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Democrats on the House Judiciary
Committee have now decided
on the language of two
articles of impeachment
against President Trump.
Is the president's conduct
really impeachable?
Is this a political charade?
And are Democrats stepping out of line
by drafting these two particular
articles of impeachment?
well, to figure that out, we have to look
at the only three other
times this has ever happened.
Let's compare president
Trump's articles of impeachment
to presidents Johnson, Nixon and Clinton.
(orchestral music)
Hey Legal Eagles, it's
time to think like a lawyer
because we are living in
very interesting times.
Today, we're gonna talk
about how impeachment works
and how and when you're
allowed to throw a president
out of office.
Why are we talking about
impeachment right now?
No reason, just seemed
like a fun thing to do.
So let's start at the beginning,
where does impeachment come from?
Impeachment is a process
that lets Congress
remove federal office
holders from their position
when they do something wrong.
Where does this idea come from?
Well, like most of the
things that relate to the law
of our country, it comes from England.
Impeachment was a process
the Parliament used
to limit the power of kings and queens.
Since they couldn't
impeach the royal family,
English Parliament would impeach the king
or queen's ministers and favors.
Basically, anyone connected
to the crown who had amassed
too much power and used
it in inappropriate ways.
If someone abused their
power, neglected their duties,
mis-used funds, encroached
on Parliament's power
or betrayed the nation's
trust, they could be impeached
which often meant they
were thrown in jail.
Parliament referred to these issues
as high crimes and misdemeanors.
You'll probably recognize that phrase
in the US Constitution.
high crimes and misdemeanors
in English law referred
to offenses against the country itself
and not necessarily
criminal offenses per se.
So fast-forward to the American colonies.
The American colonists
were not entirely happy
with the way that King
George treated them.
So they started effectively
impeaching colonial officials
who reported to the crown
in the American colonies.
This was a risky play
since colonial governments
technically didn't have
the legal right to impeach anyone.
Since the colonists didn't have the power
to subject officials to
criminal penalties like prison,
the penalty for impeachment
in the colonies was
for the office holder to
be removed from office.
When the English crown
warned the American colonists
to stop the impeachment proceedings,
eventually that was one
of the factors that led
to the breakup with the
English monarchy entirely.
That's why the Declaration of Independence
is part breakup letter, part burn book
and part impeachment notice.
The declaration lists
grievances against King George
and insists that Americans
have the right to fire him.
After the Revolutionary War,
eight of the original 13
colonies added impeachment power
to their state constitutions.
When the Constitution was ratified,
it included this important tool found
in article two, section four.
The president, vice-president
and all civil officers
of the United States shall
be removed from office
on impeachment for and
conviction of treason,
bribery or other high
crimes and misdemeanors.
So how does impeachment work?
Article one gives the
House of Representatives
the power of impeachment
and the Senate the power
to hold an impeachment trial.
The House of Representatives
acts as the prosecutor
bringing formal charges
against the federal officer
or the president while the Senate
holds the actual trial
itself for impeachment
and removal of office.
For a person to be convicted
and removed from office,
two-thirds of the Senate
must vote to convict.
Removal from office is the only penalty
which can result from impeachment.
This brings us to the most
important question of all.
What actions can get a
federal officer impeached?
Technically, the answer
is found right there
in article two section four,
a person can be impeached
for treason, bribery or other
high crimes and misdemeanors.
The problem is that language
doesn't really give us
the guidance that we need to figure out
what specific actions are required
to remove someone from office,
but the first two criteria are easy calls.
If a public official
commits treason or bribery,
he or she is obviously acting
on behalf of another country
or for the direct interest of themselves
over the interests of the country
which makes impeachment
a relatively easy call.
It's generally the other
requirement for high crimes
and misdemeanors that
causes all of the vexation.
So what is a high crime or misdemeanor?
The term isn't defined in our
law or in the Constitution
so we have to define it first
by stating what it is not.
The founding fathers were
concerned about offenses committed
against the country itself by people
in high places of authority.
Therefore, the term high crime
probably mean necessarily
a high felony like a murder or kidnapping,
instead the phrase probably
implies a crime by a person
in the government in a
high place of authority,
just like it did in England
against the people who are surrogates
for the crown of England.
We also know that high
crime can't mean a very,
very bad felony or crime
because it's paired
with a misdemeanor.
The Constitution also
says a public official
can be impeached for a quote, misdemeanor.
The American criminal law, a misdemeanor
is a crime punishable by
less than one year in jail.
Misdemeanors are crimes like petty theft,
possession of marijuana,
disorderly conduct
and public intoxication.
You know, all the fun things.
If we use the standard legal
definition of misdemeanor
in criminal law, then that
would expose federal officials
to removal for really basic infractions,
but is that really what the
founding fathers were after?
Probably not, contemporary writings show
that the founders probably
understood misdemeanor
as a way to punish, quote
malversation in office.
Malversation is an almost obsolete word,
but it basically means
corrupt behavior by a person
in a position of public trust.
Now I can almost feel your
frustration right now.
If there isn't a list of
high crimes and misdemeanors
to go off of, where do we turn to next?
Well, the best resource
we have is precedent
and we can examine
how impeachment has been used in the past.
So let's talk about first,
non presidential impeachment.
impeachment has only been used 17 times
against officials of
lower rank than president.
No one has been impeached for treason,
but three people have been
impeached for bribery,
including two judges and a cabinet member.
The rest were considered high crimes.
These cases fall into three categories.
The first one is for
people who abuse the office
for improper purpose.
This usually means things like
taking bribes or kickbacks.
The second category involves things
like exceeding the constitutional balance
of the powers of office.
Most people who were
impeached for abuse of power
have been federal judges.
They're problematic actions
include things like showing bias
towards certain litigants,
abusing the contempt of court
powers and imprisoning lawyers
who were critical of the judges.
The third category is reserved for conduct
grossly incompatible
with a proper function
and purpose of the office.
This includes incompetence
or moral failings
that may not be a, but
which sully the office.
For example, a few judges were
impeached for being drunks
who ranted and raved from the bench.
I've certainly never been
in front of any judges
who acted like that at
all and all of the judges
that I've been in front of,
especially the ones
that voted for my client
were upstanding citizens.
Now moral failings have
also been considered impeachment worthy
including groping subordinate employees.
This was also done by an
out-of-control federal judge.
These examples don't exactly
set an extremely high bar
for impeachment from a
behavioral standpoint.
Still, there have been fewer impeachments
than one would probably assume over time.
That's mostly because
the decision to impeach
in an office holder is a serious one
and political considerations
also play a role.
This is especially the case
when Congress is debating
whether to impeach a sitting president.
So let's talk about the
elephant in the room.
What is the presidential
standard for impeachment?
Well, when Bill Clinton was subject
to an impeachment inquiry,
his lawyers argued
that the standards should
be much higher for removal
of the most powerful person in government.
Although there may be some
logic to this argument,
you can also argue that the
president should be held
to a higher standard of conduct
because that person is
the most powerful person
in the American government.
To see how various
Congress's have interpreted
the legal standard for impeachment,
let's take a look at the
attempted impeachment
of three US presidents.
Andrew Johnson, Richard
Nixon and Bill Clinton.
We'll start with Andrew Johnson.
The first president to face
impeachment was Andrew Johnson
who became president after
Lincoln's assassination.
The Republicans in Congress
at the time strongly disagreed
with President Johnson's attempt
to stop newly freed former
slaves from getting equal rights.
Congress even drew up articles
impeachment stating this.
However, they got nowhere
with this particular argument
and not enough
representatives would impeach
on those grounds and during
the ensuing power struggle,
Congress passed the tenure
of office act to try
to ensnare Johnson in a trap.
The law stripped the president's right
to fire executive branch officials
without the Senate's consent.
The law stipulated that if
Johnson violated the Act,
it constituted a high misdemeanor
which Congress would consider
an impeachable offense.
President Johnson eventually
fired the Secretary of War,
triggering the tenure of office act.
The House drew up articles of impeachment
and voted overwhelmingly
to on those grounds.
Interestingly, since people have focused
on the process associated
with president Trump's impeachment,
here it took only five days for Congress
to pass the tenure of office
act and then file articles
of impeachment against President Johnson.
The house brought eleven articles
of impeachment against Johnson.
These are perhaps the broadest
articles of impeachment
against any president in history
and given the craven political nature
of these particular
articles of impeachment,
probably the most controversial as well.
The Johnson articles
of impeachment included
dismissing Edward Stanton from office
after the Senate had voted not to concur
with his dismissal and
had ordered him reinstated
and conspiring to prevent
him from continuing,
appointing Lorenzo Thomas as
Secretary of War at interim
despite the lack of vacancy in the office
since the dismissal of Stanton
had been allegedly invalid
and without the advice
and consent of the Senate,
conspiring to unlawfully violate
and curtail faithful execution
of a tenure of office act
and take possession of the property
of the department of war, issuing orders
to violate federal law
requiring all military orders
to be issued through
the general of the army.
Making three speeches
with intent to quote,
attempt to bring into
disgrace, ridicule, hatred,
contempt and reproach the
Congress of the United States
and finally, bringing
disgrace and ridicule
to the presidency by his
aforementioned words and actions,
but the story wasn't over.
The Senate still needed to convict.
35 senators voted guilty
and 19 voted not guilty,
thus falling short by one single vote
of the two-thirds majority required
for conviction under the Constitution.
Now while this is a gross over summary,
Johnson had a legitimate gripe.
The law passed by Congress
limiting his powers
was unconstitutional.
The Supreme Court ruled it
was unconstitutional in 1926,
but the Republican members of the House
also had a legitimate gripe.
President Johnson turned his back
on Lincoln's reconstruction plan
because he had an antipathy
toward African-Americans.
So what can we deduce from
this particular incident?
Well, it's a mixed bag.
Johnson and Congress were
having a political dispute
about the future of the nation.
A dispute that would dramatically impact
both ex-confederates
and newly freed slaves.
Well, you'll notice that
Johnson's impeachment wasn't
about breaking a criminal law.
It's important to remember
that breaking a criminal law
could be grounds impeachment,
but the president doesn't need
to commit a crime in
order to face impeachment
and its (mumbles) the Johnson impeachment
was a political issue.
Both sides really had failed
in their oath of office.
Both the president was
refusing to execute the laws
and Congress was passing
unconstitutional laws
to ensnare the president and ultimately,
Johnson fell only one vote
short of the vote needed
to remove him from office which brings us
to the near impeachment of
President Richard Nixon.
So let's review the basics
of the Watergate scandal
that led to Richard Nixon's resignation.
Now, this is really just
going to be the basics.
This is an incredibly complicated
part of American history
that I'm not gonna do justice,
but perhaps in a later video,
I'll cover it in more detail.
During the summer of 1971,
President Nixon enbroiled
in the increasingly unpopular Vietnam War.
Daniel Ellsberg, a Department
of Defense military analyst
started leaking government
secrets about the war
to various newspapers.
The biggest leak was a top-secret report
now known as the Pentagon Papers
which was a confidential history
of what America had been doing in Vietnam.
President Nixon established
a team of special operatives
to plug the leaks and engage
in a number of illegal,
but pro Nixon shenanigans.
The group gave themselves
the nickname, The Plumbers.
The Plumbers engaged in all
kinds of illicit activities
including breaking into
Ellsberg psychiatrist office
to steal medical records
and supporting a Democratic candidate
who Nixon felt he could easily defeat.
Nixon's team also planted
bugs in the offices
of the Democratic National
Committee which were located
in the Watergate office complex.
They later broke into
the offices a second time
to fix those recording devices.
The FBI eventually caught
the Watergate burglars
and Congress launched an investigation.
Eventually over a
multi-year investigation,
the story came out.
President Nixon made secret audio tapes
of conversations in the White House.
He knew about the plumbers,
he knew about the Watergate burglars
and he ordered his subordinates
to help cover up those activities.
Now, although the malfeasance
goes back to at least 1971,
a congressional Select
Committee wasn't formed
until February of 1973
and during the course
of the investigation into
the Nixon White House,
special prosecutor Archibald
Cox issued a subpoena
for the secret White House audio tapes.
President Nixon refused to
comply with the subpoena
and instead fired the special
prosecutor in October of 1973
which is the so called
Saturday night massacre.
On March first, 1974, a
grand jury in Washington DC
indicted several former aides of Nixon
who became known as the Watergate seven.
When Cox's successor sought
the tapes and Nixon refused,
the case went to the Supreme Court.
The court ruled in July of 1974
in a unanimous eight to zero decision
against President Nixon's claim
that the tapes were protected
by executive privilege.
President Nixon was ultimately
charged with three articles
of impeachment, though it's
interesting that two articles
of impeachment were actually
rejected by the house.
The three articles of
impeachment that were adopted
against Nixon included
obstruction of justice
by using his powers of office
to cover-up the Watergate break-in.
Abuse of power by disregarding
Nixon's constitutional duty
to faithfully execute the
laws of the United States
and administration of justice
and contempt of Congress
by disobeying congressional
subpoenas seeking evidence
that was quote, deemed
necessary by the committee
in order to resolve by
direct evidence, fundamental,
factual questions relating
to presidential direction,
knowledge or approval
of actions demonstrated
by other evidence to
be substantial grounds
for impeachment of the President.
In other words, disregarding
congressional subpoenas
about what the president
knew and when he knew it.
The two articles of
impeachment that were rejected
against Nixon included
usurping the powers of Congress
and hiding the fact that
the US had bombed Cambodia
and an emolument violation
related to tax fraud.
So with the house ready to vote
on the impeachment articles,
President Nixon resigned
before facing the actual
formal impeachment
which takes us into the more modern era.
The third presidential
impeachment involved
President Bill Clinton.
During Clinton's presidency,
a special prosecutor was appointed
to investigate the
so-called Whitewater affair
which was not one of Bill
Clinton's extramarital affairs,
but rather a failed real estate company
that the Clintons had been
involved in back in 1978.
Appointed special counsel
Kenneth Starr turned
through evidence about Whitewater
without finding any serious offense.
So he expanded the investigation
to include other matters
and in this expanded investigation,
Clinton's long history
of extramarital affairs
and sexual harassment
allegations caught up with him.
An Arkansas a woman named Paula Jones
sued Clinton for sexual harassment.
During the lawsuit, her legal
team uncovered information
that Clinton had an
affair with a young intern
while he was president.
The intern, Monica Lewinsky
told her friend Linda Tripp.
As part of the expanded investigation,
Starr investigated
President Clinton's actions
to cover up the affair
and obstruct the sexual
harassment lawsuit.
Starr would eventually chronicle
all of this information
in a 500-page report.
House Republicans on that
basis decided to impeach.
The articles of impeachment
against President Clinton
are by far the simplest
and there are only two
and they're pretty straightforward.
The first is lying to a grand
jury about Monica Lewinsky
and the second is attempting
to obstruct justice
regarding the civil case by Paula Jones
against President Clinton.
On those articles, the
House voted to impeach,
but the Senate voted to
acquit President Clinton,
ending the impeachment.
So what do we make of all this?
Well, Gerald Ford once criticized
the impeachment processes
meaning quote, whatever a
majority of Congress says it is.
He meant that impeachment
is a purely political device
and on some level,
whether something is
impeachable is a tautology.
If you have the votes
then it is impeachable.
Impeachment is, first and
foremost, a political tool
and one way of looking at the
Clinton impeachment is that
while perjury and obstruction
of justice are serious
and felonies, the Senate
simply didn't believe
that President Clinton's
perjury and obstruction
of justice violations involved matters
that gravely impacted the
public, but another way
of looking at it is that it was simply
a craven political move
and there's no rhyme
or reason behind it other than that.
So what can we surmise from
these three different attempts
to impeach presidents?
Well, there are several key principles.
First is that the founders provided a tool
that can be used for good or ill.
It all depends on the circumstances.
The second is that there
is a legal standard
that is not purely political.
The standard for impeaching
the president is broad enough
to encompass things like
treason, bribery, crimes,
corruption and moral failings,
but the Senate doesn't necessarily need
to find the president
guilty of a criminal offense
for the president to
be impeached and third,
political factors
absolutely do play a role
in impeachment proceedings.
Congress decides whether a
president should be impeached
and their decisions are often rooted
in practical political considerations
rather than legal ones.
So what is gonna happen
with President Trump
and how will history look back on this?
Well, impeachment is, back then it was
because the democrats
appear to be moving forward
with formal impeachment inquiries.
Article one is labeled abuse of power.
In that article, the house alleges
that president Trump abused
the power of the presidency
by using the power of his office
to solicit a foreign
government to interfere
in the 2020 presidential
election in his favor
and for his own personal gain
as Donald Trump, the individual.
He conditioned official acts
of the United States government
on receiving personal gain
and subverting the national
interest of the United States
and corrupted the democratic election
that will take place in 2020.
The second article of
impeachment is labeled
obstruction of Congress.
There, the house alleges
that the president obstructed Congress's
lawful impeachment inquiry
by directing the
executive branch agencies,
offices and officials not to comply
with congressional subpoenas
regarding the impeachment inquiry.
Effectively, the executive
branch led by President Trump
has completely stonewalled
the entire congressional
impeachment efforts and of course,
Congress has sole impeachment authority.
Now, you can disagree about
the merits, but it appears
that these articles of impeachment
against President Trump
are grounded solidly in the foundation
of past articles of impeachment
against past presidents.
Indeed, these kinds of abuse
of power and obstruction
of justice or obstruction
of Congress are exactly
the kinds of things that past presidents
have been impeached on in the past.
From my perspective, it's interesting
that the house did not pass a
third article of impeachment
against President Trump
related to bribery.
Certainly, acts of bribery are
outlined in the first article
of impeachment against President Trump.
So it's interesting that they
didn't go the step further
to actually name a specific
article of impeachment
related to bribery.
Mainly because there's so much
debate about what qualifies
as a high crime or misdemeanor
for the purposes of
impeachment, but remember,
bribery is listed as the things
that you can impeach a president on
along with high crimes or misdemeanors.
So it's interesting that
the house decided not
to include an explicit
article of impeachment
related to bribery itself.
So what's going to
happen to President Trump
in the coming weeks and months?
Well, president Trump is gonna
be impeached by the house.
That much is certain.
That means that he will
now be tried in the Senate.
Now, I'm working on another video
to tackle all the Senate's procedures
during the coming impeachment
trial so stay tuned for that.
It's certainly unclear whether
any Republicans will vote
to remove President Trump from office,
but between the whistleblower complaint,
the witnesses that testified
in the impeachment hearings
and the articles of
impeachment, it's pretty obvious
that this is not gonna
be particularly good
for president Trump.
Even if he claims now that it
was totally okay and perfect,
but it's early in the game
and we still need far,
far more facts than we currently have.
So when you hear the news reports
about the potential
impeachment of President Trump,
keep in mind that there is
no constitutionally mandated
timeline for impeachment.
It can take years, but also keep in mind
that the House of Representatives
doesn't actually have
to call witnesses or start an inquiry.
They could vote to impeach
right away, if they wanted to
and let the Senate handle the trial.
So we will have to stay tuned.
Now whatever is in the
whistleblower complaint,
it's pretty obvious that
it's not going to be good
for President Trump, even if he now claims
that it was totally okay.
Now maybe the president
can convince his base
that this is nothing,
but it will take some
really creative spinning
of the truth to get there.
So if you're watching Mr. President,
I recommend you check
out creative nonfiction,
truth with style by Susan
Orlean on Skillshare.
Susan is a best-selling author
and longtime New Yorker staff writer
and she walks us through
her writing process
for transforming ordinary
subjects into exceptional stories.
Like turning a simple phone
call with a Ukrainian president
into an exceptional story that leads
to the fourth impeachment in US history.
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Do you agree with my analysis?
Leave your objections in the comments
and check out my other
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