The House has the sole power to impeach, but has paid little attention to the constitutional criteria for impeachment. Instead, it has exercised its power along party lines. As the late Gerald Ford remarked, "an impeachable offense is whatever a majority of the House of Representatives considers [it] to be at a given moment in history." The Senate, however, has ignored the House's "sole" power to decide what offenses are impeachable. The senators have voted according to their own notions on this crucial question.
Neither have any set criteria for guilt been observed in presidential impeachment trials. Some senators have ignored the question of guilt or innocence by voting along party lines. Others have ignored it by voting according to their opinions on what verdict would be for the good of the country. These latter senators have taken a great deal upon themselves. They ignore the fact that we (the people) decided what would be for the good of the country in 1791when we ratified the Constitution. It is the clear intent of the Constitution that the good of the country is best served by the rendering of impartial justice.
The discouraging history of presidential impeachments and trials raises a number of questions. Among these questions are:
(1) Assuming that Mr. Trump is impeached now and that there is sufficient evidence to convict him is it likely that he would be convicted?
Conviction requires a two thirds vote in the Senate. Mr. Trump still has a solid and vocal 37% public base. Past presidential courts have been routinely political. They have produced acquittals based on unconstitutional criteria and procedures. The Andrew Johnson and Bill Clinton courts violated the constitutional separation of the power to impeach from the power to try impeachments. They also violated the constitutional requirement that the Chief Justice preside over presidential trials. In 1868, Chief Justice Chase made one attempt to preside and was overruled by the Senate. In 1989, Chief Justice Rehnquist played a ceremonial role from start to finish. There is no reason at this point to suppose that our present Senate would be the first to conduct an impartial presidential trial.
(2) Would impeachment without conviction be desirable?
Impeachment resulting in acquittal would be, especially at this time, a poor answer to our present conundrum. It is not unlikely that, at a later date, Special Counsel Robert Mueller will produce solid evidence of impeachable but non-felonious offenses At this point; the double jeopardy clause of the Fifth Amendment would prevent a second impeachment trial. Since the new evidence would support only non-felonious offenses, he could not be tried in a criminal court either. He would join Bill Clinton as one of our elder statesmen.
In addition, a third (questionable) presidential acquittal would further cheapen the deterrent effects of impeachment. Perhaps the most damaging effect of a questionable acquittal would be its contribution to our ever increasing disrespect for our Constitution.
(3) Would impeachment with conviction be desirable?
In the long term it would certainly be desirable. If it were accompanied by disqualification, it would be even more desirable. It would strengthen the deterrent effect of the impeachment provisions. It would help motivate our four thousand or so civil officers (as well as their leader and president) to become more dedicated and less self-interested. In the short-term, it seems probable that Mr. Pence would bring some stability to the presidency. For better or for worse, he would also be a more effective leader of his party than is Mr. Trump.
(4) How about removal under the 25 th Amendment?
Sec. 4 of the 25 th Amendment reads, in part, "Whenever the Vice-President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the president pro temp ore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office , the Vice-President shall immediately assume the powers and duties of the office as Acting President."
This is by far the least desirable and most dangerous of our possible courses of action. It would concern itself only with Mr. Trump and would not, in any way, deal with the larger problem: the lack of an effective people's check over the power of our civil officers. Instead, it would take a giant step in the opposite direction. While a former president could appeal to Congress for reinstatement, the 25the Amendment gives tremendous power to a small group of appointed civil officers. The mere existence of the 25th Amendment's Section 4 is dangerous. It makes our government vulnerable to a coup like the one that occurred in Ukraine several years ago. As Hamilton warns us in Federalist 79, "The possibility of particular mischief's can never be viewed, by a well-informed mind, as a solid objection to a general principle which is calculated to avoid general mischiefs and to obtain general advantages." We should not put our freedom at risk in an attempt to deal with the present crisis.
(5) How about a forced resignation?
This would be better than an acquittal, but not much better. It would tell future presidents that they could violate our Constitution and its laws and escape the consequences. We need to strengthen the deterrent effects of the impeachment provisions. Allowing an offending president (or other civil officer) to escape the consequences of betraying our trust weakens one of our two protections against governmental oppression -- the other being our elections system.