[Image of original draft of Articles of Impeachment of President Nixon via Americanhistory.si.edu]

Emptywheel and I were chatting on the phone the other day and in the course of our conversation, I distinguished three different events in the course of impeachment and she thought maybe I should do one of  those “definitions of terms” posts which I have bored you all with in the past. Remember, when I put on the Professor Prop hat, I do it to help you avoid confusion and to help all of you cut through the ghastly amount of misinformation out there. In other words, pedantic as it may be, I do it with love.

On the the terms:

I) Impeachment Inquiry:

An impeachment inquiry is an investigation conducted by the House Judiciary Committee or one of its subcommittees or ad hoc committee to which it has delegated the task.

The purpose of an Impeachment Inquiry is to determine whether or not there are grounds to draft Articles of Impeachment. If conducted like a professional investigation, the outcome would NOT be foreordained, but rather would follow the facts and the law tand could as easily prove that Articles of Impeachment are not warranted as the converse.

Normally, an Impeachment Inquiry is a prerequisite for voting articles on impeachment.

(Editorial Note: I absolutely believe that an Impeachment inquiry is warranted at this moment. There are too many open and unanswered questions on a range of issues-including:

- how the famous “16 words got into the state of the Union Address (I hope to devote a subsequent post to why this false statement may be far more grievous than mere perjury),

- whether or not the pardoning of Scooter Libby was an “abuse” rather than a a “use” of the pardon power,

- whether the firing of US Attorneys may have been a form of retaliation–including preemptive retaliation– against USAs who refused to bring bogus prosecutions against the White House’s political enemies or for bringing good faith prosecutions of the White House’s political allies,

- whether the continuation of the NSA spying program during the period dating from Comey/Ashcroft’s refusal to re-certify the program until the date when the program had been modified in such a way that DOJ was willing to certify it anew was a gross and unremediated violation of the civil liberties  of all Americans, and

- whether the White House’s interference in the public statements made by EPA Secretary Christine Todd Whitman’s with respect to air quality at Ground Zero which caused her to falsely report that the air was safe to breath when EPA testing should the exact opposite to be true constituted a physical attack upon the people of the City of New York and upon rescue workers and other working on “the pile”.

Re: that last item, Rep. Jerry Nadler has been way, way out front on this one and after reading his piece in the Long Island Section of the Times and I think he has a point. Saddam is supposed to have gassed the Kurds. President Bush got Whitman to lie repeatedly about the results of the air quality testing and she told them it was safe to go back downtown, where they breathing in lungful after lungful of poisoned air. Just yesterday I was at yet another BBQ where the topic was yet another friend in the Fire Department who just had to give up active duty because of the lung scarring. Sickening. But I digress…

 II) Articles of Impeachment

If the Impeachment Inquiry results in a realization that a sufficient quantity and quality of evidence exists that the President has abused his powers to the detriment of the American people and or the detriment of the Constitution, then the House of Representatives can vote Article of Impeachment. These Article are the functional equivalent of an Indictment in a criminal case.

However, it is REALLY REALLY important to note that the acts indicted in Articles of Impeachment do NOT have to be crimes in themselves AND the mere fact that the President may have committed an criminal act, does not in and of itself constitute grounds for imapechment. Is you head spinning yet?  It’s not as crazy at it sounds at first blush.

As Alexander Hamilton pointed out in Federalist Paper #65, the jurisdiction of a Court of Impeachment would not be the same as that of a criminal court.

The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITCAL,…..

[emphasis in original].

Further, Justice Joseph Story writing in his Commentaries on the Constitution in 1833 put forth with regard to impeachment

Not but that crimes of a strictly legal character fall within the scope of the power [to impeach], but that it has a more enlarged operation, and reaches, what are aptly named political offenses, growing out of personal misconduct or gross neglect, or usurpation, or habitual disregard of the public interests…..

[emphasis mine]

III) Trial by the Senate

Only if the House of Representatives actually votes Articles of Impeachment, would the President (or possibly the President and Vice President together–the Framers considered that possibility as well, but this post is too long as it is, so I will save that for another day) then proceed to a trial in the Senate.

As with other trials, he could be “convicted”  in which case he would be ejected from office, or like President Clinton, he could be acquitted. If President Bush is convicted by the Senate, the ONLY punishment from that trial is political– his ejection from office and his inability to hold office in future.

However, if any of his conduct is ALSO a violation of criminal statutes, he can be subsequently prosecuted in a criminal court. This latter fact is also true once President Bush leaves office upon the expiration of his term, providing the applicable Statute of Limitations has not expired.