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Congress could use Congressional nullification to impeach a president who did not violate the law

Posted by John T. Reed on

I was just researching my How to Spot Dishonest Arguments book when I reconsidered impeachment. I had recently researched that topic for my Unelected President novel. Maxine Waters says, as Gerald Ford once did, that “high crimes and misdemeanors,” two of the four grounds for impeachment, are anything the Congress says they are. (Treason and bribery are the other two grounds.)

Maxine is an idiot, apparently representing a district of idiots (LAX and the area east and southeast of it). But she and Ford might be right in one sense.

‘High crimes and misdemeanors’

The phrase “high crimes and misdemeanors” was taken by the Founders from Olde English law. That means it is defined as it was then. It is not a blank check which Congress can fill in any way they like. Vague laws are unconstitutional, but a vague clause IN the Constitution can only be overruled if the matter in question can be appealed to the Supreme Court. Impeachment convictions canNOT be appealed to the courts. That means the trial entities can nullify the law with impunity.


In jury trials, the jury can engage in what is called “jury nullification.” That is the jury illegally ignoring the law. But jurors cannot be punished for that unless they were bribed. In civil cases, there is such a thing as a “judgment notwithstanding the verdict,” where the judge overturns an unreasonable jury verdict. But in criminal cases, the court can only overturn guilty verdicts on that basis. The vast majority of apparent jury nullifications are not-guilty verdicts when the law said the accused was guilty.

Congressional nullification only possible in impeachments

So could there be such a thing as Congressional nullification where the House majority impeaches and the Senate two-thirds majority convicts in spite of the fact that the accused was not guilty of treason, bribery, or other high crimes or misdemeanors? Yes. 

And can the convicted president or other elected official appeal to the Supreme court or the Chief Justice whom the Constitution says presides over the impeachment trial in the Supreme Court—in other words, ask for a not-guilty judgment notwithstanding the verdict? Nope. 

No judiciary oversight of impeachment

Article 1, Section 2 of the Constitution has the clause…

“The House of Representatives shall chuse [sic] their Speaker and other Officers; and shall have the sole Power of Impeachment.”
Article 1, Section 3 has the clause…
“The Senate shall have the SOLE Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.”

Note the word “sole.” It means SCOTUS cannot overturn an impeachment conviction. Impeachment is a power granted solely to Congress.

Not allowed but no one can stop or overturn it

So although the Constitution does not give Congress a blank check to impeach, there is no practical way to stop them from nullifying the Constitution impeachment clause by abusing the impeachment power. Only the voters can punish their own Representative or Senator for abuse of impeachment power. They could then also re-elect the impeached president at the next election if he or she was not prohibited by term limits from running again.

Just promotes the vice-president

And it must be noted that impeachment of the President does not make the loser in the last election, e.g., Hillary, or some other member of the loser’s party the new president. All an impeachment conviction or 25th Amendment removal for inability to carry out his duties does is make the CURRENT VICE-PRESIDENT president. If there is no vice-president for some reason, impeachment would make the Speaker of the House President. That would be most likely if both houses of Congress were controlled by the party not in the Oval Office.

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