There is ongoing widespread speculation on whether President Biden will be impeached, how many articles of impeachment may be filed in the U.S. House of Representatives, if or when the House Judiciary Committee and the full House may approve any articles of impeachment; and if or when the U.S. Senate may hold an impeachment trial and vote on any House articles of impeachment.
While these questions are interesting, they are not the most important.
The most important is: Will any Biden articles of impeachment that may be approved by the House muster the two thirds vote in the Senate (currently sixty-seven votes) necessary to convict him?
The answer is no. The reasons are simple.
Impeachment is less a judicial process and is more a political process.
Constitutional scholar Erwin Chemerinsky says “The framers of the Constitution knew that ultimately this would be a political process. And so, none of us should be shocked or upset that it’s a political process today.”
Currently no political party has a two thirds majority in the U.S. Senate. There are 48 Democratic Senators, 49 Republican Senators, 3 independent Senators, 2 of whom are members of the Democratic Caucus and 1 of whom is a member of the Democratic Caucus for committee assignments.
This close partisan split in the Senate is expected to be the norm for the foreseeable future so any future Senate votes to convict an impeached president will need a bipartisan coalition to reach the two thirds majority threshold.
Compounding that political math, Article II, Section 4 of the U.S Constitution says, “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.” The constitution does not define “other high crimes and misdemeanors.” The U.S. Supreme Court has never defined “other high crimes and misdemeanors.” Even constitutional scholars disagree on a definition for “other high crimes and misdemeanors.”
Former longtime member of Congress, former vice president and former President Gerald Ford once said, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”
At no given moment in history has the Senate voted to convict a president based on the offenses included in House impeachment articles.
That was the case when the Senate did not convict Andrew Johnson on 11 House impeachment articles in 1868; did not convict Bill Clinton on 2 House impeachment articles in 1999; and did not convict Donald Trump on 2 House impeachment articles in 2020 and another 1 in 2021.
Some maintain Richard Nixon would have been the first president to be convicted by the Senate based on House impeachment articles. We will never know as Nixon resigned from the presidency before the House approved articles of impeachment and before a Senate trial could be held.
If Joe Biden is impeached in the House (a big if), the result of a Senate trial will very likely be acquittal just as it was with A. Johnson, Clinton, and Trump.
Going forward Americans need and deserve the following actions from every member of Congress, especially those in leadership positions.
A commitment to hit the pause button on all future presidential impeachments unless there is bipartisan consensus on them being more a judicial process and less a political process focused on blatantly advancing a political agenda.
A commitment to focus their full attention to working together in addressing the many challenges facing America.
David Reel is a public affairs/public relations consultant who serves as a trusted advisor on strategy, advocacy, and media matters who resides in Easton.