Heated trials shaped impeachment history
Impeachment isn't a pretty business. America's Founding Fathers knew that it could deeply divide the new country, but was an essential protection against corruption and abuse of office. For parents and teachers trying to help kids make sense of it all, there are helpful lessons to be gleaned from past impeachment trials.
For much of history, the way to get rid of unwanted leaders was just to assassinate them. Rome's Praetorian Guard dispatched many of its emperors that way, both the best and the worst of them.
The idea of impeachment as a legal way to get rid of unfit public officials was pioneered in medieval England and used extensively during the political upheavals of the 17th century.
As the framers of the Constitution were meeting in Philadelphia in 1787, proceedings for one of the most dramatic impeachment cases in British history were starting in London. Warren Hastings, a top colonial official in India, was charged with extortion and bribery. His trial would last seven years and end in acquittal, but it made a deep impression on American lawmakers, who cited the case when they added the phrase "high crimes and misdemeanors" to the impeachment clause of the Constitution.
"They used the Hastings case to show the need to include more than treason as a basis for impeachment," says Buckner Melton, a constitutional historian at the University of North Carolina Law School in Chapel Hill.
But subsequent lawmakers found that it is easier to define treason than to say exactly what conduct amounts to a high crime or misdemeanor.
"Nothing can be more alarming than the vagueness with which political offenses ... are described in the laws of America," wrote Alexis de Tocqueville, one of the great commentators on American democracy. Impeachment is "the most formidable weapon that has ever been placed in the grasp of a majority," he added.
The two great impeachment trials in American history - that of Supreme Court Justice Samuel Chase in 1804 and President Andrew Johnson in 1868 - signaled the danger that impeachment could be misused.
Both men made no secret of their opposition to the policies of strong majorities in the Congress. Chase, a Federalist, used to rail against acts of the Republican Congress from the bench; and Johnson, a Democrat, vetoed one Republican Reconstruction measure after another after the Civil War. They were both impeached on strong party-line votes in the House of Representatives, but were unexpectedly acquitted in the Senate.
At issue in both trials was whether the Senate would become "a partisan tribunal, which would be willing to undermine the fundamental principles of the Constitution in order to remove a political enemy from office," writes William Rehnquist in his 1992 book, "Grand Inquests." As chief justice of the United States, Mr. Rehnquist will preside over the impeachment trial of President Clinton if there is one.
Had Chase and Johnson been convicted, the verdicts would have set a precedent that officials can be impeached just because Congress disagrees with their political views.
"These two cases ... surely contributed as much to the maintenance of our tripartite federal system of government as any case decided by any court," Rehnquist concludes.
Impeachment is not meant to be easy. The Republican senators who broke party ranks to vote to acquit Johnson made it clear that not every misdeed was a basis for impeachment.
Sen. James Dixon (R) of Connecticut wrote that he voted for acquittal because he did not want to see impeachment become an ordinary means of changing the policy of the government.
President Richard Nixon's resignation on Aug. 8, 1974, preempted an impeachment vote by the full House on charges of obstruction of justice and abuse of power. But the trial that never was has thrown a long shadow in American politics. Today's House Republicans referred often to the Nixon proceedings in framing their own investigation of Mr. Clinton.
Only 15 impeachments have reached the Senate in more than 200 years, with seven convictions. The rules today are about what they were when senators quickly drafted them for Johnson's trial in 1868. They don't cover all contingencies and all can be changed by a two-thirds vote.
If precedent is any guide, here's what you might expect from a Senate impeachment trial:
What are the rules for a Senate trial?
The rules are what senators say they are. The Constitution says that the Senate has authority for determining what an impeachment trial looks like, including whether to dispense with witnesses. Senators could also end an impeachment trial at any time by a majority vote to adjourn.
Can the Senate overrule the vote of the House of Representatives?
When the House voted in favor of two articles of impeachment on Dec. 19, Clinton became the second US president to be impeached. The Senate cannot change that fact. What it can decide is whether he will be removed from office and possibly banned from holding public office in the future. (The only other impeached president, Andrew Johnson, returned to the Senate six years after leaving the White House.)
How is a Senate impeachment trial different from a trial in a court of law?
The current rules allow both sides to make opening and closing statements, question witnesses, and raise objections, just as in a criminal trial. Instead of a jury, there are 100 senators who can convict or acquit the president on a two-thirds vote. The presiding officer, the chief justice of the United States, rules on motions and questions of evidence, just like a trial judge, but his decisions could be overturned by a majority vote of the Senate, as happened frequently during the Johnson trial. Senators can ask witnesses their own questions, if they submit them through the chief justice.
Does the president have to show up?
The rules say that the person impeached can send another to represent him. Johnson chose not to appear before the Senate to answer the impeachment charges against him. His attorneys argued his case.
Will the trial be televised?
Current rules say that "the doors of the Senate shall be kept open" during the trial of an impeachment, unless the Senate directs the doors to be closed "while deliberating upon its decisions." This rule has been taken to include television. (The Senate first allowed television cameras to be installed in its chamber in 1974, to cover the expected Nixon impeachment trial.)
How long will the trial last?
Johnson's trial lasted nearly 2-1/2 months, from the first House presentation to the Senate on March 4, 1868, to a May 16 vote to acquit, during which time the Senate did nothing else. Some Senate leaders are proposing a much quicker timetable that would give senators a chance to hear from both sides and then vote on whether a full-scale trial is needed. The issue is expected to be taken up soon after the 106th Congress is sworn in on Jan. 6.
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