Sunday, October 13, 2019
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Non-Partisan Impeachment Approach in House Will Increase Likelihood of Trump Conviction in Senate

Interview with Neil J. Kinkopf, professor of law at Georgia State University, conducted by Scott Harris

Now that a formal impeachment inquiry has begun in the House of Representatives, Donald Trump will be only the fourth U.S. president to go through the impeachment process in the nation’s 243-year history. Given that the last impeachment of a president occurred 20 years ago when Bill Clinton escaped conviction in the U.S. Senate, the public has many questions about both the mechanics of the process and the politics.

In a recent article on the impeachment process, law professor Neil J. Kinkopf at Georgia State University summarized the designated steps in the nation’s founding documents. He writes, “The Constitution divides the impeachment power between the House and the Senate, providing that “[t]he House of Representatives … shall have the sole power of impeachment,” while granting the Senate “the sole power to try all impeachments.”  This means that the House’s decision to impeach a civil officer is analogous to an indictment, which is then forwarded to the Senate for adjudication and disposition.  And while the Constitution states, “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 and other high crimes and misdemeanors,” the authors of the Constitution fail to provide a strict definition of what high crimes and misdemeanors mean.

Between The Lines’ Scott Harris spoke with Kinkopf, who served as a counselor to then-Sen. Joseph Biden during the impeachment trial of President Bill Clinton in 1999. Here, he discusses the constitutional violations involved in the current Trump-Ukraine scandal and his view that a non-partisan approach to impeachment in the House will increase the likelihood of a Trump conviction in a Senate trial.

NEIL KINKOPF: One of the really interesting things is that the House rules don’t really speak about what happens with an impeachment. The Senate rules are quite detailed about a trial in the Senate, but the House doesn’t have any such rules and so there’s a lot of discretion in the speaker about how things should go forward. And so she’s decided instead of assigning this to any one committee to assign it to those committees that already are looking into various aspects of an inquiry into the president. And you know, I think this is a really unusual circumstance involving that kind of cross-committee jurisdiction. In the past, it’s been reasonably discreet inquiries that have usually been handled by the Judiciary committee. So this one’s a little unusual in just kind of how broad ranging the conduct involved is. And so Speaker Pelosi has made what – under the rules anyway – is at least a perfectly legitimate decision to allow the inquiry to proceed under a number of different committees. At some point though, their work is going to have to be brought together in articles of impeachment and those would typically go through the Judiciary committee, but they don’t have to, right? So the separate committees can draft their own separate articles of impeachment and forward them to the House floor. And that’s ultimately where the work is going to be done on which articles get passed and which ones don’t. If any get passed or if any get rejected.

BETWEEN THE LINES: And the passage of articles of impeachment only requires a majority. Is that right? 50% plus one of the House members.

NEIL KINKOPF: That’s right. The House has the authority to impeach, which in constitutional terms just means essentially to indict or to accuse. And so that can be done with a simple majority vote. But the Senate has the authority to try and convict impeachments, right? So they take the accusation and then determine what to do about it. And that requires a two-thirds vote. And so that’s where the real requirement of non-partisanship comes from. And although formally it only attaches to the Senate’s action, the House can vote an impeachment by a bare and partisan majority. That sort of action has virtually no chance of succeeding if it goes to the Senate. That’s exactly what happened with President Clinton. Two articles of impeachment passed, four were proposed, two passed and they passed with I think a couple of Democratic votes, but it was overwhelmingly Republican votes, and only Republican votes that constituted the majority.

BETWEEN THE LINES: Now as far as this Ukraine scandal, which seems to have triggered Nancy Pelosi as House speaker, her decision to move forward with an official inquiry into impeachment. I wondered if you would assess for us how the Ukraine scandal and what we know about it thus far. This summary of the phone call, not a transcript, but a summary of the phone call where maybe some important issues were not transcribed and written down. But what we know so far is that in this call it appears that Donald Trump was pressuring the Ukraine president to come up with some dirt on his potential political rival in the 2020 election, Joe Biden.

And there appears again to be a link between the withholding of millions of dollars’ worth of military aid that was committed and in the pipeline on its way to Ukraine to defend that nation against Russian aggression. And that was held up, it appears, by Donald Trump and I don’t think we know the details of the mechanisms that went into holding that aid up and was only released after the whistleblower complaint came to light. In your assessment, Professor Kinkopf, does what we know about the Ukraine scandal meet the definition of high crimes or a misdemeanor?

NEIL KINKOPF: Yes, is the simple answer. Then as we look at the Ukraine scandal, what happened is clearly the president has sought help for his re-election campaign in the form of opposition research and even action against his main rival for re-election. That in and of itself, even if we take out the quid pro quo with the military aid, that in and of itself is an impeachable offense. If you add back in, then, the quid pro quo, now it starts to look like extortion, potentially bribery, which is expressly within the terms of the impeachment clause: “treason, bribery and other high crimes and misdemeanors.”

Neil J. Kinkopf, professor of law at Georgia State University, served as a counselor to then Sen. Joseph Biden during the impeachment trial of President Bill Clinton in 1999 and now serves as a faculty advisor to the American Constitution Society.

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