Today’s Campaign Update – Guest Piece by Larry Schweikart
(Because The Campaign Never Ends)
[Note: I have followed Larry Schweikart, American historian and retired professor of history at the University of Dayton, on social media for several years. After reading several threads he posted on his Twitter account (@LarrySchweikart) regarding the history of impeachment in the U.S. and as it related to our current situation, I reached out to him. He agreed to contribute this piece to help inform the loyal readers of Today’s Campaign Update. Larry is the co-author andauthor of several great books, including A Patriot’s History of the United States and his latest, REAGAN: The American President.
Trust me, after you read this, you will know more about impeachment than 99% of the U.S. population.]
The Essentials of Impeachment. (It’s more than you think!)
There is a lot of talk about “impeachment” out there, most of it uninformed. Impeachment can (and in most cases historically, did) involve judges as well as a president. Indeed, since 1803, there have been 63 impeachment proceedings, and only two involved presidents—Andrew Johnson and Bill Clinton.
The Constitution provides for the removal of judges (who generally have lifetime appointments) and U.S. presidents for “high crimes and misdemeanors.” What are those? Well, realistically, it is whatever the House of Representatives says it is. The House alone is charged by the Constitution with defining behavior that rises to the level of “high crimes and misdemeanors.” And it can be anything. Literally, anything that a majority of the House votes for can be a “high crime or misdemeanor.” Spitting on the sidewalk. Using “he” when talking to a “she” transgenderist. You get the picture. The Constitution did not define the terms. In the case of the 61 judges impeached, all had actually committed real crimes ranging form bribery to jury tampering to conflict of interest violations.
Under the Constitution, the House must pass articles of impeachment, which are the charges against said judges or presidents. Once articles of impeachment pass the House, they are sent to the U.S. Senate for a trial. A notice must be sent to the person charged, and there are a few other formal steps that must be taken, but shortly the Senate receives the articles of impeachment. Following a trial—more on that later—the Senate acquits or convicts but conviction must be by a 2/3rds vote (in today’s case, 67 votes to convict, or a very high bar). The past two impeachments have lasted three and four months respectively from passage of the articles to acquittals.
Let’s first look at some judicial impeachments. The following judges were impeached:
*John Pickering (1803)
**West Humphreys (1862)
*Robert Archbald (1912)
*Halsted Ritter (1933)
*Harry Claiborne (1983)
*Alcee Hastings (1989)
*Walter Nixon (1989) Nixon was removed, and he appealed to the U.S. Supreme Court, which rejected his appeal as a non-justicable political question.
*Thomas Porteous, Jr. (2010)
In addition to those convicted by the senate and removed, 16 judges who were being investigated resigned, and 2 died in the process of the proceedings. One (Agilar) had his conviction overturned.
Moving to the impeachments of U.S. presidents, the first, in March 1868, was by a Republican House (dominated by the so-called “Radicals”) contended with Lincoln’s vice president, Andrew Johnson . . . who was a Democrat. Lincoln thought he would not win reelection, and brought in Johnson to draw Democrat votes. After Lincoln’s assassination, the hated Johnson became president. He completely opposed the Radicals’ Reconstruction plans, and used his legal, Constitutional authority to obstruct them. The Republican Congress overrode two Johnson vetoes on the Reconstruction Acts.
Rather than trying to accommodate the Republican Congress, the belligerent Johnson fought it. He was looking for a confrontation, and got it. The issue involved the Reconstruction Acts, which placed Union generals in charge of five Southern districts. Johnson sought to replace Radical generals governing the South with more pliable or friendly men. Congress countermoved by passing the Tenure of Office Act requiring the president to get the approval of the Senate before removing a general. Johnson flagrantly fired Edwin Stanton, a Radical favorite, to bring about a constitutional test. (In fact, he should have filed a court challenge and let the Supreme Court decide it).
[Note: Email Larry Schweikart at email@example.com and he will provide you with a free Reagan webinar and an Excellence in Business webinar.]
The House filed 11 articles of impeachment. The only serious article of the 11 (which included several “conspiracy” claims) was the final article, 11, which literally accused Johnson of “bringing disgrace and ridicule to the presidency.” (One could suggest at least one recent president had done that, repeatedly!). Keep in mind it is the House’s duty—and only the House’s duty—to define the “high crimes and misdemeanors.” The Senate is charged by the Constitution only in determining guilt or innocence, not again weighing in on whether the actions rise to the level of “impeachability.” Still, as we will see, in both U.S. presidential impeachments, the Senate ran well outside its Constitutional authority.
In the Johnson trial, the Senate failed to convict by a single vote of reaching the necessary 2/3rds (35-19) with one of the key senators later being praised in John F. Kennedy’s book, Profiles in Courage. That would be the junior senator from KS, Edmund Ross. Ross and others determined that the charges did not rise to the level of impeachment. Well, in this case they did—Johnson had clearly violated the law—but the Senators did not think it was good for the Republic to convict Johnson. Thus the Senate defied the Constitution, but probably did the “right” thing.
When Richard Nixon was under investigation in 1974, he almost certainly was facing impeachment (for the right reasons) but he resigned before an impeachment vote was held.
In the 1990s, Bill Clinton was accused by a special counsel of committing perjury, coaching a witness, submitting a false statement, and obstruction of justice. Eventually, the House passed two articles of impeachment (perjury, 228-2016) and obstruction (221-212). The Senate then took up the trial. Two weeks into the Senate trial, Senator Robert Byrd of West Virginia introduced a motion to dismiss. This motion only failed by seven votes—despite overwhelming evidence of Clinton’s guilt. Once again, the Senate did not do its Constitutional duty, again wading into issues of questioning whether the charges rose to the level of impeachability. Clinton was acquitted. As one Democratic staffer told the Republican “prosecutors” from the House, “there wouldn’t be 67 votes to convict if they had found a dead body in the Oval Office.”
So where does this put us today? First, there is a question of whether or not Speaker Nancy Pelosi has the votes. I submit she doesn’t or she would file for an impeachment vote right away, not an “investigation.” That makes news, but it is not an impeachment vote.
But say she does find the votes and the House impeaches President Donald Trump. Next up is a Senate trial. As in 1999, the Senate “could” entertain a motion to dismiss without a trial. I do not think this is out of the realm of possibility. Such a motion needs only 50 votes, and Mike Pence can break a tie.
My current math—based on no inside info whatsoever—suggests Trump has 34 hard acquittal votes already (meaning he is already out of the woods), with another 10 “squishy” Republicans who will see which way the wind blows before voting. That brings us to 44, or just six short of dismissal. Out of the remaining GOP senators, while I could see some balking at an outright dismissal, I only see perhaps two defecting to convict—Mitt Romney and maybe Mike Lee. Many of the Senators are in tight races in 2020, and they simply cannot risk having the whole GOP base stay home, which is exactly what would happen if they voted to convict.
Now, don’t get me wrong: I think stories that “30 GOP Senators would convict Trump” are true if you take the voters out of it. Of course these toads want to get Trump out. He has overturned the entire apple cart. But in a public vote? No. Trump will come close to 50 acquittals and needs only 37. If the charges, though, are extremely frivolous, the Senate may indeed dismiss outright.
Finally, there is a wild card: Ruth Bader Ginsberg. The Democrats want to argue that if RBG dies during impeachment proceedings, that “no president under impeachment should be allowed to appoint a Supreme Court justice.”
This is a massive problem in timing for the Democrats. After all, Ginsburg isn’t cooperating by giving them a date for her demise! If they rush ahead with impeachment and it’s over in four months ending in an acquittal—and Ginsburg is still alive!—then they have lost their “can’t replace” card. But if they wait until Ginsburg cooperates, which might not be in 2020 at all, they stand a chance of losing their impeachment card. Decisions, decisions!
You can find this and lots of other ongoing political and historical analysis, as well as just fun historical columns on music, culture and other topics, at the Wild World of History.com. Some is free, but my new “1620 Default” series—arguing that American Exceptionalism dates from 1620 and the arrival of the Pilgrims, not from the Virginia colony in 1607. Look for the “VIP section.”
Larry Schweikart, Ph.D.
Author, Reagan: The American President and co-author, A Patriot’s History of the United States with Michael Allen.
That is all.
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