Impeachment Talk Is Mounting. But How Would It Work?

Download Audio
An engraving showing the impeachment trial of President Andrew Johnson in the Senate on March 13, 1868. (Library of Congress)
An engraving showing the impeachment trial of President Andrew Johnson in the Senate on March 13, 1868. (Library of Congress)

After President Trump fired FBI Director James Comey and after reports that Trump asked Comey to stop an investigation into Trump’s former national security adviser Michael Flynn, several critics of the president — Republicans and Democrats — have raised the issue of impeachment.

Here & Now's Jeremy Hobson talks with Allan Lichtman (@AllanLichtman), professor at American University and author of the book "The Case for Impeachment," about the history of impeachment and how the process works.

Interview Highlights

On whether there's something different about calls for President Trump's impeachment, compared to previous presidents

"I think there is. I've disagreed politically with many presidents. But I've never suggested that they are impeachable. We should not be impeaching Donald Trump because we don't like his policies, we don't like his style, we think he's too brash. Rather, as the great expositor of impeachment — and the Constitution — Alexander Hamilton said, 'We move to impeachment because of the misconduct of public men, the violation of some public trust, and these relate to injuries done to society itself.' And we have certainly seen at least probable cause of that, if not proof of that, as yet.

"Certainly, there is probable cause of obstruction of justice, when it comes to investigation of collusion with the Russians. There is certainly probable cause of violation of the emoluments clause of the Constitution, which basically says a president can't take anything of value from a foreign power. We've already seen Trump take things of value. For example, while president, he received approval from China for some 38 potentially lucrative trademarks. So we are really in uncharted territory here when it comes to possible impeachment. And the charges hanging over — and I call them 'charges,' because they're not proven yet — Donald Trump are vastly more serious than the charges involving Bill Clinton, which mostly had to do with covering up a private, consensual affair, and in many ways they're even more serious than the charges in Watergate, because they involve an attack on our democracy, the foundations of our nation, by a foreign power."

On how the impeachment process starts

"I'm very careful to use the word 'charges' or 'allegations,' because at this point, nothing is yet proven and investigations are still ongoing. The framers quite advisedly put the power to impeach not in the courts, but in the Congress, in an elected body. That means, impeachment is not a strictly legal process. It doesn't require an indictable, criminal act. Rather, it is a combined legal, moral and political process, left to the judgement of the U.S. House of Representatives. And typically, you would get an impeachment investigation, in the House Judiciary Committee, which by majority vote would decide whether or not to recommend articles of impeachment to the full House. If they recommend such articles, the full House — by majority vote — would vote them up or down. And if articles are voted out of the House, the case moves on to the United State Senate, which tries the president with the chief justice of the United States Supreme Court presiding, and the standards are higher here. It takes a two-thirds vote of senators present to convict and remove a president. So it's a two-step, maybe even a three-step process."

On President Bill Clinton not being removed from office, even though he was impeached

"That's correct, and they didn't come close to convicting him by a two-thirds vote. I've got to make a very important point here though: Impeachment is a distinct, constitutional process, put into the Constitution by the framers as a constitutional, peaceful and orderly means of removing a rogue president. It was an alternative to the way rulers were removed in their own time, typically by assassination or revolution. We now have an independent counsel. But, the independent counsel is not an impeachment investigator. His task is not to decide whether or not the president merits impeachment. His task is to look into criminal activity. If he finds criminal activity on the part of the president, he certainly could recommend impeachment as Ken Starr did in the Bill Clinton case, but that's not his task.

"In Watergate, we had the special prosecutor, but we also had a separate, ongoing impeachment investigation by the U.S. House of Representatives Judiciary Committee, which is very different — it doesn't only have to consider criminal activity. It could consider, as Alexander Hamilton pointed out, 'abuses of power that harm our society.' Let's also remember: The independent counsel works in secret. We may never know what the results of that investigation might be. These independent counsels typically take years to complete their work, and, as we saw in the Watergate case, a president could find someone in the Department of Justice to fire the independent counsel. So that's why an independent counsel is not enough. We also need, constitutionally, a separate and distinct impeachment investigation in the U.S. House Judiciary Committee, which would consider all possible grounds for impeachment — including conflicts of interest — which may not be criminal, but are still violations of the Constitution. That's what we had in Watergate, that's what we need now. Otherwise, Donald Trump is to a great extent off the hook, maybe for a very long time."

This article was originally published on May 18, 2017.

This segment aired on May 18, 2017.



More from Here & Now

Listen Live