LittleLaw Looks at… Impeachment in the US

February 9, 2021

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6 min read

What’s going on here?

With US President Joe Biden and Vice President Kamala Harris having been sworn into office on 20 January 2021, one could be forgiven for thinking that former President Donald Trump’s time in the spotlight is over. Nothing, however, could be further from the truth. On 9 February 2021, the US Senate (the upper chamber of Congress, the US’s legislative branch) convened for former President Trump’s second impeachment trial for his role in inciting the 6 January 2021 riot on the Capitol.¹This makes Trump the first President to face such a trial after leaving office, as well as the first President to have been impeached twice.

Trump’s 2019 impeachment, which related to his alleged abuse of power for his own political gain, did not ultimately lead to a conviction. This trial, however, could be very different. Several Republican Senators, including Senate minority leader Mitch McConnell, have privately indicated that they disapprove of Trump’s role in relation to the 6 January riot, whilst other influential Republicans are pushing Senators to convict.²Nevertheless, the Republican voter base is still largely behind Trump.³ Republican Senators must therefore carefully consider their political careers and the future direction of the GOP (GOP stands for Grand Old Party, a common nickname for the Republican Party) when making their final decision.

What is impeachment?

Impeachment simply refers to the removal of certain protections from a US President (or other high-ranking officials) so that they may be put on trial. The process commences with the Judiciary Committee of the House of Representatives (the US’s lower chamber of Congress) drafting a resolution that cites the grounds of impeachment, which must correspond to those set out in the US Constitution. Similar to his 2019 impeachment, Trump is currently being accused of engaging in “high crimes and misdemeanours”.⁴

Once drafted, the impeachment resolution is circulated amongst and voted upon by the 435 House members. Only a simple majority is required for the resolution to be passed.⁵ The impeachment has no concrete consequences other than removing the President’s immunity from prosecution (on limited grounds only). The resolution then proceeds to the Senate, where a trial is held with the Chief Justice presiding in the case of a President, or the president pro tempore of the Senate presiding in the case of a non-President.⁶ As Trump is no longer in office, the latter will be presiding over the upcoming trial. After hearing the evidence, which can take more than one month, the 100 Senators vote on the resolution. A two-thirds majority, or 67 votes, is required to convict.⁷

The impact of impeachment

Usually, a conviction for impeachment results in the President being removed from office and losing their post-Presidential pension.⁸ In this case, the former would clearly have little effect. Nonetheless, there are several other measures which the Senate can take once the President has been convicted. In the current instance, this includes taking a vote (which only requires a simple majority) to ensure that the former President can no longer hold public office, thus preventing Trump from running for re-election in 2024.⁹

Nonetheless, the highly politicised trial means that a decision to convict will have wider repercussions. For example, some believe that a conviction is the only way to halt the widespread belief in Trump’s claims of mass voter fraud during the 2020 elections. Certain GOP members want a clean break from the former President, who in their eyes espouses anything but conservative values.¹⁰ Others, however, are team Trump all the way, voicing strong opposition to what they deem a political witch hunt. This includes Republican Senators Josh Hawley and Ted Cruz. Stuck in the middle, however, are those who feel that Trump’s 6 January speech is enough to impeach him but are nonetheless acutely aware of the fact that Trump retains voter support¹¹ and that convicting him might cost them dearly during their re-election campaigns.

It is, however, likely that at least a few GOP Senators will vote to convict.¹² Unlike the 2019 trial, which concerned a phone conversation with a foreign leader halfway around the world, the 2020/2021 impeachment strikes closer to home. The mob that stormed the Capitol whilst Congress was in session, with several members only narrowly escaping confrontation, was unprecedented. This sentiment is reflected by the numbers: in 2019, zero House Republicans voted in favour of the first impeachment resolution; in 2020, this number had increased to 10¹³, with many speculating that it would have been higher if Representatives didn’t fear for their political futures, or even for their safety. During the Senate trial, 17 Republicans will need to ‘break ranks’ for Trump to be convicted. Whilst several Republicans, such as Mitt Romney and Susan Collins, have strongly opposed Trump’s actions, this number will not be easy to achieve.¹⁴

The controversy surrounding Trump’s second impeachment

As opposed to Trump’s first Senate impeachment trial, which took 21 days, the February 2021 trial is predicted to take just one week (so as not to take up too much of the Senate’s valuable time during Biden’s first months in office). This short time frame elicits questions of due process and is a major concern for Republicans, as is the fact that Trump is no longer the incumbent President. Though scholars have held this to be constitutional and legal precedent exists for the impeachment of an official who has left office, the controversy and high political cost involved will mean that many Republicans, even those who condemn Trump’s actions, may be very hesitant to convict him.¹⁵

Impeachment in the UK?

Similar to the US, the UK also has a process in place to prosecute public officials for “high crimes and misdemeanours”. The process, which dates back to 1367 and was last used in 1806, has so far only been used against ministers and is largely seen as obsolete, having been replaced by other measures such as collective cabinet responsibility. Nonetheless, it has been tested twice in recent years. In 2004, MP Adam Price wanted to impeach Tony Blair for his role in the 2003 Iraq invasion.In response, however, he was told that impeachment “effectively died with the advent of full responsible parliamentary government”.¹⁶ In 2019, opposition members of the House of Commons wanted to commence impeachment proceedings against Boris Johnson for his role in suspending Parliament and for potentially breaching the Brexit withdrawal agreement.¹⁷ The petition, however, was ultimately rejected.¹⁸ Overall, it is unlikely that impeachment will ever be used in the UK.

LittleLaw’s Verdict: It’s all politics, really

Turning our gaze back across the pond, it is clear that whilst Trump’s impeachment trial is highly anticipated, it is unlikely to result in Trump’s conviction.¹⁹ This is largely due to the aforementioned reasons, such as the trial’s short time frame and the fact the former President has left office. Additionally, many GOP Senators are afraid of being subject to the same wrath as the 10 House members who recently voted in favour of the impeachment resolution. Lastly, the greater the number of Republican Senators who cross the partisan line, the greater the rift within the GOP. Ultimately, whilst at least five GOP Senators will likely vote to convict, the 17-vote threshold will almost certainly not be met:²⁰ the rewardssimply don’t justify the political risk.