Constitutional Scholar Explains How Impeachment Works in a Hyper-Partisan Era

Saikrishna Prakash is an expert in the separation of powers with a focus on executive powers. He teaches constitutional law, foreign relations law and presidential powers at the University of Virginia’s School of Law.

The James Monroe Distinguished Professor of Law and Paul G. Mahoney Research Professor of Law is a highly respected author and scholar. He has published several opinion pieces in the New York Times, The Wall Street Journal and the Los Angeles Times, and has testified before Congress on matters of executive power and the separation of powers.

In April, Harvard University Press will release his latest book, “The Living Presidency: An Originalist Argument Against its Ever-Expanding Powers.”

On Monday afternoon, Speaker of the House Nancy Pelosi endorsed an impeachment inquiry into President Donald Trump over a phone call he had with his Ukrainian counterpart. With an investigation now in full swing, UVA Today reached out to Prakash for his expert constitutional knowledge on the history of impeachment and how the evolution of party ideology is influencing the proceedings.

Q. Can you describe the process of impeachment?

A. Impeachment comes from Great Britain. It was a way for Parliament to basically conduct criminal trials of the king’s officers.

In England, the House of Commons impeached and then the House of Lords conducted a trial to decide whether the person was guilty. That process was actually a criminal process, and people could go to jail or be executed and what have you. [The British] brought this process over to America because, of course, they were ruling the colonies.

“In our country, no one goes to jail as a result of an impeachment conviction. The most that the Senate can do is remove someone from office and bar them from holding future offices. ”

Under the U.S. Constitution, the House takes the role of the House of Commons and the Senate takes the role of the House of Lords. It’s a two-step process where the House decides whether to impeach based on whether there’s treason, bribery or other high crimes and misdemeanors. And then if they impeach, the Senate then can conduct an impeachment trial and decide whether a high crime and misdemeanor occurred. And if it’s the president who’s being tried, the chief justice [of the U.S. Supreme Court] presides over the trial, because they didn’t want the vice president to preside over the trial of the president, when the vice president would benefit from the president’s impeachment.

In our country, no one goes to jail as a result of an impeachment conviction. The most that the Senate can do is remove someone from office and bar them from holding future offices.

Q. Is it really that cut and dried?

A. I’ve described what is in the Constitution and what predated the Constitution. The current proceedings are not going to be cut and dried, because there are questions about whether the House has to impeach if they think someone has committed a high crimes and misdemeanors. There are some people who say, ‘Yes, if the House believes someone committed a high crime and misdemeanor, the House has to impeach, and senators have to vote to convict if they feel like the president or anyone else who’s subject to impeachment committed a high crimes and misdemeanors.”

There’s of course the very difficult question of what constitutes high crimes and misdemeanors. What constitutes treason? What constitutes bribery?

So there’s going to be all kinds of knotty issues, and then the process within each chamber. The Constitution just says that the House impeaches and the Senate conducts a trial. But the House and the Senate have used committees for a long time to basically gather evidence and hear evidence and hear testimony.

Those committees are largely doing the work. In the recent past, senators haven’t sat around and listened to all the evidence themselves. They more typically receive a report from, say, the Senate Judiciary Committee, which lays out why the writers of that report think that a high crime and misdemeanor has occurred.

“There’s of course the very difficult question of what constitutes high crimes and misdemeanors. What constitutes treason? What constitutes bribery?”

It’s not cut and dried at all. There’re these questions about process, but there’s also, importantly, questions about substance. “Did the president commit a high crime and misdemeanor?” That’s where most of the argument will be. If he did it, do they have to actually proceed? What role does prior practice play in all of this, if other presidents have done something similar? Does that mean that he should not be impeached? Is it irrelevant what other presidents have done? Is the president held to a higher standard or a lower standard or the same standard?

The opponents of the president will say the president has to hew to a higher standard because he takes an oath to the Constitution, so what we might excuse in lower levels we can’t excuse in the president. The president’s defense will say it should be more difficult to impeach a president than, say, a secretary of state or the deputy secretary of the Treasury. So, if we shouldn’t lightly impeach a president, it should take more egregious conduct for it to be a high crime and misdemeanor. You’re going to hear all these arguments. It’s not cut and dried at all.

Q. What is the legal standard for high crimes and misdemeanors?

A. In England, that was the language you used when people were impeached. If you looked at English practice, it’s a fairly broad category. It doesn’t need to be a crime, and we know this because people were impeached for the advice they gave to the Crown. If you gave wicked advice to the Crown, meaning you told him to do something he ought not to have done and he did it, then you could be convicted of high crimes and misdemeanors.

A lot of people think it’s a reference to crimes because the word ‘crimes’ is there. I don’t think that’s what the phrase was taken to mean. I think that what a lot of people agree is that if the president abuses his office in some way, that’s a high crime and misdemeanor, whether or not there was a crime.

“A lot of people think it’s a reference to crimes because the word ‘crimes’ is there. I don’t think that’s what the phrase was taken to mean.”

There are going to be disputes about what it means to abuse the office of the president. Although there are going to be some people who say there was no crime here, I don’t know if what they really mean to be saying is if there’s no crime here, there’s nothing to impeach. I don’t think that’s a respectable reading of the Constitution.

People typically approach this question tainted by their views of the president. If you don’t like the president, you’re more inclined to say he committed a high crime and misdemeanor. If you were a fan of the president, you’re more apt to say he didn’t.

Q. At issue is whether the office of the president was used to curry political favor. You’ve studied the Constitution and the power of the office of the president. What are your thoughts on this?

A. I think there are lots of things that presidents do that are impeachable, in the sense that they have misused their authority. Trump’s not the first. He won’t be the last.

The question I think isn’t so much whether this is impeachable; it’s more whether he should be removed from office. What do you mean by that? If you have the view that I do, which is that there are lots of things that presidents do that are impeachable, I think the question then becomes, “When do you invest the time and resources necessary to actually commence and go through with the process of impeaching him?”

The problem good government types will have with the situation is it’s patently obvious that the Democrats have been trying to impeach Trump for years. It may happen if they actually have a better case now than they had in the past, but this will be viewed through a partisan lens on both sides.

“I think there are lots of things that presidents do that are impeachable, in the sense that they have misused their authority. Trump’s not the first. He won’t be the last.”

The way I think about this is, if this had been a Democratic president, Republicans would be outraged by this, and rightly so. But I also know that Democrats would defend him or her for the same reasons Republicans are defending him or her right now.

I think you can say that the president committed an impeachable offense. I think it’s a misuse of his authority to do what he did. But I don’t think they’re going to succeed because the messengers don’t have any credibility. That is to say, the people in charge of the process appear to have it in for the president, in much the same way that Republicans would have appeared to have it in for President Clinton during his impeachment in 1998 for lying under oath and obstruction of justice.

In that context, it immediately descends into an “us-versus-them” situation. It becomes very hard for Republicans to say, “I think he committed an impeachable offense, but removal is not the answer,” or even to criticize the president, because you’re basically allowing the other side to have it both ways, depending upon who was president.

You’re playing an asymmetric game, where one side is playing by one set of rules and the other side is playing by another set of rules, and both parties face this predicament.

Q. Can you put presidential impeachments into historical context and talk about how party evolution plays a role in impeachment?

A. I think if we go back to Nixon, I’d say that in the Nixon era the parties were more ideologically incoherent. That is to say, each party had less coherence ideologically, meaning that the Democrats had moderates and liberals and conservatives and the Republicans had moderates, liberals and conservatives. Obviously, the Republicans were more conservative on average than the Democrats, but they were conservative Democrats in the Senate and there were liberal Republicans in the Senate and the House.

“The parties are even more homogenous now than 25 years ago, I think.”

And in that era, it’s easier for people to cross party lines because there is no ideological purity test and there’s no sort of assumption that you’re going to support the president, no matter what. So it was possible for Republicans to go to Nixon and tell him, “You need to resign. You’re going to get impeached and convicted. That’s terrible for the country. It’s obviously not good for you. You should just resign.” And I think my recollection is Republicans did that towards the end of the Nixon presidency and that was a signal to him that if he didn’t leave, there was a very good chance he would be escorted out.

When you get to the Clinton era, the parties are more ideological, meaning they’re more coherent around one end of the ideological spectrum. And so, there are fewer moderate Republicans or conservative or moderate Democrats. The people going after Clinton were perceived as Republican ideologues, and that played into the hands of the Clintons because they could paint their opponents as Republican hacks who just wanted to end their presidency and overturn an election – a coup, an impeachment coup.

And that’s very much what we have today, except it's sort of even worse. The parties are even more homogenous now than 25 years ago, I think.

Q. Politics are clearly at play. What do you suppose would happen if there was an impeachment vote in the House?

A. Members of the House are partly gauging what their party base thinks and, rightly or wrongly, they are probably thinking of their reelection when they are voting on these measures.

“Any Democrat in a swing district, whether they’re moderate personally, has to be concerned that if they don’t vote to impeach the president, they’ll face a tough political challenge.”

They’re not just thinking about Constitutional duty; they’re thinking about “How does this affect me? Am I going to face a primary challenge?”

Any Democrat in a swing district, whether they’re moderate personally, has to be concerned that if they don’t vote to impeach the president, they’ll face a tough political challenge.

Q. Your new book, “The Living Presidency: An Originalist Argument Against its Ever-Expanding Powers,” comes out in April. You sound the alarm over the presidency’s ever-expanding powers. Can you tell us about it and how it addresses impeachment proceedings?

A. The book is about the remarkable expansion of the presidency and why and how presidents get away with it. The connecting thread, I think, ultimately is partisanship.

Partisanship explains why it’s very difficult to remove a president, but it also explains why it’s very difficult to oppose the usurpations by a president; that is to say, presidents can get away with stuff because they face a divided opposition. They face a two-chamber Congress.

One way of putting it is presidents can get away with more stuff when you have a highly partisan atmosphere because they can expect their co-partisans to protect them. That’s true with respect to possible impeachable offenses, but it’s also true with respect to the underlying exercise of presidential power.

So if a president starts a war, he will succeed in large measure because he has co-partisans who will reflexively support him and he’ll avoid being impeached and removed. (The Constitution states that only Congress has the power to declare war.)

“The Republicans are now going to comb through history to find other situations where presidents ask something from foreign leaders that would have been useful to their own re-election.”

And then, as these episodes multiply, people then start saying, “Well, presidents can start wars. Look at all these people who have done it.” And that’s going to happen here, too.

The Republicans are going to spend a lot of time trying to dig up examples where presidents have basically asked foreigners to help them in some way with respect to the election, which is what Trump has been alleged to have done with the Ukrainian president.

For example, “Did president ‘A’ ask leader ‘B’ to say something that sounds like an endorsement which will help me in the elections?”

The Republicans are now going to comb through history to find other situations where presidents ask something from foreign leaders that would have been useful to their own re-election. I wouldn’t be surprised if something like this has happened before. The Republicans are already citing a conversation between Obama and (former Russian President) Dmitry Medvedev. Obama was running for re-election and he was caught on a hot mic saying something like, “Tell Vladimir (Putin) that I need space. I can make a deal with you after the election.”

What Republicans are going to say now is, “Obama was basically saying, ‘If you don’t do anything that makes my election more difficult, I’ll be more flexible with you afterward.’”

Did he mean any of that? No. But could you read it that way? Yes. And guess what? Republicans are more apt to read it that way than Democrats are. And Republicans are less apt to read Trump as doing something wrong than Democrats are.

So Republicans will be searching for these examples high and low, and presidents are politicians, so there’s probably not going to be a dearth of modern examples.