Impeachment Blogging

It has already become nearly impossible to keep up with all of the commentary on the impeachment and potential trial of Pres. Trump, so I do not intend to do much additional blogging about it on The Faculty Lounge, unless I can explain something that others have not already said (such as my observation that the senators are not jurors, as published on The Conversation). I may also occasionally recommend articles, or perhaps comment on them.

In that regard, I recommend Noah Feldman's recent essay in The New York Review of Books, which sets out a clear and concise description of the current proceedings, giving fair treatment of the arguments on both sides. Here is the introduction:

Donald Trump’s impeachment by the House of Representatives marks just the third time in history that a president of the United States has had to face trial in the Senate. The charges in the articles of impeachment drawn up by the House Judiciary Committee against Trump differ in important ways from those brought against Presidents Andrew Johnson and Bill Clinton, and they deserve close scrutiny. Trump’s possible defenses also merit careful analysis. Even if Trump does not send a lawyer to the Senate to defend him, he will be defended by Republican senators. And because it appears highly unlikely that he will be convicted by the requisite two thirds of the Senate, it is also worth exploring the implications of impeachment without removal from office, both for Trump’s presidency and for the future of American constitutional democracy.

I do take issue with Feldman's assertion that impeachment itself, even without conviction, is intended to be a Constitutional sanction. He writes:

The meaning of impeachment on its own, even without removal, is underscored by the fact that removal is so difficult. By making it possible to impeach with a bare majority of the House while requiring two thirds of the Senate to remove, the framers’ design anticipated the likelihood that impeachments would not result in removal. That structure only makes sense if they considered impeachment itself to be a sanction. Otherwise they could have required a two-thirds vote in the House to impeach, which would have made it much less likely.

This seems wrong. It is almost universal to demand less certainty to initiate a prosecution than it does to reach a conviction. A criminal indictment requires only a finding of probable cause by a majority of the grand jury, while a conviction requires a unanimous verdict beyond a reasonable doubt. Yet no one would say that an indictment is intended "itself to be a sanction." In fact, we expect quite the opposite, even where charges have been dismissed or resulted in a hung jury. Only a conviction is a conviction.

Of course, impeachment carries a stigma, depending on the circumstances. Andrew Johnson's historical reputation has suffered much more than Bill Clinton's.

Note: Yes, I know that two states do not require unanimous verdicts for conviction, and that SCOTUS has already heard argument in Ramos v. Louisiana.

Comments

[Jennifer S Hendricks]

I think the analogy to criminal prosecution is not quite apt here, for reasons that overlap with your points for distinguishing senators from jurors. Given all that has to happen to produce an impeachment, it seems unlikely that the senate trial will ever really turn on fact finding. The question isn't "did he do X" but "should he be removed." Impeachment by the house seems at least as bad as censure, with the degree of historical stigma judged in line with your Johnson/Clinton comment.

[Steven Lubet]

Yes, I agree. Impeachment is at least as bad as censure. It is even worse, in at least one sense, because a censure can be expunged -- as was the case with Andrew Jackson's censure by the Senate -- while a president cannot be unimpeached.

Re Jackson: https://www.senate.gov/artandhistory/history/minute/Senate_Censures_President.htm