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In the United Kingdom the Prime Minister (broadly equivalent to the US President although the PM is not head of state) has to stand down if the government loses a vote of "no confidence" in the House of Commons (lower house of the legislature).

There could be many reasons for a "no confidence" vote. The PM might have done something disreputable or it might just be that the majority no longer support the PM's political policies and programme. Because it is relatively easy to get rid of a PM there is no need to consider impeachment (the last impeachment was over 200 years ago I believe).

In the US, lack of support by the legislature does not affect the tenure of the president - only impeachment has that effect.

My question is about the nature of impeachment in the US and how it looks to US lawyers. To a lawyer in the UK there is nothing unusual per se about a president/PM losing office because of a political vote by the legislature, but what looks very odd to many lawyers in the UK is that the impeachment process looks like a legal process but the normal standards of logic, of defining what has to be proved and then proving it, don't seem to apply. I'm not talking here about the vote on whether to impeach being split on largely party lines but the actual process before the vote. The lawyers in the proceedings look as if they are not behaving and arguing like lawyers.

How does this look to US lawyers? Does it look odd to you?

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  • Your premise is not strictly speaking correct. The expectation that a government (and hence the PM) stands down following a no-confidence vote is a matter of convention but is not legally binding. Section 2 of the Fixed-term Parliaments Act 2011 introduced a statutory no confidence motion, but that only requires an early general election to be held and (importantly) on a day decided by the PM. It doesn't force the PM to stand down.
    – JBentley
    Oct 14 at 13:23
  • You are right about the FTPA but that was an anomaly which is being repealed. I was referring to the traditional position which existed before the FTPA which will be again be the position when the FTPA is repealed. The more general point (which applies even under the FTPA) is that impeachment is unnecessary because there are easier ways of getting rid of a PM.
    – Nemo
    Oct 14 at 17:25
  • Interesting that the FTPA is being repealed; I hadn't heard that. Do you have a source? Note that the convention and the FTPA exist separately from one another and operate slightly differently. I.e. there is no need to wait for repeal for the convention to still apply. My main point was that the convention isn't a binding mechanism. A PM is free to ignore it. Indeed conventions evolve over time and are often ignored, especially in recent decades.
    – JBentley
    Oct 14 at 20:39
  • Will be repealed by Dissolution and Calling of Parliament Bill bills.parliament.uk/bills/2859
    – Nemo
    Oct 14 at 20:49
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While I am not a lawyer, this is fairly well settled in US constitutional theory. The framers thought of impeachment is something very much like a legal process, which is shown, among other things by the procedure in the Senate being referred to in the Constitution as a "trial" and a vote to remove being described as a "conviction". The use of the term "High Crimes and Misdemeanors" also suggests a legal process.

In The Federalist, Hamilton took the view that the trial was to determine "guilt or innocence", but would be inherently political.[A]

But there is no supervising authority, and the Congress (and each house of it) is a very political body. Procedures for drafting and passing Articles of impeachment in the House are whatever the House chooses them to be on each particular occasion. Procedures and rules of evidence in a Senate trail are whatever the Senate chooses them to be on each occasion. There is no standard format which is binding, or even customary. Thus in practice an impeachment will be a political issue whenever the Congress treats it as one.

Early in the history of the US there was an opinion among some legislators and politicians that an impeachment was simply a statement that "we want your offices to give them to better men"[B], suggesting that it be treated much like a vote of no-confidence in the UK parliament. In the impeachment of Justice Chase the Senate did not vote to convict, and this was held to establish the principle that actual wrong-doing, not mere political dispute, must be the basis of any impeachment.

In the impeachments of Federal Judges, the procedure has been essentially legal, with accusations of actual crime, such as bribery or malfeasance in office, being the basis of impeachments, and Senate trials being quite similar to criminal trials.

This was perhaps particularly apparent in the impeachment and trial of Justice Chase.

The articles of impeachment drafted in the case of president Nixon also looked very much like an indictment for ordinary crime. The trial never took place, but discussions of its format at the tiem suggested that it would have also been somewhat like a criminal trial.

But the impeachments and trials of Presidents Clinton and Trump had a much more political aspect to them. While accusations were made of actions alleged to be not just politically unacceptable but unlawful, the Senate essentially inquired not into the truth of the accusations, but into whether they were improprieties deserving of removal at all. This was essentially a political, not a legal decision, and was made in a quite partisan way in each case.

The US Supreme Court has held that it has no authority to approve or disapprove the outcome of any impeachment proceeding (not does any other federal court). An "impeachable offense" is whatever the House choose to list in an Article of Impeachment, and a "removable offense" is whatever the Senate chooses to vote for removal on the basis of.

Thus those preparing proposed articles or advocating them in a Senate trial will be as legalistic or political as they think the occasion demands.

Notes and sources

The Federalist on Impeachment

[A] Essay number 65 of The Federalist (by Alexander Hamilton) begins:

THE remaining powers which the plan of the convention allots to the Senate, in a distinct capacity, are comprised in their participation with the executive in the appointment to offices, and in their judicial character as a court for the trial of impeachments. As in the business of appointments the executive will be the principal agent, the provisions relating to it will most properly be discussed in the examination of that department. We will, therefore, conclude this head with a view of the judicial character of the Senate.

A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.

...

What, it may be asked, is the true spirit of the institution itself? Is it not designed as a method of NATIONAL INQUEST into the conduct of public men? If this be the design of it, who can so properly be the inquisitors for the nation as the representatives of the nation themselves?

It seems that Hamilton's ideal was that of a legal proceeding, a court, which was to determine "guilt or innocence". But he was well aware of th importance that political factors (and factions) might assume in any impeachment trial, and regarded this as inherent in the nature of such a proceeding. Most constitutional scholars seem to have followed this line of thought.

Giles

[B] Senator William Branch Giles, leader of the Senate forces favorable to the Administration of President Jefferson, is reported by John Quincy Adams to have said:

Impeachment was not a criminal prosecution ... and a removal by impeachment was nothing more than a declaration by Congress to this effect: "You hold dangerous opinions, and if you are suffered to carry them into effect, you will work the destruction of the Union. We want your offices for the purposes of giving them to men who will fill them better."

quoted from Memoirs of John Quincy Adams (J.P.Ipperncot & Co; 1874) Volume 1, page 322; quoted in Grand Inquests By Chief Justice William H. Rehnquist (William Morrow & Co; 1993) page 27 (Chapter 1)

The Wikipedia article on Giles (linked above) says:

Giles strongly advocated the removal of Justice Samuel Chase after his impeachment, urging the Senate to consider it as a political decision (as to whether the people of the United States should have confidence in Chase) rather than as a trial.

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This is also because of the fact that the U.S. and U.K. have different structures about who is the Head of Government. In the U.K. the head of the executive branch of government (AKA, the people who enforce the laws that were passed by the legislature, AKA the Head of Government.) is also the leader of the lower house (where it exists) legislative body. In the U.S., the leader of the lower house of the legislature does not hold this power, but rather the Head of State, the President (the U.K. head of state is the queen).

This was done because both Parliment's House of Commons and Congress's House of Representatives were made of popularly elected legislators from a small locality of constituency, while the Upper Houses (House of Lords and the Senate) are chosen by other means (The House of Lords were made up of Nobility, while the Senate was originally elected by State governments, but has since been changed to State Wide popular vote). Like the House of Commons, the person who is the head of the lower house is nominated among the parties and elected by member vote... should he or she do a poor job the lower houses on both sides of the pond can remove them from this position on their own initiative. But since the U.S.'s Speaker of the House has little legal power to do much other than bring bills to a vote and administer House of Rep's buisness, there's little fanfare when this happens (if it ever has... I don't really know if it's never happened, but it's not as historically significant as an impeachment if it has). In fact, because the Constitution has specific rules that allow both houses to expel members, the need for both votes of no-confidence votes, snap elections, and even impeachment of legislators is legally not needed.

But since the U.S. Head of Government isn't part of the legislature, the ability to check the office's power had to use another method (impeachment) which has the same functions of no confidence in removing the head of government if successful, but requires a court like trial (The Senate is officially titled "The High Court of Impeachment" as it is the court of first and last resort in impeachment... In theory the U.S. Supreme court could over turn them, but it would have to be a question of interpreting the constitution.). Impeachment also serves to remove bad judges and cabinet officials, though the later serve at the pleasure of the president and are much more likely to be removed because they no longer pleased the president than by failing to please Congress... and most get "asked" to resign when Congress is getting ready to impeach them. To Date, no member of the executive branch of government has been successfully convicted of impeachable offenses.

The founding fathers of the United States had some problems with the way the British were handling the situation leading up to the Revolution. In the aftermath of that, the Constitution was written to serve two purposes: First was to correct for the mistakes of the original "constitutional document, the Articles of Confederation" which were rather ad hoc and worked for the Revolution governance, but not the new nation's provisional government. The other reason was to fix the systems of British Parliament's that problem in the first place (The Founders were really bitter... to the point that Ben Franklin proposed that the national language be changed to German and the reason U.S. Elections take place on Tuesdays rather than Thursdays was because that's when the British held elections... it was hilariously petty at times). This is evident in the fact that they even wrote a constitution to begin with (while constitutions were a thing in Europe, at the time no independent nation had a governing constitution that set the limits of government power... and doing so wouldn't become popular until after the 2nd World War... to this day, the U.K is one of two democratic nations without a codified constitution.). Other evidence in the constitution preventing of British abuses of from the colonial period can be found in the Bill of Rights, as nearly all of these were written to address some grievance listed in the Declaration of Independence, which when you get past the famous opening, is a list of the reasons the revolutionaries gave for why they wanted Independence.

And while the Declaration listed these as actions King George III did, the King's hand in it was really giving Royal Ascent. It was Parliament that wrote, passed, and enforced everything the American's hated. King George was just an easy personification of the concept that was so offensive: People who did not have a stake in the realities of the law were permitted to make the law without the input of the people that did have a stake in the law... that is Taxation without Representation.

Americans didn't hate the concept of Monarchy as the propaganda of the time contended... they hated Parliament as a broken system and wanted no part in it's failings.

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  • This doesn't really answer the specific question here. Oct 12 at 19:11

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