Article II, Section 4:

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.

President Donald Trump was impeached twice during his single term in office. In each case, he was acquitted on all counts by the Senate.

The first impeachment trial stemmed from a call President Trump had with the President Volodymyr Zelenskyy of Ukraine in which President Trump asked the Ukrainian President to announce two investigations: one involving his potential opponent in the upcoming 2020 presidential election and a second into unsubstantiated allegations that entities within Ukraine had interfered in the 2016 presidential election.1

, at 81–83 (2019). At the time of the call, the Office of Management and Budget had frozen $400 million in military aid to Ukraine at the direction of the President.2 The contents of the call initially came to light through an intelligence community whistleblower report, but a summary of the call was later made public by President Trump.3

The House investigation proceeded in two phases. The fact-finding portion of the investigation was primarily handled by the House Intelligence Committee, in cooperation with the Committee on Oversight and Reform and the Committee on Foreign Affairs.4 The early stage of this phase of the investigation saw some controversy over whether the House must explicitly authorize the initiation of an impeachment investigation. Although the Speaker of the House had announced that the committee investigations constituted an “official impeachment inquiry,” the White House counsel objected to the investigations on the ground that the investigation lacked “the necessary authorization for a valid impeachment proceeding” and violated the Due Process Clause.5 As a result, the President instructed members of his administration not to cooperate with the House’s “unconstitutional inquiry.” 6

The House later took action to explicitly approve the impeachment investigation by adopting a resolution authorizing the House committees “to continue their ongoing investigations as part of the existing House of Representatives inquiry into whether sufficient grounds exist . . . to impeach Donald John Trump.” 7 Nevertheless, the White House and other Executive Branch offices generally refused to comply with the House investigators requests for information, including subpoenas. Some Executive Branch officials, however, made the individual determination to cooperate with the impeachment inquiry and, as a result, the Intelligence Committee was able to hold a number of investigative hearings and issue a report outlining their findings. The record established in the fact finding phase was then provided to the Judiciary Committee.

Phase two of the impeachment investigation was conducted by the Judiciary Committee. This phase focused on whether the President’s conduct, as uncovered in the fact finding phase of the inquiry, constituted an impeachable offense.8

; Report by the Majority Staff of the H. Comm. on the Judiciary, Constitutional Grounds for Presidential Impeachment, 116th Cong. (Comm. Print 2019). Following a series of hearings, the Committee recommended two articles of impeachment against the President, both of which were ultimately approved by the House. The first charged the President with abuse of power, alleging that he had used the powers of his office to solicit Ukraine’s interference in the 2020 election and had conditioned official acts, such as the release of military aid to Ukraine and a White House visit, on President Zelenskyy agreeing to announce the investigations.9 “President Trump,” the article alleged, “engaged in this scheme or course of conduct for corrupt purposes in pursuit of personal political benefit.” 10 The second article charged the President with obstruction of the House impeachment investigation by directing the “unprecedented, categorical, and indiscriminate defiance of subpoenas issued by the House of Representatives.” 11 “This abuse of office,” the article alleged, was “subversive of constitutional government” and “nullif[ied] a vital constitutional safeguard vested solely in the House of Representatives.” 12

Although the impeachment articles were adopted by the House on December 18, 2019, the managers were not appointed and the articles not delivered to the Senate until January 15, 2020.13

The Senate trial was characterized by deep partisan divides and complicated disagreements over questions of law and fact, including presidential motive. But one clear constitutional conflict that arose during the trial involved the proper relationship between impeachment and criminal law. Trial briefs and debate made clear that the House managers and President Trump’s attorneys reached very different conclusions on the question of whether “high crimes and misdemeanors” require evidence of a criminal act or other legal violation.14 The House, consistent with past impeachment practice, asserted that for purposes of Article II “high Crimes and Misdemeanors” “need not be indictable criminal offenses.” 15 In response, however, the President’s attorneys asserted that an “impeachable offense must be a violation of established law,” and that the articles “fail[ed] to allege any crime or violation of law whatsoever, let alone ‘high Crimes and Misdemeanors,’ as required by the Constitution.” 16 The acquittal provided no clear resolution to these conflicting positions, but the debate over a link between illegal acts and impeachable acts appears to have had some impact on individual Senators. Indeed, the House’s managers’ failure to allege an explicit criminal act appears, along with criticism of the House investigation and failure of the House to prove its case, to have been among the primary reasons given for acquittal.17

As the Senate trial proceeded, it became apparent that a major point of contention would be whether the Senate would call its own witnesses. The House managers asked that the Senate authorize subpoenas for relevant Executive Branch documents and for testimony from various White House officials including former National Security Advisor John Bolton.18 With only forty-nine Senators voting in favor, the Senate chose not to approve that request, and the record was limited to the evidence provided by the House.19

Ultimately, the Senate acquitted President Trump on both counts. Article I failed by a vote of 48-52 while Article II failed by a vote of 47-53.20

The second Trump impeachment occurred a year later in the waning days of the Trump presidency following the events on January 6, 2021, at the U.S. Capitol in which some supporters of President Trump attempted to disrupt the congressional certification of the 2020 presidential election as having been won by Joseph Biden. The House moved quickly following those events. Passing on an investigation, the Judiciary Committee staff compiled publicly available evidence relating to the President’s actions on January 6 and within one week had introduced and approved a single article of impeachment charging the President with “incitement to insurrection.” 21 Specifically, the article alleged that in the months running up to January 6th the President had consistently “issued false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the American people.” 22 He then repeated those claims when addressing a crowd on January 6, and “willfully made statements that, in context, encouraged—and foreseeably resulted in—lawless action at the Capitol. . . .” 23 Notably, although the House ultimately impeached President Trump prior to the expiration of his term, the Senate did not commence a trial until after President Trump had left office.24

The Senate trial saw the chamber make two important threshold determinations regarding trials of former Presidents. First, although the Constitution clearly requires the Chief Justice to preside over presidential impeachment trials, the Senate implicitly determined that that requirement does not extend to the trial of a former President. At the opening of the trial, Senator Patrick Leahy, President pro tempore of the United States Senate, was sworn in as presiding officer without objection.25

The Senate also made the threshold determination of whether it had the constitutional authority to try a former President. After briefing and debate on the question of whether the Senate had jurisdiction over a former President for acts that occurred during his tenure in office, the Senate explicitly determined by a vote of 56-44 that it did.26 Thus a majority of Senators, as they have on previous occasions, determined that former officials may be tried by the Senate and, though not removable, remain subject to disqualification from holding future office if convicted.27

With respect to whether the President had committed an impeachable offense, the main substantive question during the trial arguably revolved around the proper application of the First Amendment. The former President’s attorneys invoked the First Amendment as a defense to the impeachment charge, asserting that free speech protections apply and limit the conduct that can be considered an impeachable offense.28 The President’s political statements at the rally, his attorneys argued, constituted “core free speech under the First Amendment” and thus not an impeachable offense.29 The House managers disagreed, arguing that “The First Amendment has no application in an impeachment proceeding” because impeachment “does not seek to punish unlawful speech, but instead to protect the Nation from a President who violated his oath of office and abused the public trust.” 30 Moreover, even if the First Amendment did restrict the impeachment power, “it still would not protect President Trump’s calls to violence,” which the managers asserted fell within the well-established category of unprotected speech “directed to inciting or producing imminent lawless action.” 31 In the end, the First Amendment arguments made by the former President’s attorneys do not appear to have had an impact on Senators, as only one Senator who voted to acquit the former President mentioned the First Amendment in the formal explanation of his vote.32

Although a majority of Senators voted to convict, former President Trump was ultimately acquitted by a vote of 57-43.33

Footnotes

1

H.R. Rep. No.

116-346

, at 81–83 (2019).

2

Id. at 82.

3

Id. at 126.

4

See Staff of H. Perm. Select Comm. on Intelligence, H. Comm. on Oversight and Reform, & H. Comm. on Foreign Affairs, The Trump-Ukraine Impeachment Inquiry Report: Report for the H. Perm. Select Comm. on Intelligence Pursuant to H. Res. 660 in Consultation with the H. Comm. on Oversight and Reform and the H. Comm. on Foreign Affairs, 116th Cong. (Comm. Print 2019).

5

Press Release, Nancy Pelosi, Speaker of the House, Pelosi Remarks Announcing Impeachment Inquiry (Sept. 24, 2019), https://www.speaker.gov/newsroom/92419-0.

6

See Letter from Pat Cipollone, White House Counsel, to Nancy Pelosi, Speaker of the House of Representatives, et al. (Oct. 8, 2019) https://s3.documentcloud.org/documents/6459967/PAC-Letter-10-08-2019.pdf.

7

H.R. Res. 660, 116th Cong. (2019).

8

See H.R. Rep. No.

116-346

; Report by the Majority Staff of the H. Comm. on the Judiciary, Constitutional Grounds for Presidential Impeachment, 116th Cong. (Comm. Print 2019).

9

H.R. Res. 755, 116th Cong. (2019).

10

Id.

11

Id.

12

Id.

13

H.R. Res. 798, 116th Cong. (2020).

14

U.S. Const. art. II, § 4.

15

Proceedings of the United States Senate in the Impeachment Trial of President Donald John Trump, Vol. I: Preliminary Proceedings, S. Doc. No. 116-18, 116th Cong. 416 (2020).

16

Id. at 471.

17

See, e.g., Proceedings of the United States Senate in the Impeachment Trial of President Donald John Trump, Vol. IV: Statements of Senators, S. Doc. No. 116-18, 116th Cong. 1914 (2020) (statement of Senator James M. Inhofe) ( “Each of the past impeachment cases in the House of Representatives accused Presidents Johnson, Nixon, and Clinton of committing a crime. This President didn’t commit a crime.” ); id. at 1984 (statement of Senator Ted Cruz) ( “Indeed, in the Articles of Impeachment they sent over here, they don’t allege any crime whatsoever. They don’t even allege a single Federal law that the President violated.” ); id. at 1990 (statement of Senator David Perdue) ( “President Trump is the first President ever to face impeachment who was never accused of any crime in these proceedings, whatsoever. These two Articles of Impeachment simply do not qualify as reasons to impeach any President” ); id. at 2034 (statement of Senator John Cornyn) ( “But they failed to bring forward compelling and unassailable evidence of any crime—again, the Constitution talks about treason, bribery, or other high crimes and misdemeanors; clearly, a criminal standard . . . .” ). Other Senators identified the non-existence of a crime as an important factor in their vote, but nevertheless made clear their belief that a crime is not constitutionally required. See, e.g., id. at 1937 (statement of Senator Mitch McConnell) ( “Now, I do not subscribe to the legal theory that impeachment requires a violation of a criminal statute, but there are powerful reasons why, for 230 years, every Presidential impeachment did in fact allege a criminal violation.” ); id. at 2016 (statement of Senator Rob Portman) ( “In this case, no crime is alleged. Let me repeat. In the two Articles of Impeachment that came over to us from the House, there is no criminal law violation alleged. Although I don’t think that that is always necessary—there could be circumstances where a crime isn’t necessary in an impeachment . . . . ” ).

18

See Proceedings of the United States Senate in the Impeachment Trial of President Donald John Trump, Vol. II: Floor and Trial Proceedings, S. Doc. No. 116-18, 116th Cong. 1498–99 (2020).

19

Id. at 1499.

20

166 Cong. Rec. S937 (daily ed. Feb. 5, 2020) (acquitting President Trump on Article I by a vote of 48-52); id. at S938 (acquitting President Trump on Article II by a vote of 47-53).

21

See Staff of H. Comm. on the Judiciary, Materials in Support of H. Res. 24 Impeaching Donald John Trump, President of the United States, for High Crimes and Misdemeanors, 116th Cong. (Comm. Print 2021); H.R. Res. 24, 117th Cong. (2021).

22

Id.

23

Id.

24

See Proceedings of the United States Senate in the Impeachment Trial of Donald John Trump, Vol. I: Preliminary and Floor Trial Proceedings, S. Doc. No. 117-3, 117th Cong. 23 (2021).

25

167 Cong. Rec. S142 (daily ed. Jan. 26, 2021) (swearing in Patrick Leahy (D-VT), President pro tempore of the United States Senate, as presiding officer).

26

167 Cong. Rec. S609 (daily ed. Feb. 9, 2021) (determining that “Donald John Trump is subject to the jurisdiction of a Court of Impeachment for acts committed while President of the United States, notwithstanding the expiration of his term in that office” ).

27

See Jared P. Cole & Todd Garvey, Cong. Rsch. Serv., R46013, Impeachment and the Constitution 47–48 (2019)

28

Proceedings of the United States Senate in the Impeachment Trial of Donald John Trump, Part II, S. Doc. No. 117-2, 117th Cong. 146–75 (2021).

29

Id. at 156.

30

Proceedings of the United States Senate in the Impeachment Trial of Donald John Trump, Part III, S. Doc. No. 117-2, 117th Cong. 208 (2021).

31

Id. at 209 (citing Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

32

See Proceedings of the United States Senate in the Impeachment Trial of Donald John Trump, Vol. II: Visual Aids from the Trial and Statements of Senators, S. Doc. No. 117-3, 117th Cong. 875 (2021) (statement of Senator Dan Sullivan) ( “[T]he House managers claimed, in arguing their incitement charge, that First Amendment political speech protections do not apply to elected officials in impeachment proceedings. A conviction based on this breathtaking precedent has the potential to significantly further undermine core constitutional protections for Americans and their ability to undertake political speech in the future.” ) But see id. at 791 (statement of Senator Charles E. Schumer) ( “The First Amendment right to free speech protects Americans from jail, not Presidents from impeachment.” ).

33

167 Cong. Rec. S733 (daily ed. Feb. 13, 2021) (acquitting former President Trump by a vote of 57-43).