The repeated Republican cries of procedural foul in the House impeachment investigation ignore the Constitution’s impeachment provisions and how they have been applied historically. The fact of the matter is, President TrumpDonald TrumpCheney says a lot of GOP lawmakers have privately encouraged her fight against Trump Republicans criticizing Afghan refugees face risks DeVos says 'principles have been overtaken by personalities' in GOP MORE is being properly put to the impeachment test. The House investigation is not a criminal prosecution; it is a constitutional check on the president given solely to Congress between elections.
If the President is impeached by the House of Representatives and convicted by the Senate, he will not go to jail. The penalty will be removal from office. What’s happening in the House is well within the bounds of the Constitution and historical practice.
Let’s start with the Constitution. Article I, § 2 provides that “[t]he House of Representatives … shall have the sole power of impeachment.” Under Article I, § 3, “The Senate shall have the sole power to try all impeachments.” Importantly, Article I, § 5 says that “[e]ach house may determine the Rules of its Proceedings.” In Walter Nixon v. United States, a 1993 case involving a due process challenge by a federal judge to the procedures adopted by the Senate for his impeachment trial, the Supreme Court declined even to review the procedures, making it clear that the judiciary cannot interfere in the impeachment process.
Thus, the Constitution gives Congress wide discretion in the process it uses to discharge its impeachment duties.
The first president to be impeached and tried was Andrew Johnson. There were three attempts to impeach him. On the third and successful try, the House voted to impeach the president in the form of a resolution drafted by the Reconstruction Committee, a special committee chaired by Radical Republican and Johnson enemy Thaddeus Stevens that had been established to manage the House’s legislation regarding reconstruction after the Civil War. The House referred the matter back to the Reconstruction Committee to draft the articles of impeachment, which were then reviewed, altered and passed by the full House.
The president was not represented in the House and had no involvement in the proceedings there. The trial in the Senate began within two weeks of the House vote on impeachment. The president had an all-star legal team in the Senate trial and they mounted a fulsome defense. Johnson was acquitted by a single vote.
In Richard Nixon’s case, the House impeachment investigation was preceded by public hearings conducted by the Senate Watergate Committee, which included gavel-to-gavel television coverage that captivated millions of viewers. In addition, two special prosecutors, working in secret, had conducted a grand jury investigation of several of the president’s senior White House aides.
The impeachment process began in the House with a resolution authorizing the Judiciary Committee to investigate grounds for impeaching the president. The Judiciary Committee, which gained access to the previously gathered materials, held a series of public hearings in which Nixon’s lawyers were allowed to participate. The committee adopted three articles of impeachment that were never considered by the full House. Instead, President Nixon resigned before the House vote, rather than face certain impeachment in the House and likely conviction in the Senate.
Yet another procedure was applied to President Bill Clinton. After a four-year grand jury investigation, former federal appellate judge and Republican independent counsel Kenneth Starr, acting pursuant to a statute that subsequently lapsed, issued an impeachment report to Congress that was immediately made public. Promptly thereafter, based on a recommendation from the Judiciary Committee, the House passed a resolution authorizing the committee to conduct an impeachment investigation. Other than testifying before the grand jury, President Clinton and his lawyers had no involvement in the Starr investigation. They obtained the information on which impeachment would be based at the same time as Congress and the public.
The Judiciary Committee held two public hearing at which scholars and federal prosecutors testified regarding the proper grounds for impeachment. The committee did not call any witnesses identified in the Starr Report to testify in public, but did invite Starr to testify. They also propounded a set of 81 written questions to the president, to which he responded. The four articles of impeachment advanced by the committee were based largely on the Starr Report. The full House then approved two of the four articles of impeachment.
Unlike Johnson, the Clinton Senate trial included no live testimony. Under the trial rules adopted by the Senate, the cases were presented through oral arguments by counsel for the House “managers” and the president, based largely on the record created by the Starr investigation. Clinton was acquitted on both articles by votes along party lines that fell well short of the two-thirds needed for conviction.
What the Constitution and history tell us is that Congress has wide discretion in adopting procedures for impeachment in the House and trial in the Senate. Evidence to support impeachment has been gathered both in public and under the cloak of secrecy. Although not required by the Constitution, in practice the information on which impeachment is based has been made public at or before the time the vote is taken by the full House.
It is up to the House to decide the level of involvement it wants to afford the president in conducting its investigation. Nixon’s lawyers participated in the Judiciary Committee’s impeachment hearings. In contrast, Johnson had no involvement and Clinton had very little. Both were given the opportunity to defend themselves (acting through a team of lawyers) in the Senate trial.
There is no doubt that the ongoing House impeachment investigation is constitutional. The House of Representatives — not the Senate, not the president, not the courts — decides what procedures it will use. Even before today’s House resolution vote setting out rules for the impeachment process going forward, the investigation authorized by Speaker Nancy PelosiNancy PelosiNorth Dakota Republican latest House breakthrough COVID-19 case Pelosi sets Thursday vote on bipartisan infrastructure bill Cheney says a lot of GOP lawmakers have privately encouraged her fight against Trump MORE (D-Calif.) passed constitutional muster.
It is true that, in previous impeachments, the process began with a resolution by the full House. However, the Constitution does not require that. The taking of testimony in closed hearings — in which both Democrats and Republicans can ask questions and introduce documents — is likewise not precluded by the Constitution or precedent. Indeed, in Clinton’s case, virtually all of the information on which he was impeached was gathered in secret, without any involvement by the president or his lawyers.
With a resolution on the books, the investigation of President Trump will have been affirmed by the full House and provisions will be made for public hearings and committee reports before any impeachment vote, as well as potential participation by the president’s lawyers. This is more than Presidents Johnson and Clinton got in the House, and similar to the Nixon procedure.
Finally, if President Trump is impeached, he will get his day in court in the Senate under rules that likely will be fashioned by the Republican majority. You can bet that Republican senators will make sure the president gets a full and fair opportunity to present a defense, under rules of the Republicans’ making.
Scott S. Barker is senior counsel at Wheeler Trigg O’Donnell LLP in Denver, Colo., a veteran with service as a military intelligence officer, and a fellow of the American College of Trial Lawyers. He has authored two books on impeachment: “Impeachment A Political Sword” (2018) and “The Impeachment Quagmire: Military Intelligence Officer Turned Attorney Unravels Mueller Report” (2019).