The ins and outs of impeachment

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on March 29, 2018.


Mark E. Hornbeek

Mark E. Hornbeek represents individuals and both privately-held and public companies in a wide range of civil litigation matters.

By Phillips Murrah Attorney Mark E. Hornbeek

It has been a Stormy few months for the current administration. With the headlines full of names like Robert Mueller, James Comey and Vladimir Putin, there has been plenty of speculation surrounding the possibility of impeachment. Talking heads love to throw the term around, but how does impeachment work?

The Constitution doesn’t give much guidance into the impeachment process. The ability to bring impeachment charges against the president, the vice president or a public officer is given to the House of Representatives, which investigates public officials and then puts each impeachment charge to a simple majority vote. Afterward, the Senate has the ability to convict the accused by conducting a trial with a requirement of a two-thirds vote to remove the accused from office.

There are three grounds for impeachment, two of which are self-explanatory: bribery and treason. The third, high crimes and misdemeanors, is more akin to “covfefe,” in that it could mean practically anything. The framers chose this term in an attempt to clarify an earlier draft of the Constitution, which used the word “maladministration.” Perhaps there should have been a third draft for further explanation, as public officials have been impeached and convicted for offenses as diverse as perjury, tax evasion and even drunkenness. That last one seems particularly spiteful.

Simple incompetence generally doesn’t qualify as an impeachable offense, but even so, Congress has wide latitude to determine who deserves impeachment, and both parties have been accused of using the device as a political weapon.

Historically, a whopping 60 impeachment proceedings have been initiated by the House, but few have been successful. To date, only two presidents have been impeached by the House of Representatives. In 1868, Andrew Johnson was impeached for violating federal law, followed 130 years later by Bill Clinton’s impeachment for obstruction of justice and perjury. Neither was convicted by the Senate.

Surprisingly, the worst perpetrators of high crimes and misdemeanors appear to be federal judges. A total of eight judges have been impeached by the House and convicted by the Senate. Three more judges have been impeached but, not liking their chances, resigned before the Senate could hold a vote.

If America does, indeed, have to endure another impeachment, Semisonic’s Closing Time would make an appropriate theme song for the proceedings: “You don’t have to go home, but you can’t stay here.”

Mark E. Hornbeek is a litigation attorney at the law firm of Phillips Murrah in Oklahoma City.