Lessons on the Law and Politics of US Impeachments
In this guest post, LLM in International Law student and GJA Ambassador, Felix Mayr, reflects on a recent Edinburgh Centre for International and Global Law event on the military occupation of the Palestinian Territories and other occupied lands.
On 15 January 2020, the Edinburgh Centre for Constitutional Law and the Edinburgh Centre for Private Law hosted Saamir Nizam’s presentation of ‘The Law and History of Impeachment under the US Constitution’. Now practicing law in Scotland, Nizam worked as a lawyer, legislative assistant and investigator for the US congress in the 1990s including during the Clinton impeachment process. He further participated in several national and international investigative efforts including, inter alia, the International Criminal Tribunal for the Former Yugoslavia. In an in-depth presentation, he managed to not only explain the relevant US law to those who are not familiar with it but further invited the audience to think about the greater political process involved.
Mr Nizam began by outlining the two main functions of the US Constitution, the first being the constitution of the government and the second being the restriction of its power. He then illuminated the methodology of how to analyse these provisions to give them their proper legal
meaning. Looking at the history of the Constitution, he noted that in 1787 James Wilson articulated the meaning and the process of impeachment in 1787 with the idea that no president would become a monarch such as in England. In other words, the president must be strong enough to fulfil the position as commander and chief but not so powerful as to be able to set aside the legislature and the Supreme Court. The four impeachment cases across US history each revealed different lessons that could be instructive for the future.
(I) In the 1868 case of Andrew Johnson, who tried to dismiss Secretary of War Edwin Stanton after Congress limited his ability to fire Cabinet officials, the Senate voted him guilty with a majority of 35 to 19.. Despite the majority finding of guilt, the constitutional threshold for an impeachment conviction is two-thirds so Johnson remained in office. Thus, even with an overwhelming majority opposed to a President, conviction and removal from office can fail by just one vote. This account demonstrates that while the process of impeachment is legal, it can and must also be viewed as a political process. However, aside from the relevant articles found in the constitution, at that time, there were no detailed laws or regulations relating to impeachment.
(II) The near-impeachment of President Richard Nixon following the Watergate scandal proved, again, the power of the spectre of impeachment. Not only did it lead to his resignation on 9 August 1974, it also demonstrated that even a popularly elected president can lose his political support and be subjected to impeachment when crimes are committed. In this regard, the Special Prosecutor and especially the Supreme Court were pivotal players in the effort against President Nixon. However, the process demonstrated that the process had become too political. A need for a law dealing with the investigation and prosecution leading to impeachment was needed. This led the Office of Legal Counsel, Department of Justice, to adopt guidance on the Legal Aspects of Impeachment: An Overview in 1974.
(III) With the impeachment of William (Bill) Clinton in 1998 in the aftermath of his affair with Monica Lewinsky, Kenneth Starr was authorised to investigate in the matter. However, Starr’s performance revealed that the Independent Counsel, who serves as a prosecutor, was too powerful and open to abuse. Though Clinton was not convicted, once again, the process was shown to have become too political – more detailed rules and additional controls on the Independent Counsel’s investigative and prosecutorial powers were needed. This led to the Office of Special Counsel replacing the Office of Independent Counsel in 1999, defined by regulation 28 CFR 600.
(IV) In the most recent case, Donald Trump was conveyed for impeachment by the House of Representatives in December 2019 after a whistle-blower revealed information regarding a call with Ukrainian President Zelensky. In the call, Trump coerced the Ukraine to provide damaging stories about Democratic candidate Joe Biden and his son. The Ukraine’s failure to cooperate would have resulted in Trump reneging on a $400 million (USD) military aid package to the country. With the Speaker of the House Nancy Pelosi naming the impeachment managers to conduct the prosecution on the exact day of the event, Nizam illustrated the subsequent process which is currently proceeding in the Senate. A vote in the Senate will ultimately decide on whether President Trump will be acquitted or convicted and removed from office.
History shows that the law of impeachment can be very powerful, as in the Clinton era, or rather weak, as in the case of Johnson. However, the outcome of such a proceeding always remains uncertain. The process of impeachment in American law is ‘a political body wearing legal clothes’ – ultimately, politics will decide the outcome. The power to remove a democratically elected president should not be underestimated – not least with regard to the possible consequences an impeachment might have on the voting public. Overall, Mr Nizam offered a captivating and engaging presentation covering over 200 years of legal history, moving effortlessly between the theory behind the process and its use in practice. Ending the evening with an optimistic outlook, he concluded that it is in challenging times such as the present when the US Constitution can demonstrate its real value and legal power. Looking at the US Constitution as an ‘evolving’ document, the Trump impeachment experience will also have its lessons for future generations.