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Could a President Hillary Clinton Be Impeached Over Her Emails?

Posted on Feb 9, 2016

By Bill Blum

  Democratic presidential candidate Hillary Clinton campaigns outside a polling place during the first-in-the-nation presidential primary on Tuesday in Manchester, N.H. (Matt Rourke / AP)

If Hillary Clinton is elected president, could her slow-bleeding email scandal lead to her impeachment?

The question has been percolating in right-wing circles since last October, when Republican Congressman Mo Brooks of Alabama broached the subject in an interview with conservative talk-radio host Matt Murphy. If Clinton makes it to the White House, Brooks declared in no uncertain terms, “the day she’s sworn in is the day that she’s subject to impeachment because she has committed high crimes and misdemeanors” arising from her use of a private email server to discuss matters of national security during her tenure as secretary of state.

Ordinarily, I would accord Mo Brooks no more credibility than Moe Howard of Three Stooges fame.

Brooks is one of the most outspoken and, often, zany conservatives in the House. He opposes Obamacare, abortion and stem cell research and wants to defund Planned Parenthood and NPR. He has signed Grover Norquist’s Taxpayer Protection Pledge, believes Democrats have promoted a “war on whites” and has openly called for President Obama to be jailed over his executive orders on immigration.

In the world of mainstream punditry, Brooks is also regarded as something of a buffoon, not to be taken seriously.

Within days of the congressman’s impeachment comments, reporter Philip Bump, writing in The Washington Post’s The Fix blog, attempted both to lampoon Brooks and school him on the finer points of constitutional law. In language no less confident than that used by Brooks on the radio, Bump invoked the House’s 1873 impeachment investigation of Vice President Schuyler Colfax to advance the notion that federal officials cannot be impeached and removed from their current offices for crimes committed before they have assumed those positions.

Colfax was accused of taking kickbacks in cash and discounted stock from the Union Pacific Railroad’s Crédit Mobilier subsidiary in exchange for votes while serving in the House during the 1860s. And although it’s true, as Bump argues, that the House Judiciary Committee dropped its impeachment probe mainly because Colfax’s improprieties occurred before his ascendancy to the executive branch, his case is but one episode in the tangled and often contradictory history of impeachment in America. The Colfax investigation by no means stands as a binding precedent.

Even a broken clock is right twice a day. And when it comes to impeachment, Brooks may just have stumbled onto something worthy of concern. To see if he has, let’s start with some impeachment basics:

As explained in a 2015 study, “Impeachment and Removal”, prepared by the nonpartisan Congressional Research Service (CRS), “The Constitution gives Congress the authority to impeach and remove the President, Vice President, and other federal ‘civil officers’ upon a determination that such officers have engaged in treason, bribery, or other high crimes and misdemeanors.”

The specific constitutional provisions involved are:

Article 1, Section 2, which invests the “sole Power of Impeachment” in the House;

Article II, Section 4, which sets forth the grounds of impeachment in the famous phrase, “Treason, Bribery, or other High Crimes and Misdemeanors”; and

Article I, Section 3, which stipulates, in part, that the Senate shall have the “sole Power to try all Impeachments” in proceedings presided over by the Chief Justice of the Supreme Court. The same provision instructs that those who are convicted by the Senate “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

As the CRS study stresses, it’s essential to keep in mind that “although the term ‘impeachment’ is commonly used to refer to the removal of a government official from office,” it actually refers to the accusatory process carried out by the two houses of Congress.

To quote the study further: “First, a simple majority of the House impeaches—or formally approves allegations of wrongdoing amounting to an impeachable offense, known as articles of impeachment. The articles of impeachment are then forwarded to the Senate where the second proceeding takes place: an impeachment trial. If the Senate, by vote of a two-thirds majority, convicts the official of the alleged offenses, the result is removal from office. …”

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