When It is All Over Amend the Impeachment Clauses

By Eric Segall

The United States Constitution is one of the most difficult Constitutions in the world to amend. It takes supermajorities in both the Congress and the states to formally change the document. Yet, it has happened 27 times in our history, and it needs to happen again with regard to the impeachment procedures for the President of the United States.

Constitutional amendments are especially needed and appropriate for the Impeachment Clauses because the Supreme Court has appropriately said that judicial review of impeachments present non-justiciable political questions, so judicial review is unlikely to resolve many unanswered questions.

Article 2, Section 4 provides that "The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."

Article 1, Section 2, Clause 5 of the Constitution provides that the "House of Representatives ...shall have the sole Power of Impeachment.

Article 1, Section 3, Clauses 6 and 7 provide that 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."

Judgement 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, Judgement and Punishment, according to Law."

The Trump impeachment has raised many difficult issues that have no clear answers and should be the subject of a constitutional amendment.

What does it mean to say the Chief Justice shall "preside?" What real authority, if any, does he have? What does the word "misdemeanor" mean, and is the commission of a crime necessary for impeachment? Is Impeachment the sole remedy for a President who breaks the law until he leaves office or can a President be indicted while in office?

These open questions should be answered before the country goes through another debacle involving the impeachment of a President. Here are my preliminary takes.

The Chief Justice should not preside. Our nomination and confirmation process for Supreme Court Justices is political all the way down, and most Justices have clear partisan loyalties. In addition, as current events clearly show, the Chief Justice should neither be an ornament nor in charge of an inherently political process.

There are many ways to fix these problems but one might be something like this: "When the President of the United States is tried, the Senate Majority and Minority Leaders shall chose a retired federal judge to preside over the Impeachment. Such a selection shall occur within 10 days after the Articles of Impeachment are transmitted from the House to the Senate. If no agreement is reached within those 10 days, the Chief Justice of the Supreme Court shall designate a retired federal judge to preside."

The word "preside" is highly problematic and defining the term raises difficult and sensitive issues. I think a healthy compromise among many competing concerns might go something like this: "The Judge who presides over the President's Impeachment has authority to rule on motions, requests for witnesses, and documents. Any such ruling is subject to reversal by a vote of 2/3 of the Senators present."

Notwithstanding the claims of the president's defenders, there has been essentially universal agreement that a statutory crime is not necessary for conduct to count as a "high crime" within the meaning of the impeachment clause, but the language itself is hardly pellucid and would benefit from clarification.The Constitution should be amended to explicitly state that "no crime punishable by law is a prerequisite to Impeachment," and that "no President may be indicted for any state or federal crime while in Office but shall be subject to all applicable criminal penalties once out of Office. Any applicable statute of limitations shall be tolled while the President is in Office."

Additionally, I would change Article 2, Section 4 to read as follows:  "The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of substantial abuse of Office or the commission of any state or federal crime punishable as a felony." I understand "substantial abuse of office" is imprecise and I'm more than happy to accept friendly amendments to better define impeachable offenses.

There are of course many other ways to bring more clarity and transparency to the impeachment process but we should not be relying on ambiguous text written in 1787 to guide us. We also shouldn't wait until another impeachment to make these changes. It is time to move impeachment of the President into the 21st century.