The I Word

In an early scene in my upcoming novel Affairs of State, federal judge Edward Lamport testifies before the House Task Force on Judicial Impeachment. Judge Lamport had stepped outside the law to save his son’s life, and in the process helped uncover deep corruption in all three branches of government.

The resulting crisis of confidence has swept Lamport into a wave of political retribution led by an opportunistic Speaker of the House and a powerful Southern California congressman. Their ambitions are deep and wide. The drive to remove Lamport is the first of many such campaigns, and their ultimate aim is the White House.

Impeachment is intended to be the check and balance of last resort Congress can deploy against the other two branches. And it is an inherently political, not judicial, process.

The Constitution does not expressly state that the impeachment clauses apply to federal judges, but the language of “civil officers” has been consistently interpreted to include them.

In our nation’s 241-year history, fifteen federal judges have been impeached by the House of Representatives. Of those, eight were convicted by the Senate, four were acquitted by the Senate, and three resigned before an outcome at trial. Only two U.S. presidents have been successfully impeached, Andrew Jackson and Bill Clinton, and both were acquitted by the Senate. Articles of impeachment were drafted against Richard Nixon, but he resigned before that process was completed.

The Senate has no objective standard of proof for determining whether the person impeached by the House is guilty or not guilty.

Two thirds of Senators who participate in an impeachment trial (only a quorum is required) must vote to convict in order for a judge or president to be removed from office. One fact of the process stood head and shoulders above the rest in my research: the Senate has no objective standard of proof for determining whether the person impeached by the House is guilty or not guilty. In contrast, for juries in criminal trials the standard is “beyond a reasonable doubt.” In civil litigation it’s “preponderance of evidence.”

Senators, who serve as both judge and jury in impeachment trials, may apply whatever standard of proof their conscience allows.

In today’s highly polarized political environment, it’s hard to conceive that a majority party would vote to convict one of their own unless the evidence of wrongdoing were overwhelming and/or the political cost of not convicting was deemed too high.

In Affairs of State, that’s exactly what happens. Imagine the possibilities…