A note on American Presidential impeachment

President Trump has not been impeached.  The House has not begun an impeachment inquiry though Speaker Pelosi has announced that is the intention of the Democratic caucus.

Impeachment is a formal and constitutional process which has historically begun with a majority vote of the House of Representatives.

In the two impeachments in the modern era, Nixon and Clinton, the House voted at different stages of the investigation.

In Nixon’s case the House voted 410-4 to begin an impeachment inquiry.  The Judiciary Committee set up a special counsel which based much of its work on the Senate Watergate Committee, officially the Select Committee on Presidential Campaign Activities.  Headed by Senator Sam Ervin of North Carolina it had followed the lead of the FBI after burglary at the Democratic National Committee headquarters and conducted an investigation which eventually led the House to prepare Articles of Impeachment. Mr. Nixon resigned as the House was preparing to vote on the Articles.

For Clinton the Articles of Impeachment passed by the House and sent to the Senate for trial grew out of the investigations of Independent Counsel Ken Starr. The two Articles failed in the Senate on 45-55 and 50-50 votes, 67 being required for removal.

An impeachment is not like other Congressional investigations.  

Congress does not have police powers.  Hearings before Congress are not criminal investigations. Congress may subpoena, it cannot compel testimony.  If a witness or potential witness, government official or private citizen refuses to cooperate Congress can declare that person in contempt of Congress. Once cited the case may be referred to the Department of Justice for possible criminal charges. In practice those charges never happen.

Two Trump officials, Attorney General William Barr and Commerce Secretary Wilbur Ross have been held in contempt. In the Obama administration Attorney General Eric Holder and Lois Lerner the Director of Exempt Organizations at the Internal Revenue Service were held so by the House. None were prosecuted.

Until the House votes to officially begin an impeachment investigation and grants grand jury powers to the investigating body, any new investigation of the President begun under the authority and the vote of a single committee has no more power than a normal House procedure. Such an investigation would not have grand jury legal precedence. Its enforcement would be limited to contempt.   

An official impeachment inquiry passed by the entire House can grant grand jury powers including the ability to compel testimony, obtain documents and enforce subpoenas. The powers of a grand jury contain the force of criminal law and the inherent ability to prosecute if compliance is refused.  Independent Counsel Ken Starr under President Clinton and Special Counsel Robert Mueller under President Trump were granted such powers.

The difference between a normal Congressional investigation and an impeachment investigation is that the first cannot enforce its requests and the second can. 

Only one, impeachment can bring the police and legal power of the state to bear on its witnesses. It is the difference between a polite request from a crossing guard and the order of a judge backed by the armed officers of the court.

The impeachment investigation of a president is monumental political act. It begins with a majority vote of the House of Representatives.