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Impeachment rules and precedents for House Democrats as they move forward

It is inevitable that House Democrats will impeach the president of the United States. Once Democrats set themselves on this course, there really was no turning back. But to get the president convicted, they will have to bring their closed door process into the open.

House procedure has been fairly consistent in the modern era. A formal resolution passes the House, which then forwards the resolution to the House Judiciary Committee. That committee investigates the matter, develops articles of impeachment, then delivers them to the House for a vote.

With Richard Nixon’s aborted impeachment, the House began as it is doing now. A committee, in that case the Judiciary Committee and in this case the Intelligence Committee, established an impeachment inquiry behind closed doors to accumulate evidence and depose witnesses. What Republicans are complaining about as a secret process right now is exactly what the House has done repeatedly. You can oppose the process, but the reality is there is historic precedent.

What must then happen is also precedent. In every impeachment process going back to Nixon, the investigating committee drafted a formal resolution for impeachment that the House voted on. The depositions, documents and other evidence accumulated behind closed doors, like in a grand jury, were then made public and available to the person being impeached, while the House Judiciary Committee then drafted articles of impeachment.

This happened with Presidents Nixon and Bill Clinton and federal judges Walter Nixon, Alcee Hastings, Samuel Kent and Thomas Porteous in just the last few decades. Should articles of impeachment be drafted, the House of Representatives will vote on them and forward them to the Senate.

Senators will sit as jurors. The House will send over impeachment managers who will prosecute the case before the Senate with Chief Justice John Roberts presiding as the judge. Senators will sit six days a week beginning at noon until around 6 in the evening until the trial concludes. They will then deliberate behind closed doors and vote publicly.

A senior Democrat staffer tells me that there is no way the House can be wrapped up by Thanksgiving. Ideally, they will wrap up the closed door portion by Thanksgiving and then spend the rest of the year in the public, formal process. A Senate trial would be in January. Senate rules prohibit the Senate from just dismissing it. There must be a trial. That puts Democrats running for president in an awkward position. As the Iowa caucuses approach, the Senate Democrats would be forced to sit as jurors and the Senate could compel their attendance just as a court can compel a juror to be present.

This all puts Georgia Sen. Johnny Isakson in an interesting spot. Isakson is supposed to step down at the end of the year. But with an impeachment trial headed towards the Senate, it would be interesting if Isakson decided to stay. Doing so would avoid having to put a new Republican on defense over what he will do. Isakson would, as his last act, be sparing his successor a very difficult issue.

For Republicans claiming the President’s behavior with Ukraine is not criminal, they need to be advised that more than two-thirds of impeachments have focused on abuse of power, not statutory crimes. The very first impeachment, considered in 1797 with some of the drafters of the constitution sitting in Congress, focused on an abuse of power that was not a crime. Nixon’s impeachment focused on the president pressuring others to investigate a rival. Sound familiar?

Erick Erickson is host of “The Erick Erickson Show “heard statewide in Georgia.

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