Feb. 14, 2020 - Constitutional law scholars weighed the significance of President Donald J. Trump's impeachment and its implications for the future of the presidency during a discussion with students on Wednesday at the University of Houston Law Center.
Renee Knake, Professor of Law and the Joanne and Larry Doherty Chair in Legal Ethics, served as the moderator and provided introductory comments. She provided a historical perspective of presidential impeachments, noting that there have been four efforts, three resulting in an impeachment by the House of Representatives, all acquitted by the Senate. However, the proceeding can be used beyond the presidency, and the House of Representatives has initiated impeach proceedings 62 times since 1789 for other officials.
"The Constitution is the source of the impeachment process," said Knake, Director of Law Center Outcomes and Assessments. "There are several provisions - Article 1, Section 2 - which gives the House of Representatives the sole power of impeachment. Article 1, Section 3 says the Senate has the sole power to try all impeachments. That is also the provision that puts the Chief Justice of the Supreme Court presiding over that trial.
"President Trump was impeached by the House of Representatives under two different articles - one related to abuse of power for using his high office to solicit the interference of a foreign government in the 2020 presidential elections. The second article, obstruction of Congress, charged that the president had directed the defiance of subpoenas within the House of Representatives' authority to initiate the power of impeachment. Both of those went forward and were voted on largely by party lines. Once impeached, the Senate acquitted the president on both articles, again closely on party lines."
Associate Professor D. Theodore Rave, the George A. Butler Research Professor, was the first respondent on the panel. He discussed how some Constitutional actors do not always follow the same protocols as a member of the bench would.
"The impeachment process is a way to see how constitutional law works outside of the courts," Rave said. "We called what that happened in the Senate a trial, because that's what the Constitution suggests we should call it, but it didn't really look anything at all like a criminal trial.
"In a criminal trial, we would know why someone was acquitted. If the charges did not allege a violation of law, the judge would dismiss it. If there were a dispute about what happened, then there would be evidence and witnesses to come in and testify. It wouldn't be up to the jury to decide if witnesses would come in - the prosecutor gets to decide the witnesses to call."
Associate Professor Emily Berman, who teaches Constitutional Law, was asked how upcoming elections could influence future impeachments, and why many members of Congress are hesitant about the process.
"It's important to look at the reluctance with which the House of Representatives came to the decision to impeach," Berman said. "Certainly there are members of Congress who wanted to impeach the president since they were elected. However, there was a significant enough portion of the caucus who opposed the idea to prevent it from happening for a long time. It was not until sufficiently troubling Presidential actions were revealed, that people supported impeachment.
"I do think that the conduct will have to reach a certain threshold before any future president is impeached which I think is a function of a representatives being accountable to their constituents’ preferences.
The final panelist, Law Foundation Professor of Law Seth Chandler, responded to an inquiry regarding if Congress could use impeachment as a more effective tool going forward. Among other suggestions, he cited the 1927 U.S. Supreme Court case McGrain v. Daugherty as an example of how Congress can be more assertive.
"Our courts are not set up to handle aggressive assertions of executive privilege in a timely fashion," Chandler said. "What could be created is a special panel perhaps of three district court judges and three circuit court judges that is designed to meet when there are claims of executive privilege or executive immunity, and decide them on an expedited basis which would provision them for direct cert to the Supreme Court.
"In theory, one can fix the Senate rules which do not seem designed for a real process. One might provide a greater role than figurehead than the Chief Justice."
Following each professor's remarks was a question-and-answer session with student attendees.