Exposé d'Hélène et Victor

EXPOSE

Impeachment mechanism and examples.

Introduction.

- Article 1, section 2:

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

- Article 1, section 3:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

- The official definition given by the USconstitution website is:

Impeachment, in the U.S. and Great Britain, proceeding by a legislature for the removal from office of a public official charged with misconduct in office. Impeachment comprises both the act of formulating the accusation and the resulting trial of the charges; it is frequently but erroneously taken to mean only the removal from office of an accused public official. An impeachment trial may result in either an acquittal or in a verdict of guilty. In the latter case the impeached official is removed from office; if the charges warrant such action, the official is also remanded to the proper authorities for trial before a court.

Impeachment is a formal process in which an official is accused of unlawful activity, the outcome of which, depending on the country, may include the removal of that official from office as well as other punishment.

So first, we will talk about the principle of the “impeachment procedure” and secondly, we will talk about the different uses of this procedure.

Part 1. The principle of the “impeachment

Procedure”.

- In a first paragraph, we will come back in the past to discover where the impeachment comes from and how it has evolved through the centuries.

1. The origins of the Impeachment procedure in Great

Britain.

- The “impeachment” procedure comes from Great Britain, where it appeared during the 14^th century. The name of “impeachment” is due to a practice in Great Britain. Indeed, the procedure in Great Britain is divided in two stages: the right to launch proceedings is attributed to the lower house, the House of Commons and the right to judge is given to the upper house, the House of Lords.

Concerning the people referred by the procedure: all the possessors of a right, not only the Crown officials as ministers, judges… The King cannot be pursued by an impeachment procedure.

- Any MP can launch the procedure of impeachment. This MP has to find real charges against the pursued person and move the impeachment. Inside the House of Commons, a committee is formed with several MPs to establish the charges and create an Article of Impeachment. This article created, if the House of Commons approves the motion (a simple majority is required), the Article of Impeachment is given to the Lords who are the intermediate between the accused one and the MPs.

Then the House of Lords presided by the Lord Chancellor, hears the case.

The hearing can be compared with an ordinary trial: both sides can call witnesses and present evidence. At the end of the hearing, the Lords vote on the verdict (only a simple majority is required). Finally, one Lord stands up and declares "guilty, upon my honour" or "not guilty, upon my honour".

After the voting on all of the articles has taken place and if the Lords find the defendant guilty, the Commons may move for judgment; the Lords will not declare the punishment until the Commons have moved. The Lords then decide what punishment to choose, within the law: they have a large range of choices: dismissal, fine, seizure, banishment and even death penalty.

- A royal pardon cannot excuse the defendant from trial, but a pardon may reprieve a convicted defendant. However, a pardon cannot override a decision to remove the defendant from the public office they hold.

Or, the supremacy of the House of Commons over the King’s ministers during the 18^th Century has implied that the first one referred by the “impeachment”, resign from the first stage, from they were prevented, without waiting for the House of Lords’ judgment. So the responsibility over impeachment stopped at the first stage of the procedure, which was called “impeachment”. Then all the procedure has taken the name of “impeachment”, this term only pointed out the preliminary stage of a political and criminal responsibility opened by the “impeachment”.

The Impeachment procedure was first used against Baron William Latimer in 1376.

Today, it is considered as obsolete, MPs preferring the “motion of no confidence”.

The last call for an impeachment has been launched by General Sir Michael Rose in 2006 against Tony Blair, for leading the country into the War in Iraq in 2003 under allegedly false reason.

2. The translation of the British Impeachment

Procedure into the US Constitution.

- The US took their “impeachment” inspiration from Great Britain. The first 13 colonies first translated this procedure in their own Constitutions and the Impeachment has then been integrated in the US federal Constitution of 1787.

This is why we can find similarities between the English procedure and the American procedure.

For example, as in Great Britain, the two legislative chambers are concerned by the procedure: the lower chamber engages the proceedings and the upper chamber judges the pursued person: all the procedure is the same: the creation of Impeachment articles, the intermediate role of the upper house, also constituted as a Court and its members as judges. The royal or the presidential pardon cannot work in the accused favour.

Also the incriminations of the 2 countries are practically the same: “high treason, high crimes and misdemeanors” for Great Britain and “treason, bribery, high crimes and misdemeanors” for the US.

However, we can’t say that the US impeachment is the same as the Great Britain’s impeachment, especially because of the federal structure of the US. Moreover, contrary to Great Britain, only the federal civil officers are threatened, including the Vice-President and the President of the US. Some have argued that members of Congress can be pursued and others said no, this is still today a non-answered question.

Furthermore, the 2/3 (two-thirds) of the votes of the present senators are required to take a sanction.

Otherwise, the types of sanction are different in the US: only dismissal and eventually prohibition to exercise a federal function in the future.

3. The mechanism of the US Impeachment.

- In the US, the Impeachment can be used on two different levels: the federal level and the state level.

The US Constitution defines the Impeachment procedure on the federal level and limits it to the President, the Vice President, and all civil officers of the United States, as we have seen in the previous paragraph.

1. The State Level.

- State legislatures can impeach state officials, including governors, according to their respective state Constitutions.

Indeed, each state has its own lower house (also called Assembly) and its upper house (the State Senate).

However, the procedure is not exactly the same. For example concerning the NY case, during the trial made by the State Senate, but the judges of the NY State Court of Appeal is also present to the trial and participate to the vote.

Impeachment and removal of governors has happened occasionally in the history of the United States, usually for corruption charges.

2. The Federal Level.

- As we have seen previously, the impeachment process in the US is divided in two procedures.

a) The House of Representatives.

- The Impeachment procedure is introduced by a member of the House of Representatives, in his own initiative, by presenting an enumeration of charges given under oath, or by asking for referral to the appropriate committee.

The impeachment process can start by non-representatives. For example, the Judicial Conference of the United States can suggest that a federal judge should be impeached, so a special prosecutor would make a list of accusations that will form the basis for impeachment.

The type of impeachment resolution determines in which committee it will be referred, in general the House Committee on the Judiciary. A resolution to authorize an investigation first is referred to the House Committee on Rules and then to the Judiciary Committee.

The House Committee on the Judiciary will determine by majority vote if grounds for impeachment exist. If the Committee finds grounds for impeachment, they will create one or more articles that will include the specific allegations of misconduct. These articles are named: the Impeachment Resolution, or Article(s) of Impeachment, and they are then reported to the full House of Representatives with the committee's report.

The House debates the resolution and at the end of the debates will consider the resolution as a whole or vote on article by article. A simple majority of those present and voting is required for each article or the resolution as a whole to pass.

If the House votes to impeach, managers will be named to present the case to the Senate.

Then, the House of Representatives will adopt a resolution in order to notify the Senate of its action. After receiving the notice, the Senate will adopt an order notifying the House that it is ready to receive the managers. The House managers then appear in front of the Senators and present the Articles of Impeachment. After the reading of the charges, the managers return and make a verbal report to the House.

b) The Senate.

- The proceedings development is in the form of a trial, with each side having the right to call witnesses and perform cross-examinations. The House members, who are given the title of managers during the course of the trial, present the prosecution case and the pursued official has the right to build a defense with his own attorneys. Senators must also take an oath or affirmation that they will perform their duties honestly and with due diligence. After hearing the charges, the Senate usually deliberates in private. Conviction requires a two-thirds majority.

The Senate enters judgment on its decision, and a copy of the judgment is filed with the Secretary of State. Upon conviction, the official is automatically removed from office and may also be barred from holding future office. The removed official is also liable to criminal prosecution. The President may not grant a pardon in the impeachment case, but may in any following criminal case.

In the first years of 1980, the Senate began to use “Impeachment Trial Committees” pursuant to the Senate Rule 12.

These committees presided over the evidentiary phase of the trials, hearing the evidence and supervising the examination and the cross-examination of witnesses. The committees would then compile the evidentiary record and present it to the Senate, after, all senators would have the opportunity to review the evidence before the chamber and so vote to convict or acquit. The purpose of these committees was to organize the impeachment trials, which otherwise would have taken up a great deal of the chamber's time. Impeached people disputed the use of these committees, claiming them to be a violation of their fair trial rights as well as the Senate's constitutional mandate, as a body, to have "sole power to try all impeachments". Several impeached judges called Court intervention in their impeachment proceedings on these questions, but the Courts refused to become involved due to the Constitution's granting of impeachment and removal power solely to the legislative branch, making it a political question still not answered today.

Part 2. Different uses in the practice.

Impeachment is more associated at the president of United-States than at the others personality of the United-States. However, impeachment is utilized in the three different powers which composed the United-States.

1. The executive power

• The impeachment in the Federal State

• The president

The President of United State is the most important person of the executive power. Impeachment was imposed to two different presidents.

First, The President Andrew Johnson was impeached on February 24^th, 1868. Andrew Johnson violated the Tenure of Office Act (1867) trying to oust M. Stanton who was the Secretary of War. This act prohibited the President from dismissing official holders without Senate’s approval. Johnson didn’t want to use this act because it was the result of a politic war between him, who was a Southern democrat, and the part of Radical Republicans presented in the Congress.

Andrew Johnson was acquitted on May 26, 1868. However, just one vote of the Senate prevented the President of being resigning.

Then, Bill Clinton, the 42^nd President of United States was impeached. He was impeached on December 19^th, 1998 because of a case of sexual relationship. This case was that the President Clinton had hidden a sexual relationship with an intern of the White House. There was a report called “Starr Report” which was presented and delivered to the House of Representation on September 9^th, 1998. In this report, there was a legal justification for his impeachment. The House Judiciary Committee eventually approved 4 on the 11 grounds. There were the grand jury perjury, civil suit perjury, obstruction of justice and abuse of power. In the practice, he was accused of obstruction of Justice and grand jury perjury. The President Clinton was acquitted on February 12^th, 1999 on both accusations.

There was a particular case which was the case of Richard Nixon. It was the most famous case of impeachment. This case was about the scandal of the Watergate. When Richard Nixon was the President of the United-States, he was involved in the case of Watergate. This case was a political case of espionage in 1974. Indeed, some journalists revealed that some micros were hidden in the offices of Democrats which were in the Watergate at Washington. Then, we discovered that the President Nixon knew what happened and didn’t do anything.

The House Judiciary Committee wanted to accuse him utilizing 3 articles of impeachment on July 30^th, 1974. They wanted to accuse him of illegal wiretapping, misuse of the CIA, perjury, bribery, obstruction of justice, and other abuses of executive power. Nixon resigned on August 9^th, 1974 before the impeachment.

• Member of Cabinet

William W. Belknap was the secretary of war from 1869 to 1876 under President Ulysses Grant. He was impeached on March 2, 1876 because he received money in return for post trader ship appointments. He decided to resign. After his resignation, he was acquitted on August 1^st, 1876.

• The impeachment on State Level

• The Governors

The most recent case of impeachment about a governor is the case of Rod Blagojevich. Rod Blagojevich was the governor of Illinois when he was impeached. He was impeached on January 8^th and 14^th 2009. On January 29^th, 2009 He was removed because of a federal corruption and misconduct in his office. Moreover, the Senate declared that he couldn’t be eligible to hold public offices in Illinois.

• The Secretaries of State

Six secretaries of State were impeached. There were John Winter Robinson, the Secretary of State of Kansas in 1862, Georges Hillyer the Kansas State auditor in 1862 too, James Tate, the Kentucky State treasurer in 1888, A. James Manchin, the West Virginia State treasurer, Judith Moriarty the Secretary of State of Missouri in 1994 and Kathy Augustine, the Nevada State Controller in 2004.

In the case of Judith Moriarty, the Secretary of State of Missouri, she was impeached on October 6, 1994. She was accused of using her position to help his son who didn’t respect a limit to return a form which was from her office. She was condemned of removing from her office by the Missouri Supreme Court on December 12^th, 1994.

2. Legislative power

On July 7^th, 1797, the senator of Tennessee, William Blount, was impeached. He was accused of participating to a plot in order to help Britain to seize Louisiana and Florida to Spain.

The impeachment against William Blount was dismissed the January 14, 1799.
However, William Blount was expelled from the Senate one day after his impeachment because the Congress still had the power of discipline on their members.

This case was important because the Senate said that it couldn’t judge one of its members. Since this case, no other member of the Congress was impeached while the Senate never enounced clearly this argument.

3. Judiciary power

The procedure of impeachment is more utilized for the judiciary power than for the others. Indeed, on the sixteen procedure of impeachment of federal officials, twelve are from the judiciary power.

• On the Federal State

The newest judge who was impeached is Thomas Porteous, on March 11^th, 2010. He was accused on 3 articles. First, they convicted him for “engaging in a pattern of conduct that is incompatible with the trust and confidence placed in him as a federal judge”. Secondly, he was condemned for “engaged in a longstanding pattern of corrupt conduct that demonstrates his unfitness to serve as a United States District Court Judge”. Third, he was condemned for “ knowingly and intentionally making false statements, under penalty of perjury, related to his personal bankruptcy filing and violating a bankruptcy court order “. At last, he was convict for “knowingly made material false statements about his past to both The United States Senate and to the Federal Bureau of Investigation in order to obtain the office of United States District Court Judges”. Because of those arguments, Thomas Porteous was removed and disqualified on December 8^th, 2010.

• On the State Level

An Associate Judge can be impeached at the State Level. Indeed, there are some cases were associate judge were removed in a procedure of impeachment.

For example, Rolf Larsen who was an associate justice at the Supreme Court of Pennsylvania was impeached on May 24^th, 1994. He was convicted because of cases relating to some crimes (he had some problems with drugs) and to improper communication with a trial judge about a case. On October 4^th, 1994, Rolf Larsen was removed and the Senate prohibited him from holding public office in Pennsylvania.

In practice, The House of Representative has impeached only 16 federals officials. There were more accusations but most of the accused preferred to resign before the impeachment.

Conclusion

We have here presented you the impeachment procedure concerning Great Britain and the USA. However, other countries also apply practically the same procedure of impeachment. Here are some examples: Pakistan, Philippines, and Ireland.

Otherwise, we can find other procedures similar to impeachment: it is generally called “destitution procedure”… Most of the democratic countries use it, as France.