I dislike Trump, but this impeachment is stupid, petty, and totally illegal.
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IMPEACHMENT
The impeachment provisions of the Constitution
839 were derived from English practice, but there are important differences. In England, impeachment had a far broader scope. While impeachment was a device to remove from office one who abused his office or misbehaved but who was protected by the Crown, it could be used against anyone—office holder or not—and was penal in nature, with possible penalties of fines, imprisonment, or even death.
840 By contrast, the American impeachment process is remedial, not penal: it is limited to office holders, and judgments are limited to no more than removal from office and disqualification to hold future office.
Impeachment was a device that figured from the first in the plans proposed to the Convention; discussion addressed such questions as what body was to try impeachments and what grounds were to be stated as warranting impeachment.
841 The attention of the Framers was for the most part fixed on the President and his removal, and the results of this narrow frame of reference are reflected in the questions unresolved by the language of the Constitution.
Persons Subject to Impeachment
During the debate in the First Congress on the “removal” controversy, it was contended by some members that impeachment was the exclusive way to remove any officer of the government from his post,
842 but Madison and others contended that this position was destructive of sound governmental practice,
843 and the view did not prevail. Impeachment, said Madison, was to be used to reach a bad officer sheltered by the President and to remove him “even against the will of the President; so that the declaration in the Constitution was intended as a supplementary security for the good behavior of the public officers.”
844 While the language of section 4 covers any “civil officer” in the executive branch,
845 and covers judges as well,
846 it excludes military officers,
847 and the precedent was early established that it does not apply to members of Congress.
848
Judges.
Article III, section 1 specifically provides judges with “good behavior” tenure, but the Constitution nowhere expressly vests the power to remove upon bad behavior, and it has been assumed that judges are made subject to the impeachment power through being labeled “civil officers.”
849 The records in the Convention make this a plausible though not necessary interpretation.
850 And, in fact, eleven of the fifteen impeachments reaching trial in the Senate have been directed at federal judges, and all seven of those convicted in impeachment trials have been judges.
851 So settled apparently is this interpretation that the major arguments, scholarly and political, have concerned the question of whether judges, as well as others, are subject to impeachment for conduct that does not constitute an indictable offense, and the question of whether impeachment is the exclusive removal device for judges.
852
Judgment—Removal and Disqualification
Article II, section 4 provides that officers impeached and convicted “shall be removed from office”; Article I, section 3, clause 7 provides further that “judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.” These restrictions on judgment, both of which relate to capacity to hold public office, emphasize the non-penal nature of impeachment, and help to distinguish American impeachment from the open-ended English practice under which criminal penalties could be imposed.
853
The plain language of section 4 seems to require removal from office upon conviction, and in fact the Senate has removed those persons whom it has convicted. In the 1936 trial of Judge Ritter, the Senate determined that removal is automatic upon conviction, and does not require a separate vote.
854 This practice has continued. Because conviction requires a two-thirds vote, this means that removal can occur only as a result of a two-thirds vote. Unlike removal, disqualification from office is a discretionary judgment, and there is no explicit constitutional linkage to the two-thirds vote on conviction. Although an argument can be made that disqualification should nonetheless require a two-thirds vote,
855 the Senate has determined that disqualification may be accomplished by a simple majority vote.
856
Impeachable Offenses
The Convention came to its choice of words describing the grounds for impeachment after much deliberation, but the phrasing derived directly from the English practice. On June 2, 1787, the framers adopted a provision that the executive should “be removable on impeachment & conviction of mal-practice or neglect of duty.”
857 The Committee of Detail reported as grounds “Treason (or) Bribery or Corruption.”
858 And the Committee of Eleven reduced the phrase to “Treason, or bribery.”
859 On September 8, Mason objected to this limitation, observing that the term did not encompass all the conduct that should be grounds for removal; he therefore proposed to add “or maladministration” following “bribery.” Upon Madison’s objection that “o vague a term will be equivalent to a tenure during pleasure of the Senate,” Mason suggested “other high crimes & misdemeanors,” which was adopted without further recorded debate.
860
The phrase “high crimes and misdemeanors” in the context of impeachments has an ancient English history, first turning up in the impeachment of the Earl of Suffolk in 1388.
861 Treason is defined in the Constitution.
862 Bribery is not, but it had a clear common law meaning and is now well covered by statute.
863 “High crimes and misdemeanors,” however, is an undefined and indefinite phrase, which, in England, had comprehended conduct not constituting indictable offenses.
864 Use of the word “other” to link “high crimes and misdemeanors” with “treason” and “bribery” is arguably indicative of the types and seriousness of conduct encompassed by “high crimes and misdemeanors.” Similarly, the word “high” apparently carried with it a restrictive meaning.
865
Debate prior to adoption of the phrase
866 and comments thereafter in the ratifying conventions
867 were to the effect that the President (all the debate was in terms of the President) should be removable by impeachment for commissions or omissions in office which were not criminally cognizable. And in the First Congress’s “removal” debate, Madison maintained that the wanton dismissal of meritorious officers would be an act of maladministration which would render the President subject to impeachment.
868 Other comments, especially in the ratifying conventions, tend toward a limitation of the term to criminal, perhaps gross criminal, behavior.
869 The scope of the power has been the subject of continuing debate.
870
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