Dear Editor,

I have received quite a few questions about the impeachment process in the House of Representatives. Recent events involving President Trump and the Ukraine have increased these questions. While some are from my students, many are from friends and neighbors in the Vermillion area. So, I thought I would write the Plain Talk with several observations. I speak only for myself and not for the University or the Law School.

In response to questions, the first point I make is that the impeachment process derives from Article II of the federal constitution of 1787. The impeachment process was an invention of the Framers in 1787. It is designed as an accountability provision for certain federal politicians. It is a supplement to—not a substitute for—the election process and the criminal justice system.

The questions usually raise a second (and related) point. To have constitutionally appropriate grounds for impeachment, the Congress does not have to have proof of a criminal act. Put another way, a federal governmental official can be impeached for conduct that is not a criminal offense.

Finally, I usually note a third point: in some ways, it is less difficult to impeach a politician in the House of Representatives than it would be to criminally convict a politician. This shows the insight of the Framers in finding a reasonable way to remove a President between elections.

I am also asked for an example of an “impeachable offense” that is not also a criminal offense. There are many. A good example, however, is found as the third Article of Impeachment in the 1974 Impeachment of President Nixon. The third Article of Impeachment was based on Nixon’s policy of “stonewalling” Congress in its investigation of Nixon’s 1972 Presidential campaign (against South Dakota’s George McGovern). Nixon refused to turn over relevant evidence. These refusals to produce evidence were not criminal conduct, but they were impeachable conduct.

This is not, by any means, the whole story of impeachment. These are just some of the basic, foundational principles. It is important, however, to remember these basics. That will make the hard questions of the future more manageable.

Yours truly,

David S. Day



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