Trump's impeachment fate would depend on 18 Republican senators

Trump's impeachment fate would depend on 18 Republican senators
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House Speaker Nancy Pelosi (D-CA) recently urged the Democrats to focus on finding “the truth” before deciding whether to initiate impeachment proceedings against President Donald TrumpDonald John TrumpTrump conversation with foreign leader part of complaint that led to standoff between intel chief, Congress: report Pelosi: Lewandowski should have been held in contempt 'right then and there' Trump to withdraw FEMA chief nominee: report MORE. I think what Pelosi really meant is that they need to be sure they can make a convincing case for impeachment before they initiate proceedings.

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I was a Judiciary Committee staffer during the Clinton impeachment proceedings, so I know from personal experience that the committee hearings in those proceedings were not intended to determine whether Clinton “should” be impeached. The Republicans had decided to impeach Clinton before they initiated the proceedings.

The Republican witnesses made the case for impeaching Clinton, and the Democratic witnesses defended him.

With one exception, the Republicans voted for the articles of impeachment. The Democrats unanimously voted against them. 

Authority to remove a president from office

Articles I and II of the Constitution provide that Congress has the “sole Power” to impeach and remove the president from office “for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” The members who conduct the proceedings decide what those terms mean.

The House conducts hearings and then votes on whether to impeach the president. This only requires a simple majority.

“Impeachment” just means that the House has approved allegations of wrongdoing that it considers to be impeachable offenses, i.e., the articles of impeachment.

The next stage is a trial in the Senate. Afterwards, the senators vote on whether the charges in the articles of impeachment have been established. If a two-thirds majority finds the president guilty, he is removed from office.

Only two presidents have been impeached, Andrew Johnson and Bill ClintonWilliam (Bill) Jefferson ClintonMost voters say there is too much turnover in Trump administration RNC spokeswoman on 2020 GOP primary cancellations: 'This is not abnormal' Booker dismisses early surveys: 'If you're polling ahead right now, you should worry' MORE, and neither was convicted.

Clinton impeachment proceedings

Attorney General Janet Reno authorized independent counsel Kenneth Starr to investigate an alleged affair between Clinton and Monica Lewinsky.

When Starr completed the investigation, he submitted a report to congress. This resulted in a series of Judiciary Committee hearings which were supposed to determine whether Clinton should be impeached.

The committee approved the following articles of impeachment:

Article 1.  Perjurious, false and misleading testimony to the grand jury regarding the Paula Jones case and his relationship with Monica Lewinsky.

Article 2.  Perjurious, false and misleading testimony in the Jones case in his answers to written questions and in his deposition.  [One Republican voted against this article.]

Article 3.  Obstructed justice in an effort to delay, impede, cover up and conceal the existence of evidence related to the Jones case.

Article 4.  Misused and abused his office by making perjurious, false and misleading statements to Congress. 

The Republican whip was not able to persuade enough Republicans to adhere to the party line to pass all four when the articles went to the floor to be considered by the full House. Two of the articles were rejected.

Article 1 passed on a vote of 228 to 206.  The Republicans cast 223 yea votes and 5 nays.  The Democrats cast 5 yea votes and 200 nays. 

Article 2 failed on a vote of 205 to 229.  The Republicans cast 200 yea votes and 28 nays.  The Democrats cast 5 yea votes and 200 nays.

Article 3 passed on a vote of 221 to 212.  The Republicans cast 216 yea votes and 12 nays.  The Democrats cast 5 yea votes and 199 nays.

Article 4 failed on a vote of 148 to 285.  The Republicans cast 147 yea votes and 81 nays.  The Democrats cast 1 yea votes and 203 nays.

The Senate conducted a trial and then acquitted Clinton.

The votes in the Senate fell far short of the two-thirds majority needed for a conviction.  Although Republicans cast 45 guilty votes on Article 1, ten Republicans voted not guilty. The votes were 50 to 50 on Article 3.

No Democratic Senator voted guilty on either article.

Trump impeachment proceedings

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Trump will be impeached if the Democrats initiate proceedings against him, but it is unlikely that he will be convicted. Eighteen Republican senators would have to vote against him to reach the two-thirds majority needed for a conviction. 

The decision would be final if he is convicted. There is no appeal to the Supreme Court.

The Supreme Court has noted that the Constitution grants “the sole Power” to try impeachments “in the Senate and nowhere else”; and the word “try” “lacks sufficient precision to afford any judicially manageable standard of review of the Senate’s actions.” Therefore, the “Senate alone shall have authority to determine whether an individual should be acquitted or convicted.”

If I were advising Trump, I would encourage him to make sure there aren’t 18 Republican senators who might want to vote him out of office.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.