17

Surrounding the Impeachment trial of President Trump many news outlets have voiced that an acquittal will be setting precedent.

Does this mean that subsequent presidents will be able to do the same things and cite precedent without fear of retribution?

Is there any legal standing to setting precedent? Could President A set precedent with something and then President B could do the same thing and be impeached for doing that same exact thing?

I'm a bit confused how setting precedent holds any legal value.

1
  • 2
    "But he did unto me first."
    – Joshua
    Feb 3 '20 at 5:26
27

It should be noted, first of all, that impeachment is a political process and not a legal one. This means that the precedent argument is not as strong as it would be in, for example, a Supreme Court case.

In a legal case, a large part of a court's job is to interpret the meaning of a law. When a court makes a determination of the meaning of a law, then other courts are expected to apply the same meaning of a law to maintain consistency across the legal system. After all, if different courts apply the same law in different ways, it would become very confusing as to what a law actually means. This is unless or until a higher court rejects this interpretation on appeal, or legislation is passed to invalidate such an interpretation.

Meanwhile, one Congress cannot bind any of its successor Congresses. They are under no obligation to look at precedent as they decide whether or not to impeach/convict.

10
  • 12
    This answer would be better with a sentence or two pointing out how a precedent argument in a subsequent impeachment trial might play out.
    – phoog
    Feb 2 '20 at 21:36
  • 2
    @phoog That is something that we cannot know, as it is a political process rather than a legal one.
    – Joe C
    Feb 3 '20 at 6:52
  • 1
    @JoeC We've had presidential impeachment trials before - knowing how the precedents for previous ones would affect later ones is not an impossible thing.
    – Zibbobz
    Feb 3 '20 at 14:19
  • +1, but "other courts are generally expected ..." is not really accurate. Lower courts are obliged to apply decisions of higher courts.
    – JBentley
    Feb 3 '20 at 14:28
  • 2
    I think this need to come back to discussing impeachment to answer the question. In its current state, it's a discussion of legal precedent not really political precedent.
    – bob
    Feb 3 '20 at 16:13
24

Could President A set precedent with something and then President B could do the same thing and be impeached for doing that same exact thing?

Yes, absolutely. It is usually understood that Congress can impeach and remove a president for anything it deems official misconduct (so-called "high crimes and misdemeanors"). What Congress deems official misconduct can change from election to election (or minute to minute).

5

Of course, it's not a matter of black letter law. But assuming a partisan situation, Democrats are unlikely to try and impeach another president for similar behavior, because they know the Republicans won't assist. (And if the Republicans do assist, it will make this impeachment look worse for them.) Any Republican trying to impeach a president for similar behavior will know the Democrats can simply quote their own words back at them, and will know that the Republicans are being grossly hypocritical. If the Republicans did have the power to force it through, it's going to get ugly, since that's clearly stating that impeachment is not about "high crimes", it's about who has the power.

(There is a note that Senate Majority Leader Mitch McConnell did have his words quoted back at him; it's also worth noting that he's polling quite a bit worse than the partisan lean of his state, Kentucky, especially surprising for a long-term Congressional member with power in Congress.)

Congress could pass laws against similar "quid pro quo", and then try and enforce those laws through impeachment, like was done against Johnson. But until if and when they do so, it's hard to imagine that something like this could be used for impeachment.

10
  • 12
    Since when does being judged as grossly hypocritical affect any politician? Quotes were thrown around dating from the Clinton impeachment and they had no effect on any politician so far as I can tell.
    – doneal24
    Feb 3 '20 at 15:58
  • 2
    Also, if it was purely political, and normal (as "since when" implies), why has Trump been but the third president to be impeached? In recent history, 1947-1949, 1995-2001, 2015-2017 we had a Democratic president and Republican house and senate, with Clinton. Between 1955-1961, 1969-1977, 1987-1993, and 2007-2009, we had a Republican president and Democratic house and senate, with Nixon (who wasn't impeached). Why those three presidents, especially when Trump held a majority in the Senate, and the rare modern times where one party has had 2/3rds of the Senate have been with the president?
    – prosfilaes
    Feb 3 '20 at 21:21
  • 2
    @prosfilaes There's a political cost to impeachment, particularly when the impeachment has the appearance of political motivation. When you try to undo the results of an election, it can come back to bite you in your own next election. But U.S. politics has become so polarized - and there's such a visceral hate of Trump in particular - that a lot of Democrats were wanting to impeach him with no actual evidence of anything before he even set foot in office and then campaigned on it in the next election. The desire to impeach him long predated any actual evidence of wrongdoing.
    – reirab
    Feb 3 '20 at 23:32
  • 2
    @prosfilaes Going back to your analogy of criminal trials, if you start acquiring evidence that should require a warrant in a criminal trial before you have actual probable cause, then that evidence gets thrown out in court, even if it shows evidence beyond the shadow of a doubt that you committed a crime. You can't just go on a fishing expedition because you don't like someone and then prosecute them if you find something. See fruit of the poisonous tree. To a lot of people who have been watching since 2016, this feels like that.
    – reirab
    Feb 3 '20 at 23:35
  • 2
    @reirab those of us who've been following Trump for a few decades in his career in NY real estate know that he's slimy enough that anyone who looks closely will find damaging evidence. Why do you think he's avoided disclosing his tax returns? Why do you think he has sought to avoid having anyone from his administration testify? It's perfectly legal to go on a fishing expedition because you don't like someone and then prosecute them if you find something, as long as you don't violate the fourth amendment in doing it. But the fruit of the poisonous tree doctrine does not apply to impeachment.
    – phoog
    Feb 4 '20 at 0:30
2

Yes, they could be impeached, but it might be more difficult.

The grounds for impeachment and removal in the Constitution are very vague, and it's up to Congress to interpret them and decide whether they apply to the current President's actions.

In doing so, they often look at history for guidance. They review documents written by the framers of the Constition to understand their intent. And they look for similarities in past impeachment proceedings. For example, a significant portion of the arguments made on both sides in the Trump impeachment cited analogies with previous impeachments (not just of Presidents, since there have been so few, but also the many judicial impeachments).

So while they're not legally bound by precedents, they can provide compelling arguments.

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .