry, we gotchu.
The past few days have been a whirlwind. On Monday, The Washington Post reported that Trump disclosed highly classified intelligence to the Russian ambassador and foreign minister. On Tuesday, the New York Times broke news that former FBI Director James Comey wrote a memo in February apparently saying Trump asked him to “let go” of the investigation into Michael Flynn (Trump’s former national security advisor), because Flynn was “a good guy.”
On Wednesday, lawmakers were openly calling for Trump to be impeached from the House floor.
So: could he really get impeached?
Let’s take a look. Before we dive in, you should know that impeachment doesn’t mean a president gets removed from office. For that to happen, two-thirds of the Senate have to vote in favor of sacking him.
But let’s not get ahead of ourselves. Here’s a breakdown of the process:
Step 1: Grounds for Impeachment
When a president does something that may constitute an act of treason, bribery or “other high crimes and misdemeanors,” the Constitution gives power to Congress to remove the president from office. It’s the ultimate form of checks and balances.
The problem is that treason, bribery and “high crimes” are vague categories. Former president Gerald Ford notoriously described impeachable offenses as “whatever a majority of the House of Representatives considers it to be at a given moment in history.” Woof, that’s a legal nightmare waiting to happen.
To simplify things, legal scholars have reviewed past impeachment attempts and created three categories for what can get the president dismissed from office:
- Overstepping the bounds of presidential office as it’s described in the Constitution
- Behaving in a way that’s incompatible with the understood purpose of the presidential office
- Abusing the power of presidential office?—?or using it for personal gain
If Congress deems that even one of the president’s actions fit into one of these categories, the impeachment process begins.
Step 2: It starts with the House of Representatives
Impeachment must begin in the US House of Representatives. Any House member can begin the process by presenting their reasons to the House Judiciary Committee, a group of representatives that oversees processes in the federal courts.
Next, the committee presents its findings to the full House. They must explain why impeachment is viable or not. If you’re curious, here are the articles of impeachment for Bill Clinton. (The articles of impeachment is a report the House writes that explains the legal justification for sacking the president.)
Then the entire House debates and votes on each article. If any one article is approved by a simple majority?—?in the House, this is 218 of 435 votes?—?the president is impeached.
But, again, impeachment itself doesn’t actually remove a president from office. For that to happen, the Senate steps in.
Step 3: The Senate votes
Once the House delivers an impeachment charge, the Senate decides if they wish to hold a trial. If they don’t, the whole thing is kaput.
If they do hold a trial, the president appoints a team of lawyers to represent him and must testify before a prosecution team made up of House lawmakers. The Chief Justice of the Supreme Court presides; all 100 Senators act as jury.
After the trial, the Senate deliberates in private and then holds a public-session vote. If 67 Senators (i.e. two thirds of the Senate) uphold even one article of impeachment, the President is removed from office.
The impeachment process can last months before Congress arrives at a final decision. Partly because it’s such a cumbersome process, impeachment has only been seriously discussed four times in US history:
- In 1843, the powerful Whig Party tried (and failed) to impeach John Tyler, the 10th president, as punishment for Tyler vetoing a number of bills the Whigs were trying to make into law.
- In 1868, Andrew Johnson became the first president to be impeached by the House. (Johnson angered lawmakers by removing his secretary of war, Edwin Stanton.) The Senate later acquitted him, allowing him to finish his term.
- In 1974, as Congress debated whether to impeach Richard Nixon for obstruction of justice connected to the Watergate scandal, Nixon resigned.
- The House impeached Bill Clinton in 1998 for lying under oath about his affair with Monica Lewinsky, but was acquitted by the Senate and served the remainder of his term.
Forced removal from the presidential office as a result of an impeachment trial has literally never happened.
Will the 45th president change that?
A conflict of interest
Before Trump was even inaugurated, legal scholars and analysts discussed whether Trump’s business dealings presented a conflict of interest that would constitute an impeachable offense.
Richard Painter, a University of Minnesota law professor who served as chief ethics counsel to George W. Bush, told ThinkProgress in November that Trump could be in violation of the “Emoluments Clause” of the Constitution. This clause states that no person holding US office can accept any type of gift from foreign states. Painter believes that an event Trump held at his $212 million hotel in Washington DC directly violates this clause since Trump was inviting foreign leaders to stay there.
Cozying up to the Russians
Trump’s disclosure of classified intelligence to two top Russian officials probably wasn’t illegal. “The nature of the system is that the President gets to disclose what he wants,” the Lawfare blog notes. However?—?as Lawfare points out?—?if Trump revealed this information through carelessness or neglect, it could be a violation of his oath of office. When he was inaugurated, Trump swore to “faithfully execute the Office of President of the United States” and to “preserve, protect and defend the Constitution of the United States.” Giving away valuable information to a hostile foreign power probably doesn’t count as faithful presidential conduct.
Even though there may be legal justification for impeaching Trump, getting Congress’s support will be problematic. For an impeachment proceeding to even reach the Senate, every Democrat in the House?—?plus at least 26 Republicans?—?would have to vote in favor of it.
And even if that happened, all the Democrats in the Senate?—?and nearly two dozen Republicans?—?would have to vote in favor of kicking out the president.
So, could Trump be impeached? Yes. Will it actually happen? That’s still unclear. Whether it’s a good or a bad thing is something you’ll have to decide for yourself.
This article was originally published in January. It has been updated to reflect recent news.