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What actually is impeachment?

The process of impeachment has its origins deep in English Common Law, and was adopted by the authors of the U.S. constitution as a mechanism to oust wayward officials, including presidents.  Section 4 of Article 2 states “The President, Vice President and all civil Officers shall be removed from office on Impeachment for, and on Conviction of Treason, Bribery or other high Crimes and Misdemeanours”.

Michael de la Pole, 1st Earl of Suffolk, a 14th Century English nobleman was the first recorded official to be impeached and thrown out of office for “high crimes and misdemeanours”.  De la Pole’s high crime?  As the king’s chancellor he had failed to pay a ransom for the town of Ghent in 1836, which subsequently fell to the French.

According to the United States Constitution, the House of Representatives can vote to impeach but, it is the Senate which actually tries the case.

The process has to be started by the House of Representatives, currently of course controlled by the Republicans by 238 to 193 and needs a simple majority to pass.

A trial is set in the Senate and a two thirds vote is necessary for removal.  Again, at the present time the Senate is controlled by the Republicans who have 52 seats to the 46 held by the Democrats.

Has an American President lost office through impeachment?  The answer is actually no.  Richard Nixon resigned before he could be impeached.  Bill Clinton was impeached in 1998 for perjury and obstruction of justice and indeed, Andrew Johnson was impeached in 1868 for replacing his secretary of war in defiance of an act designed to stop him doing so.  Both however were acquitted by the Senate and remained in office.

A Trump impeachment, may only be a remote possibility, but whether he was to go the way of de la Pole may depend on how modern America chooses to understand a very old, intentionally imprecise and hotly debated English legal term. 

Impeachment will not only be about applying the law, but, interpreting a medieval English idea forged during the Hundred Years’ War. 

Michael de la Pole had not clearly broken the law in 1836.  The “high crimes” he was accused of were negligence, failing to honour a promise, to follow the advice of a committee, cronyism and, above all, losing Ghent to the French.  His impeachment eventually led to him being stripped of all his titles and fleeing from England to France.

Precedent does however suggest that ultimately any impeachment decision will always be influenced by political just as much as by underlying legal factors.

If you need advice in relation to the interpretation of any contractual issues then contact Jane Williams or a member of our Civil Law team at Sinclairslaw on 02920 388398

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