As the United States wades into its third presidential impeachment in just over 40 years, there’s a lot of uncertainty over how exactly it will play out.
To get a clearer picture, it’s important to understand the workings of the impeachment process, how long that process might take, how broad or narrow the focus of impeachment could be, and whether there might ultimately be enough votes to remove President Donald Trump from office in the Republican-controlled Senate.
The House: Investigation
The first step in the impeachment process is an investigation by House committees into what if any impeachable offenses a president has committed.
That’s where we are today as Speaker of the House Nancy Pelosi announced the House of Representatives would begin a formal impeachment inquiry on September 24.
The announcement came after reports that a whistleblower is alleging Trump withheld aid to Ukraine and requested their government investigate the son of one of his top political rivals, Former Vice President Joe Biden.
Once the committees in the House complete their investigation, the findings are submitted to the House Judiciary Committee for review, where they will rule on whether there is sufficient evidence to move forward with a floor vote on impeachment.
This process is likely to take about five or six weeks, Margaret Taylor, a senior editor at Lawfare, said during a Brookings Institution panel discussion on Monday.
“But we don’t know how the momentum of the narrative is going to unfold,” she added.
The House: Impeachment
If 218 or more House members vote affirmatively based on the Judiciary Committees’ findings, the president is impeached and the process moves to the Senate for an impeachment trial.
At the moment, that appears to be a likely scenario as a majority of House members currently support impeachment. This includes 223 Democrats and one independent, Rep. Justin Amash who left the Republican party earlier this year after calling for impeachment. So far, no other Republican member has expressed support for impeachment.
Before the impeachment inquiry began, it was not clear in polling that a majority of the American public was supportive of impeachment. But since last week, support has ticked up in a number of polls. One Morning Consult Poll saw support for impeachment rise from 36 to 43 percent while support rose from 49 to 55 percent in a recent YouGov Poll.
“We don’t know if there are more shoes to drop or if more will be uncovered,” Taylor said. “It’s going to have to be – for House Democrats – a process of really calibrating and understanding where they are, what is yet to be explored, and when they need to cut the rope, take the vote, and send it to the Senate in the most powerful way.”
The Senate: Acquittal or Conviction
Impeachment in the House is akin to an indictment. The Senate essentially acts as the jurors in a trial where they vote either to convict or acquit the president.
For Democrats hoping to remove Trump, this process will be much more difficult for two reasons. First, unlike the House where only a simple majority is required to impeach, at least two-thirds of the Senate – or 67 senators – must vote yes in order to convict the president. Second, Republican senators outnumber Democrats and Indepedents 53 to 47.
If the Senate can’t reach the 67-vote threshold, the president is acquitted and remains in office until at least the next election.
Assuming all 45 Democratic senators and both independent senators vote to remove Trump from office, that leaves them 20 votes short.
Even if Republicans like Mitt Romney and Ben Sasse defect from their caucus and vote against the president, the two-thirds threshold, intense partisan division, and a GOP majority give Trump a distinct advantage should the Senate hold an impeachment trial.
While political commentators like Kyle Kulinski of Secular Talk have said there is a “zero percent chance” that 67 senators vote to remove Trump from office, Deputy Director of the Center for Effective Public Management, John Hudak, suggested otherwise during the Brookings Institute panel.
Citing Nixon’s landslide victory in 1972 and much higher approval ratings than even President Trump’s best numbers, Hudak said people would have laughed in the face of anyone who said Nixon would be out of office within two years on election day 1972.
“But alas, the evidence was built, the tapes came out, and movement happened within the Republican conference within the Senate,” Hudak said. “This idea that nothing will come out that will move a Republican senator towards voting to convict the president, I think is foolish.”
How Broad Should Articles of Impeachment Be?
An area of conflict within the House Democratic Caucus is just how broad the impeachment inquiry against Trump should be.
Freshman Congresswoman Rashida Tlaib has been an early and consistent supporter of impeaching Trump. After being elected in 2018, she famously said “impeach the motherfucker” at her victory celebration and penned an op-ed earlier this year laying out her case.
For Tlaib, the recent emergence of the Ukraine scandal only adds to a long list of reasons to impeach, ranging from charges of obstruction of justice and emoluments violations to abuse of pardon power and incitement of violence.
More moderate House Democrats, including leadership, are reportedly seeking to narrow the scope of the inquiry to only Trump’s dealings with the Ukrainian president.
On one hand, limiting the scope of impeachment too narrowly could set a precedent for future presidents that there won’t be accountability for certain offenses. On the other, too broad of an inquiry could give off the appearance of an unfocused and brazenly political inquiry, as opposed to one driven by genuine principles of lawfulness.
It’s a delicate balancing act, but Lawfare Contributor Susan Hennessey, who also spoke with the Brookings Institute panel, listed two criteria for articles of impeachment: “unambiguously impeachable conduct” and “unambiguously strong evidence.”
Hennessey said she believes obstruction of justice, abuse of foreign policy powers, inviting foreign interference in an election, targeting political opponents in investigations, lies to the American public, and obstruction of Congress are examples of offenses allegedly committed by Trump that would meet those two criteria.