To impeach, or not to impeach: that is the question of privilege

On July 13, two House Republicans, Reps. John Fleming of Louisiana and Tim Huelskamp of Kansas introduced a resolution to impeach IRS Commissioner John Koskinen on grounds he obstructed a congressional inquiry into the agency’s targeting of conservative groups’ tax exempt status.  Under House rules and precedents, impeachment resolutions raise a question of the House’s constitutional privileges, and that makes them eligible for special floor consideration.

The Members and their cohorts in the conservative Freedom Caucus have been pressuring Speaker Paul Ryan to schedule a vote on the resolution this month, threatening to force a debate and vote on it themselves if he does not.  Under House Rules, a question of privilege resolution, if ruled legitimate by the Speaker, can be called up immediately if offered by the majority or minority leaders.  If it is offered by any other Member, the Speaker designates a time for its consideration within the next two days.  The resolution is debatable for one hour, divided equally between the proponent and the majority or minority leader, or a designee determined by the Speaker. 

{mosads}The issue is tentatively scheduled for discussion in the House Republican Conference this Thursday.  Thus far the GOP leadership has opposed considering the impeachment resolution on grounds it is a needless distraction that could adversely affect Republican candidates in November –especially when the party’s presidential nominee is already considered by some to be a drag on down-ballot races.  (Coincidentally, Huelskamp lost his Aug. 2 primary to a more moderate Republican.)

Every impeachment resolution that has passed the House has been preceded by a Judiciary Committee inquiry and recommendation.  In the case of U.S. District Court Judge Harold Louderback in 1933, the Judiciary Committee recommended censure instead of impeachment.  However, a minority of committee members called up an impeachment resolution anyway.  The House adopted all five articles, though Louderback was subsequently acquitted at trial in the Senate. 

There have been over 60 attempted impeachments in the House, but only 17 have passed: one, later judged to be improper, of a senator; two of presidents (Andrew Johnson and Bill Clinton); one of a cabinet member, Secretary of War William Belknap in 1876; and the rest of federal judges.  There have only been seven convictions in the Senate, all judges. 

The proposed impeachment of a subcabinet official, if successful, would be the first of its kind, though other attempts have been made.  In 1978, for instance, a resolution to impeach U.N. Ambassador Andrew Young was called up as privileged and tabled on a 293 to 82 vote. 

Rep. Jason Chaffetz (R-Utah), chairman of the House Committee on Oversight and Government Reform, introduced an impeachment resolution of the IRS commissioner in October of last year.  When the leadership indicated its opposition, Chaffetz subsequently introduced a resolution “condemning and censuring” Koskinen in May.  His committee dutifully reported it on a party-line vote in June.

Under House rules, a resolution of censure is not privileged for floor consideration so could only be called-up by unanimous consent, a special rule from the Rules Committee or under suspension of the rules.  It is also clear from several House precedents that the text of a resolution of censure cannot be offered as a substitute for an impeachment resolution –something House Democrats tried unsuccessfully to do with the Clinton impeachment resolution in 1999.

If and when the Fleming-Huelskamp impeachment resolution is called up, it may be subject either to a tabling or referral motion.  If, on the other hand, the resolution passes, the House formally notifies the Senate of its action, and, under the Senate’s “Rules of Procedure and Practice…When Sitting on Impeachment Trials,” the Senate responds that it is “ready to receive the mangers for the purpose of exhibiting such articles….”   The rules go on to provide that at 1 o’clock on the day following such presentation of the articles by the House, the Senate shall “proceed to the consideration of such articles…until final judgment shall be rendered….”

Of course, the Senate always has the constitutional right to change its rules at any time, as it did for the Clinton impeachment trial by adopting an abbreviated trial format.  For instance, instead of calling witnesses to testify before the Senate, it watched excerpts from videotaped depositions.  It could also entertain a motion, like that offered by Sen. Robert Byrd (W.Va.) at the Clinton trial, to dismiss the articles of impeachment as being without merit (the motion failed).  Or, as happened at the impeachment trial of President Andrew Johnson, after three of the eleven articles of impeachment fell one vote short of the two-thirds necessary for conviction, the Senate adopted a motion to adjourn the trial sine die.

Ironically, Freedom Caucus members have been among the strongest advocates in the House Republican Conference for restoring regular order and constitutional governance.  Calling up an impeachment resolution from the floor without the benefit of a full Judiciary Committee inquiry, report and recommendation would not only throw the regular order out the window, but the constitutional right to due process as well. 

Don Wolfensberger is a fellow at the Woodrow Wilson Center and the Bipartisan Policy Center, and former staff director of the House Rules Committee.  The views expressed are solely his own. 

The views expressed by authors are their own and not the views of The Hill.