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Whether the behaviour and violations of Donald Trump rise to the level of impeachable offences remains to be seen. AFP

FROM the day Donald J. Trump was elected president people have discussed when, and how, he would be impeached and removed from office.

Hundreds of articles have been written on the topic, and betting sites offer gamblers odds on the year impeachment will occur. Impeachment looms as the most popular issue surrounding the new Congress, with a House of Representatives now controlled by Democrats, which convened on Jan 3.

Trump’s critics point to numerous violations of laws, protocol and personal behaviour.

These include abuse of power, obstruction of justice and violation of the US Constitution’s emoluments clause, which prohibits use of the office of the presidency to profit from foreign governments.

But is Trump guilty of these things? And if he is, are such things impeachable offences?

The constitutional grounds for impeachment of civil officers include “bribery, treason, or other high crimes and misdemeanours”.

Impeachment is rare — only 19 impeachment proceedings have taken place, resulting in seven acquittals and 12 convictions or resignations from office.

Of the 19 officers, 15 were federal judges, two were presidents, one was a senator and one was a secretary of war.

Among the 12 who lost their positions, 11 were judges. Only two presidents have been impeached: Andrew Johnson, in 1868, and Bill Clinton, in 1998. Neither was convicted.

The impeachment process begins in the House of Representatives, where the judiciary committee considers charges. If even one charge results in a positive vote by committee members, the recommendation to impeach is sent to the full House for debate and a vote by all members.

A simple majority vote on a single count results in impeachment, which is similar to an indictment in a criminal trial.

The impeachment process is not a criminal trial, and the only punishment upon conviction is removal from office.

Following an affirmative impeachment vote the case is delivered to the Senate, which then conducts a trial (for presidential impeachments, the Supreme Court chief justice presides). The Senate establishes its own trial rules, including those involving testimony and evidence. A finding of guilty requires a vote of two-thirds of those senators present.

President Gerald Ford famously remarked that “an impeachable offence is whatever a majority of the House of Representatives says it is”. As cynical as this seems, it is incontrovertibly true.

In 1974, Richard Nixon, facing certain impeachment and conviction, became the only US president to resign.

Since then, pockets of the citizenry have demanded the impeachment of several presidents, and each one involved partisan bickering.

This does not mean, however, that all calls for impeachment are simply partisan, or plausible. Barack Obama’s critics wanted to impeach him for his alleged cover-up of facts involving the attack on US government facilities in Benghazi in 2012, and George W. Bush’s foes insisted that his decision to invade Iraq was an impeachable offence.

Were it true that the standard for impeachable acts included these two instances, there would have been grounds for impeaching many of the nation’s 45 presidents.

A case for impeachment may be difficult to articulate, even when serious offences are lodged, but it is less difficult to spot one that clearly does not qualify, given the constitutional standard envisioned by the Constitution’s framers and the way Congress has treated impeachment calls over the centuries. Unpopular or unwise political decisions, such as military engagements, do not qualify, nor do failed domestic or economic policies.    

One thing to remember is this: a criminal offence may not be an impeachable offence, and an impeachable offence need not be a criminal offence. The term “high crimes and misdemeanours” was used by the authors of the Constitution without much specific guidance, except that they referred to the sorts of offences which demean the office and embarrass the nation.

This is why Ford was essentially correct in his assessment of what is impeachable.

Whether the behaviour and violations of Trump rise to the level of impeachable offences remains to be seen. But recent history instructs us that, absent evidence of heinous behaviour, resulting in something approaching a national consensus, impeachment proceedings are likely to follow a party-line script.

That is, charges will be voted on affirmatively by the Democratic House and rejected following a trial in the Republican Senate.

After Democrat Clinton was impeached by the Republican House he was cleared by the Senate, when only 50 of 55 Republicans, and not a single Democrat, voted to convict.

So even if Senate Republicans had been united in voting to convict Clinton (on a charge of obstructing justice), he would have been spared by 12 votes.

While many knowledgeable journalists, statesmen and political analysts have offered predictions about the outcome of the Trump saga, uncertainty rules. Once special counsel Robert Mueller releases the findings of his investigation and the House conducts its own investigation, the decision about whether to impeach will be left to the House Democrats alone, and their decision is anyone’s guess.

One thing, however, is clear: Based on what we know Trump has done, the case for his impeachment will be easier to make than those targeting Andrew Johnson, who was impeached for violating a constitutionally dubious law when he fired a cabinet official, or Bill Clinton, who was impeached for lying about his relationship with an intern.

William G. Borges, a political scientist, is a Professor in the American Degree Program at HELP University. He can be reached via [email protected]

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