Calls for Impeachment – Article III Edition
In today’s climate, talks of impeachment are concerning President Trump; however, as recent news broke surrounding Justice Kavanaugh sexual allegations, the WTOP reports that the House Judiciary Committee is considering holding an impeachment hearing for Justice Kavanaugh.
On Saturday, September 14, the New York Times published an article identifying another man, Max Stier. Max Stier, a former Yale University attendee, substantiated some of the sexual assault allegations at the center of Kavanaugh’s Senate Confirmation Hearings in September 2018. Max Stier claims to be one of the twenty-five witnesses whom Deborah Ramirez—former Kavanaugh-accuser—provided to the FBI while conducting its investigation. Stier claimed he contacted the appropriate senators and FBI agent alleging witness to the events, but the senators and the FBI neglected to look into his claims.
Many are calling upon the “Impeachment of Justice Kavanaugh,” although the term Impeachment or “Impeached” is colloquially misconstrued. Impeachment is the formal process by which the U.S. House of Representatives files formal charges—Impeachment Papers—against a government official. Impeachment proceedings move from the filing process to the trial stage, where the official sits before the U.S. Senate. While sitting before the U.S. Senate, the Senate can decide to acquit or convict the official based on the Articles of Impeachment. Impeachment is permitted for treason, bribery, or “other high crimes or misdemeanors.” Other high crimes and misdemeanors, although not defined by the Constitution, has been broadly construed to include criminal and civil offenses. Although an official may have Impeachment proceedings against him (they are in the process of impeachment or have been impeached), the actual removal of the individual could or could not have happened.
Similar to President Clinton, Justice Kavanaugh may have Articles of Impeachment issued against him for committing “high Crimes or Misdemeanors.” In Clinton v. Jones, President Clinton, denied, under oath, that he had any sexual relations with Monica Lewinsky. Based on that statement, President Clinton’s Articles of Impeachment cited perjury and obstruction of justice in another trial. Similarly, Justice Kavanaugh’s potential Articles could cite perjury and obstruction of justice in his own confirmation hearing, specifically citing that he lied under oath when discussing the sexual assault allegations against him. Previous Articles have noted perjury as a high crime or misdemeanor, placing Justice Kavanaugh within the reach of the Impeachment Proceeding powers.
Only once before has a Supreme Court Justice been impeached. Justice Samuel Chase was impeached in 1804 for “extremely irregular and indecent behavior.” Although Justice Chase underwent the impeachment process, he was acquitted of all charges as the Senate failed to obtain the requisite two-thirds Senate vote. More recently, however, Judge Thomas Porteous, Jr. of the Eastern District of Louisiana was impeached on charges of accepting bribes and making false statements under penalty of perjury. Judge Porteous was found guilty and removed from office. Judge Porteous’ removal on perjury was predicated upon him lying during his judicial confirmation, a similar charge current House Representatives may consider filing against Justice Kavanaugh.
Additionally, Judge Samuel Kent of the Southern District of Texas was impeached on charges of sexual assault, obstructing and impeding an official proceeding, and making false and misleading statements. In July 2009, Judge Kent resigned from office prior to the Senate completing his trial. Specifically, Congress declared Judge Kent engaged in the following conduct: “Judge Kent sexually assaulted Cathy McBroom, by touching her private areas directly and through her clothing against her will and by attempting to cause her to engage in a sexual act with him.” The House could look to either Judge Porteous or Judge Kent to draft the Impeachment papers against Justice Kavanaugh for either (1) perjury and (2) sexual assault. Both having fallen within the “high Crimes or Misdemeanors” category in prior years.
If Impeachment Proceedings do attach to Kavanaugh, he may be required to sit out many oral arguments and be unable to contribute opinions to the Court. The lack of precedent in impeaching a Supreme Court Justice does not provide clear answers one way or the other. The remaining eight-Justice panel would effectively estop the conservative-leaning Court from ruling on important cases, such as: determining whether the Eighth and Fourteen Amendments permit a state to abolish the insanity defense in Kahler v Kansas, 410 P.3d 105 (Kan. 2018), cert. granted, (No. 18-1635); whether discrimination against an employee because of sexual orientation constituted prohibited employment discrimination “because of … sex” within the meaning of Title VII of the Civil Rights Act of 196 in Bostock v. Clayton County, Georgia, No. 17-12801, No. 1:16 (11th Cir. 2018), cert. granted, (No. 17-1618); and whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins in R.G. & G.R. Harris Funeral Homes v. EEOC Inc., 884 F.3d 560 (6th Cir. 2018), cert. granted, (No. 18-107).
On Tuesday, September 17, Senator Kamala Harris wrote a letter to Jerrold Nadler, Chairman of the House Committee on the Judiciary. Her call to arms invited a house task force to undergo Articles of Impeachment for Justice Kavanaugh. Senator Harris specifically requested more information on the FBI’s scope of investigation, information about supplemental FBI investigations, Justice Kavanaugh’s honesty during his senate confirmation process, and additional information that may have been provided in regards to the sexual assault allegations.
In the midst of a busy campaign season, democratic candidates who fight for initiating impeachment proceedings may gain leverage over their more silent candidates. For the 2017-2019 term, the House of Representatives seats 194 Democratic Representatives and 241 Republican Representatives; the Senate seats 47 Democratic Representatives and 51 Republican Representatives. After the 50-48 vote for proceeding with Kavanaugh’s Supreme Court Confirmation, it seems unlikely that the House of Representatives will come together and issue Articles of Impeachment in the next year or so. After the 2020 House of Representatives election, if the democrats can gain the majority, they could easily pass Impeachment Papers. An incredible factor to determine whether Justice Kavanaugh could be Impeached rests in the fate of the 2020 Senate election, where twelve Democratic seats and twenty-three Republican seats are up. The now Republican-majority could turn into a Democratic-majority, creating an avenue for the Senate to convict Kavanaugh on the Impeachment papers and remove him.