An Impeachment Primer

There’s a lot of confusion about how impeachment works.

Here’s a primer.

There are four parts to an impeachment:
1) investigations
2) House Judiciary hearings
3) House vote
4) Senate trial

We’re in Phase 1, and we’ve been there since Feb or March, when the House began to investigate Trump. With Nixon, this phase lasted 17 months, from Feb of 1973 to June of 1974. For Bill Clinton, this phase ran from Jan 1994 to October of 1998, some 58 months.

This is where most of the data and evidence, testimony and documents are collected that will determine whether Congress thinks the president has committed serious wrongdoing.

Impeachment cannot happen until investigations are complete.

Impeachment cannot even be considered until investigations have reached an advanced state.

In a criminal case, this is where the police gather evidence of a crime, who did it, where, when, and how. Nothing can happen until the cops are sure they know what happened.

Phase 2, House Judiciary hearings, is the equivalent of a prosecutor deciding whether the evidence gathered by the police is enough to go forward with an indictment. (It can also be seen as a prosecutor presenting a case before a Grand Jury.) No prosecutor in any criminal case will proceed if he or she is convinced there won’t be a conviction.

That’s different from being unsure of a conviction. No verdict is guaranteed. But if a prosecutor knows the evidence is insufficient, or the jury is tainted, no prosecutor — ever — will proceed with an indictment.

For Clinton, Phase 2 was rather rushed. The House authorized the Judiciary Committee to begin an “impeachment investigation” against Clinton in October of 1998. It ran until until December of 1998. This was timed to impact the 1998 midterm elections.

Republicans campaigned in 1998 on the promise of drawing up Articles of Impeachment and using them to prosecute Clinton. The ploy backfired. Republicans lost seats in the House, and didn’t gain any in the Senate. Nevertheless, Republicans went forward, and produced Articles of Impeachment which Judiciary passed and sent to the full House in late December.

For the Nixon impeachment — which, unlike Clinton’s case, wasn’t a partisan hit job — House Judiciary began considering evidence in Feb of 1974.

So House Judiciary didn’t even begin to consider the evidence until the Watergate investigations had been going for a full year. Judiciary completed their work in July of 1974, six months later, and a month after the Congressional Watergate investigations ended.

This is the difference between an obvious partisan stunt and a real and thorough investigation:

• Republicans spent more than four and a half years looking for something to pin on Clinton, then rushed through the decision to prosecute in less than two months.
• With Nixon, Democrats had a good idea of what the crime was when they started. They spent 17 months methodically gathering evidence for the case, and they still worked for six months carefully considering that evidence before they decided to impeach.

Impeachment is Phase 3, a vote by the full House on whether to send Articles of Impeachment to the Senate. Phase 2 — the hearings in House Judiciary — are called “impeachment hearings” and even sometimes “impeachment investigations” —but the Judiciary hearings are preliminary matters that happen before the actual impeachment vote. They are not “impeachment”, but they do have to be completed before impeachment can happen.

Only Phase 3 — the vote by the full House — that is the only part that’s “impeachment”.

Neither the investigations of Phase 1, nor the deliberations by House Judiciary in Phase 2, are “impeachment”. The act of “impeachment” is nothing more nor less than the up-or-down vote by the full House whether to approve Articles of Impeachment and send them to the Senate.

You cannot impeach without sending it to the Senate. That’s what Impeachment is — the decision whether or not to have a Senate trial. If you decide not to, it’s a “failed impeachment”. The final phase — the trial in the Senate — is also not “impeachment”. It’s a trial. It operates by its own rules, and it is nothing like any other form of trial in America.

I’ll do another article later on what Phase 2 — the Judiciary deliberations — and Phase 4 — a Senate trial — would look like today.