Abstract

EKSTEEN, Rlaan. The constitutional requirements and processes to remove a president of the USAfrom office: The case of president Donald Trump in a politically charged atmosphere. Tydskr. geesteswet. [online]. 2020, vol.60, n.3, pp.619-643. ISSN 2224-7912.  http://dx.doi.org/10.17159/2224-7912/2020/v60n3a4.

Before news about the Covid-19 pandemic engulfed the world from February 2020, and the blanket media coverage of it in the USA in particular, one of the biggest news stories in the USA in recent times was the impeachment of president Trump. This event has prompted many to ask what it means and how it works. Impeachment is grave and momentous. This serious constitutional power is inherently a legal as well as a political process and has only been wielded by Congress on a few rare moments in US history. It is potentially a profoundly disruptive event and prudently consists of a two-step process that starts with the House of Representatives approving articles of impeachment (the formal accusations) against the president and their consequent referral to the Senate to conduct the trial and pronounce a ruling on the accusations. Each of the Chambers of Congress is entrusted with a specific but distinct responsibility in respect of impeachment that is prescribed in Article I of the Constitution. The House "shall have the sole Power of Impeachment" and the Senate "shall have the sole Power to try all Impeachments". "Impeachment" as the term is often used is thus not synonymous with both impeachment and removal from office. The House must first formulate and approve the indictment against the president; its power is not dependent on the Senate's. The latter's is "to try" the president on the approved charges. With the Chief Justice presiding the Senate must vote by a required two-thirds majority for indictment. Only then it has to decide how to deal with this violation of oath of office, which is not a criminal conviction in the traditional sense of law breaking. While resembling a court, it is, however, vital to understand that the Senate conducts a political trial, not a judicial trial. Once both these prescribed steps have been successfully completed can the Senate declare the president unfit to serve and remove him from office. It is the Senate that has the final say in any impeachment. The House plays no role in how the Senate must dispose of an impeached president. There were several challenging points with the case for impeaching president Trump. After three years, during which Democrats publicly and very vociferously accused him of a host of criminal acts -from bribery and extortion to campaign finance violations, obstruction of justice, collusion with Russia, conspiracy and even treason - the two articles of impeachment eventually adopted allege none of those things. Instead two non-criminal allegations - abuse of power and obstruction of Congress - were formulated as charges. Both those seemed farcical to Republicans. Politically, the substance of the articles was a major retreat by Democrats. They thereby effectively admitted that the president did not commit any statutory crimes. It also meant that it would be the first presidential impeachment in history in which no statutory crimes were even alleged. In this alone, president Trump claimed vindication even before the Senate commenced with his trial. Unfortunately, Democrats refused to involve the courts and wait for judicial review. House speaker Pelosi said that they could not be at the mercy of the courts! These kinds of statements seem to belie ulterior political motives ahead of a presidential election less than a year away. She exposed her political playbook when in early 2019 she had first announced that she saw no need for impeachment to proceed only to reverse her stand a few months later in September 2019 when she called on the House to proceed immediately with hearings to formulate articles of impeachment in order to have the entire process completed by the end of 2019. Urgency became the justification for expediting this traditionally weighty and lengthy process. However, once the articles had been passed by the House she held onto them for several weeks into January 2020 before conveying them to the Senate for its process to start. So much for the urgency! Republicans locked ranks in support of the president. In the House, every Republican member voted against impeachment. When out of 51 Republican Senators the Democrats could convince only one to support one of the charges the trial ended with the president's acquittal. Remarkably, president Trump has now become the first impeached president to run for re-election. He now touts the partisan vote in the House as illegitimate and his Senate acquittal as vindication. It bolsters his argument that the Democrats and the media never accepted his 2016 victory and have tried to overrule the verdict of voters ever since. Democrats may well have failed to persuade the country: instead they have set a new, low standard for impeaching a president. The House articles, on face value, were defective in that they both failed to meet the constitutional threshold of "high crimes and misdemeanors". Eventually the intricate process of impeachment failed to deliver that which the Democrats wanted to achieve at all cost. With these high hurdles in place, no president has ever been removed from office by such means, and only three presidents have ever been impeached by the House - Andrew Johnson in 1869, Bill Clinton in 1995 and Donald Trump in 2019. In 1973president Richard Nixon resigned before the House could vote on articles of impeachment. What the USA has experienced in the case of president Trump is of a different order. The impeachment proceedings are supposed to be a sober constitutional matter - not a political circus. But a politically divided nation, the fractured media environment, the toxicity of social media and a president who feeds on chaos combined to create an atmosphere unlike anything that existed during previous impeachment proceedings. With not much more than a party line impeachment vote the Democratic Party seemed motivated by a partisan desire to weaken president Trump during the 2020 election cycle. Had Covid-19 not entered the political scene and is bound to occupy centre stage in the months leading up to the presidential election in November 2020, the issue of impeachment would have been a major campaign slogan for the Democrats.

Keywords : Abuse of power; Articles of impeachment; Chief Justice; Congress; Democrats; House of Representatives; Impeachment; Intelligence Committee; Judiciary Committee; Obstruction of Congress; president Trump; Republicans; Senate; speaker Pelosi; Ukraine.

        · abstract in Afrikaans     · text in Afrikaans     · Afrikaans ( pdf )