When Donald Trump took the presidential oath of office on January 20, 2017, Nancy Pelosi was House Minority Leader during a period of unified Republican government in Washington. Former FBI director Robert Mueller had settled into a comfortable gig as a law firm partner in D.C. Rudy Giuliani had just parlayed his early bet on Trump’s long-shot candidacy into a new role as a presidential advisor on cybersecurity—or, as Giuliani put it, “security for cyber.” The former New York City mayor would become Trump’s personal lawyer a little over a year later.
Today, Giuliani is a key figure in an effort to pressure Ukrainian officials to dig up dirt on one of Trump’s political opponents, former vice president Joe Biden. Mueller, who temporarily returned to government to lead an investigation of Russia’s meddling in the 2016 election, used his final report to basically invite Congress to impeach Trump for obstruction of justice. And last month, as Giuliani’s stint as an amateur diplomat turned into a sprawling international scandal, Nancy Pelosi—now Speaker of the House—announced the launch of an “official impeachment inquiry” of Donald Trump. “The president must be held accountable,” she said. “No one is above the law.”
As the House moves forward with what is only the fourth presidential impeachment inquiry in U.S. history, here is what to expect.
What is impeachment, technically?
Impeachment is the process the U.S. House of Representatives uses to formally charge a government official with some sort of wrongdoing. Under Article I, Section 2 of the Constitution, the House has the “sole” power of impeachment.
What are impeachable offenses?
Article II, Section 4 lays out two specific grounds, and then one maddeningly-vague one: treason, bribery, and “other high crimes and misdemeanors.”
Strangely, “high crimes and misdemeanors” need not be “crimes” or “misdemeanors” to be impeachable offenses. Instead, the phrase acts as a sort of catch-all for acts that are wrong, especially when committed by a public official, but that do not necessarily violate a specific statute. For example, in 1974, the House Judiciary Committee approved articles of impeachment for Richard Nixon for obstruction of justice and contempt of Congress, both of which can be standalone federal crimes, and for abusing his powers as president, a far more nebulous charge. (The full House never actually impeached Nixon, who resigned before that could take place.)
Ultimately, defining “high crimes and misdemeanors” is up to Congress—something is impeachable if lawmakers say so. That said, in one definition, which appears in the House Parliamentarian’s guide to the chamber's precedents and procedures, the following types of conduct are impeachable: (1) improperly exceeding or abusing the powers of one’s office; (2) behavior incompatible with the function and purpose of one’s office, and (3) misusing one’s office for an improper purpose or for personal gain.
Parsing the distinctions between these three similar-sounding categories is tough, but the common thread is that they are all offenses committed using the power of the office one holds—as Alexander Hamilton put it in Federalist No. 65, the purpose of impeachment is to punish a “violation of some public trust.” The argument that “‘abuse of power’ is not a crime,” recently offered by former Trump attorney general and erstwhile toilet salesman Matthew Whitaker, has no bearing on whether Trump can be impeached for abuse of power.
Who can be impeached?
According to Article II, Section 4 it is: the president, the vice president, and “all civil officers” of the United States.
Frustratingly, the framers did not define the latter term, forcing lawmakers, academics, and courts to grapple with the outer limits of its scope ever since. But generally, whether someone qualifies as an impeachable “civil officer” depends on whether they possess enough power to be able to abuse it. Practically speaking, this has meant members of the executive or judicial branches: Of the 19 people whom the House has impeached, 15 were judges, two were presidents, and one was a Cabinet secretary.
The lone exception to this pattern took place in 1797, when the House impeached a legislator, Tennessee senator William Blount, for his role in an elaborate and harebrained plot to help the British take over parts of Florida and Louisiana. (Blount was deeply in debt after making some large, ill-advised speculative land purchases, and this was apparently the best solution he could come up with.) The Senate, though, couldn’t decide if Blount was a “civil officer” under the Constitution, and eventually resolved this ambiguity by voting to expel Blount on its own, without convicting him as part of the impeachment process. No lawmaker has been impeached since.
How does impeachment get started?
Historically, the House has passed a resolution charging one or more of its committees—usually, but not always, the House Judiciary Committee—with conducting an investigation to see if there are grounds for impeachment. As noted in a recent Congressional Research Service report, passing a formal resolution comes with several advantages: If there’s an “official” impeachment effort underway, courts may be more inclined to authorize congressional access to grand jury materials, for example, and be more skeptical of a president’s assertions of executive privilege. Earlier this month, when White House counsel Pat Cipollone wrote an absolutely wild letter arguing that the Trump inquiry “lacks the necessary authorization,” he was referring to the fact that the House has passed no such resolution yet.
The resolution, however, is a matter of Capitol Hill tradition, not constitutional law. The phrase “impeachment inquiry” is a colloquial term for an investigation, and the House’s “sole” power of impeachment means it gets to decide how to exercise that power, too. If House leadership decides that its regular oversight activities are part of an impeachment inquiry, they can just say so. When Pelosi announced the “official impeachment inquiry” last month, she opted for this more informal, collective approach, directing six committee chairs—Intelligence, Judiciary, Oversight and Reform, Financial Services, Foreign Affairs, and Ways and Means—to “proceed with their investigations” already underway “under that umbrella of impeachment inquiry,” as she put it. Although Pelosi has not made any overarching impeachment strategy public, the Intelligence and Foreign Affairs committees will likely focus on the substance of the Ukraine scandal; Financial Services and Ways and Means will look at allegations of the president's financial wrongdoing; and Oversight and Judiciary will fill in any gaps and help coordinate the investigation's many moving parts.
What happens during the investigative process?
In the House, the process is sort of a hybrid of the civil discovery (fact-finding) and criminal investigative processes. Lawmakers can, for example, take testimony from cooperative witnesses, and issue subpoenas to compel the testimony of less-cooperative witnesses and/or the production of documents. They can also give themselves additional, specific powers in an authorizing resolution—the one that initiated the impeachment of Bill Clinton, for example, allowed investigators to require witnesses to respond to written interrogatories. In a 2009 resolution that green-lit an impeachment inquiry of a federal judge, lawmakers inserted clauses allowing them to take depositions, spend money, and hire impeachment-specific staff.
Lawmakers typically draft reports summarizing the investigation's findings, but sometimes, the bulk of their work may have already been performed by someone else. House Republicans relied heavily on the report of independent counsel Ken Starr, for example, when impeaching Clinton for perjury and obstruction of justice. Here, if lawmakers decide to take their inquiry beyond the scope of the Ukraine scandal, they could, in theory, look at impeaching Trump for any of the alleged attempts to obstruct justice described in the Mueller Report, too.
What are articles of impeachment?
If the investigating committee turns up evidence of wrongdoing, it drafts “articles” of impeachment—formal charges, in the form of a House resolution—and then votes to send them to the full chamber with its recommendation. The committee can also recommend something more punitive than exoneration but less punitive than impeachment. Democratic lawmakers tried (and failed) to formally censure Bill Clinton, for example, hoping that a sternly-word reprimand would satisfy enough of their colleagues to prevent impeachment from taking place. That clearly didn't work out.
How does the House make its final decision on impeachment?
Assuming the investigating committee passes the articles it drafts, they then go to the House floor, where a simple majority is required to impeach. This is roughly analogous to an indictment by a grand jury, when the person previously under investigation gets charged with a crime. Already, more than half of the House’s 435 voting members—227 of 235 Democrats, and one independent, Justin Amash—have declared their public support for, at the very least, the present inquiry. If those numbers hold, there is mathematically nothing Trump can do to prevent his impeachment.
If the House impeaches, what happens next?
The Senate holds a trial to decide whether to remove him from office. Just as the Constitution affords the House the “sole” power to impeach, it grants to the Senate the “sole” power to “try” impeachments, and senators act as jurors who can convict or acquit. As president of the Senate, the vice president usually presides over such trials. But when the president is in the hot seat, the Constitution requires the Chief Justice of the Supreme Court—John Roberts—to do the job instead, since having a president’s successor administer their removal trial would present an obvious (and fascinating) conflict of interest.
The House, like a debate team plotting out an optimal tournament strategy, then picks a team of “managers” who they believe are best equipped to make the case to their upper-chamber colleagues. The managers are, more or less, the prosecutors. Perhaps you will recognize one of the 13 managers of the Clinton trial, seen below arguing that “you don’t even have to be convicted of a crime to lose your job in this constitutional republic if this body determines that your conduct as a public official is clearly out of bounds in your role.”
Defendants in an impeachment trial have constitutional rights to due process, including the right to counsel. It remains far too early to speculate about whom Trump might tap for that still-hypothetical job, but given Rudy Giuliani’s outsized role in the scandal underlying the impeachment inquiry, the president will likely need to seek representation somewhere else.
Does the Senate have to put Trump on trial if he’s impeached?
Probably, yes. McConnell appeared to put to rest concerns about another Merrick Garland-style blockade last month, stating in an interview that he has “no choice” but to convene a trial if the House impeaches, since a two-thirds majority—67 votes—is necessary to change the Senate rules that require him to do so.
That said, those same rules enable senators to move to dismiss the entire case, which they could potentially do very early in the trial. (According to the New York Times, some Republicans have already begun discussing such a strategy.) Generally, McConnell’s Senate is going to do as much as it can to shorten the spectacle of a trial and minimize Trump’s political exposure. If they have the votes—even those of swing-state GOP senators up for re-election in 2020, like Cory Gardner of Colorado and Martha McSally of Arizona—dismissal could be an expeditious way of bringing the matter to a close.
How do impeachment trials compare to criminal trials?
Many of the basic features will be familiar to fans of criminal procedurals: There are opening and closing arguments, and examinations and cross-examinations of witnesses, and presentations of evidence to the senators-as-jurors. The impeached person can enter a plea, although defendants are presumed to plead not guilty, since the rules for impeachment trials specify that if a defendant pleads guilty, “judgment may be entered thereon without further proceedings.”
There are some procedural quirks specific to Senate trials, however, most of which relate to the Constitution’s absolute delegation of impeachment-trying power to the Senate. The presiding officer—here, the Chief Justice—nominally has the power to rule on evidentiary questions, like whether something is relevant or material. However, senators unsatisfied with a particular outcome have the power to put these decisions to a vote of the full Senate, which is the equivalent of giving a jury the power to overrule the judge.
Senators can also pose their own questions to witnesses or managers—a degree of control over proceedings that regular juries do not enjoy. They have to do so in writing through the Chief Justice, though, and otherwise cannot speak or “engage in colloquy.” Senate majority leader Mitch McConnell, who has already begun preparing senators for an impeachment trial, has noted that a period of mandatory silence “would be good therapy for a number of them.”
What happens at the end of a trial?
The Senate votes on whether to convict. But the bar for doing so is high: The Constitution requires the agreement of a two-thirds majority of senators to remove an impeached person from office. In this case, evicting Trump from the Oval Office would require all 47 Democrats and Democratic-caucusing independents to hold the party line, and 20 Republican senators to break ranks with their party.
If it convicts, the Senate may try to bar the defendant from holding office in the future, too. This step requires only a simple majority vote, which means that, in theory, a person could be impeached by the House, removed by the Senate, and then elected by the people all over again.
Can the Senate impose any other kind of sentence?
No. Under Article I, senators can only remove impeached individuals from office and bar them holding office in the future. But the Constitution specifies that removed individuals can be prosecuted in regular courts once they return to private life. So, if Trump were convicted of something for which he could face criminal charges in addition to constitutional charges, he could be indicted after leaving office. Although Nancy Pelosi reportedly told colleagues earlier this year that she was hesitant to impeach Trump because she wants to see him “in prison,” those outcomes are not necessarily mutually exclusive.
Is this still true if Trump is impeached, but not convicted?
Probably, yes. The Department of Justice’s Office of Legal Counsel examined this question in 2000, and concluded in an extensive memo that the Constitution “permits a former President to be criminally prosecuted for the same offenses for which he was impeached by the House and acquitted by the Senate while in office.”
What happens if there aren’t enough votes in the Senate to convict?
The impeached person is acquitted, and they carry on living their lives and doing their jobs. This is what happened to both Clinton and Andrew Johnson, the only two presidents the House has impeached. In Clinton’s case, the final tally wasn’t close; 45 senators voted to convict him on perjury charges, and 50 senators on obstruction of justice charges, both well short of the 67-senator threshold. Johnson had to sweat more: He escaped conviction by a single vote.
For both men, impeachment nonetheless remained a stain on their legacies well after they left office, and had significant electoral repercussions in the years that followed. Clinton was a lame-duck president when he was impeached, but his vice president, Al Gore, narrowly lost a White House bid the following year—a result Gore would blame in part on his association with Clinton. Johnson, a Democrat eligible to run for re-election, couldn’t even win his party’s nomination in 1868; it instead tapped former New York governor Horatio Seymour, who lost in decisive fashion to Republican Civil War hero Ulysses S. Grant.
Can the president pardon himself?
No. Trump has previously floated the idea of issuing a self-pardon in connection with some of his other episodes of alleged criminality. But the framers made sure to close this loophole in Article II, Section 2, which specifies that the pardon power doesn’t extend to “cases of impeachment.”
Would the president have any right to appeal?
Not really. Federal courts, leery of the Constitution’s unqualified delegations of impeachment and removal authority to the House and Senate, have been pretty reluctant to meddle in the process. In Nixon v. United States, for example, the Supreme Court considered federal judge Walter Nixon’s challenge to his removal after a committee of senators, not the entire Senate, heard the evidence against him and then reported back to the full chamber. But the way the Senate decides to conduct its business, the Court decided, is a political question, not a legal one, which meant the Court couldn’t help Nixon any further.
In other words: If Trump doesn’t like how this all ends, his only recourse will be complaining on Twitter.
Matt Gaetz is a 35-year-old freshmen Congressman pursuing a risky new gameplan for getting ahead in Washington: Be just like Trump. He's courting controversy, becoming a fixture on FOX, and proving that the only real sin in politics these days is being boring. Has the rookie lawmaker found himself a shortcut to the top—or doomed himself from the start?
Originally Appeared on GQ