About Impeachment, Constitution Article 1 §3.6

Democracy is hard, but it helps if you know what you’re doing. I want to be better at democracy so I’m studying the Constitution, and blogging what I learn. I read through the entire Constitution on Memorial Day. It was a short read, and seemed simple. But it’s kind of dry and easy to skim over. So now I’m going back through and studying each clause to make sure I really get it.

Let me know if you think I don’t, or if you have insights I miss. After all, in a functioning democracy we should all be Constitutional scholars.

I’m currently reading the first article of seven. Article One deals with the legislative branch of government and has 10 sections. Section One establishes a bicameral Congress and Section Two deals with the House of Representatives. I’m currently reading Section Three, which deals with the Senate. Today is Clause 6.

Article 1 §3.6

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Let’s dig in.

The Senate shall have the sole Power to try all Impeachments.

In what read like an afterthought in Article 1 §2.5, the House of Representatives was established as the only body in the United States that could call for the impeachment of the president. So when the House calls for impeachment, the Senate gets to do something about it. Sometimes the entire American government seems like a giant exercise in the childhood “you cut and I’ll choose” method of sharing. Except with power instead of cookies.

When sitting for that Purpose, they shall be on Oath or Affirmation.

What does that mean? What kind of oath? The Heritage Foundation website says this:

The requirement that Senators be on Oath or Affirmation in impeachment trials was plainly designed to impress upon them the extreme seriousness of the occasion.

Searching Dictionary.com for “on oath” you get the result for “under oath”

1. having sworn to tell the truth, especially in a court of law.

So if “on oath” is an old-fashioned way of saying “under oath” I guess the phrase just means that the Senators are acting as jurors and should treat it like a real legal case. It seems like the use of the words “impeachment” and “try” earlier in the clause already serve that purpose, but I didn’t sleep well last night and maybe I’m just stupid today. No one else seems to care about the phrase “on oath or affirmation.” The annotated Constitution says, “The Supreme Court has not interpreted these clauses”; Heritage Foundation has no comment; even Schmoop feels no explanation is needed. I’ll drop it now. Moving on.

When the President of the United States is tried, the Chief Justice shall preside

When we hear the word “impeachment,” we automatically think of the president (at least I do) but any public official is subject to impeachment. Well, sort of. The very first time the House impeached someone the question of “who is impeachable?” came up. The Senator from what would later be called Tennessee tried to solve his financial problems by conspiring to help the British conquer parts of Spanish North America. When the plot was uncovered in 1797, the House voted to impeach him. The next day the Senate voted to expel him. Eventually his impeachment foundered and was dismissed when President Jefferson and the Senate determined that the Senate had no jurisdiction over its own members beyond its constitutional right to expel members by a two-thirds majority vote.

So under “normal” impeachment, the Senate manages the job by itself. When the president gets impeached, they call in the Chief Justice to run the show.

And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Unlike a trial by jury, in which a decision must be unanimous, an impeachment is decided like an important Senate vote, with a 2/3 majority required for conviction.

Historical Impacts

Impeachment has rarely been a hot topic. It’s only really exciting when it involves the president, and that has only happened twice so far. Presidents Andrew Johnson and Bill Clinton were impeached by the U.S. House of Representatives, but acquitted by the Senate. Richard Nixon probably would have been impeached, but he resigned before the House could get to it.

Andrew Johnson (#17, and coincidentally, from Tennesee) was the only Southern elected to remain loyal to the U.S. during the Civil War, and took over after Lincoln’s assassination. He is a big part of the reason that the South received the lenient treatment of a vanquished foe rather than the retribution usually reserved for treasonous rebellions and mutiny. Congress didn’t like that, and in February 1868, the House of Representatives voted to impeach him, charging him with, among other things, violating the Tenure of Office Act by suspending Secretary of War Edwin Stanton, who opposed his reconstruction approach. The Senate acquitted Johnson by one vote.

Bill Clinton (#42) was impeached in 1998 for perjury and obstruction of justice in connection with sexual misconduct. He was acquitted with a clear majority.

Relevance today

And what about 45? Talk of impeachment started before his inauguration, and has built in intensity all year. Slate’s daily Impeachometer “analysis” hit 65% probability after Trump failed to condemn hate crimes in Charlottesville, while HuffPo ran the headline “It’s time to impeach Trump.” It’s not just pop culture websites stirring the impeachment pot, either. Senator Cohen from Tennessee (a state intimately familiar with the process) has announced that he will introduce articles of impeachment against Trump. If he follows through, he won’t even be the first to do so. On July 12, Rep. Brad Sherman of California filed an article of impeachment accusing Trump of obstructing investigations into Russian meddling in the 2016 presidential election, in part by firing former FBI Director James Comey. In July, Sherman seemed to be tilting at windmills. Cohen’s chances of success may not be much greater, but with there’s still a lot of time left in this term, and recent events with North Korea have got some people thinking that even President Pence doesn’t sound as scary as leaving Trump in charge of nuclear codes. It isn’t too far-fetched to imagine that we may become much more familiar with the intricacies of impeachment before the current president’s term is up.