Impeachment might not be what you think it is

ByJohn Brown

I’ve come to realize I didn’t understand the process of impeachment and the standards by which it is conducted. Here are a few key things I’m betting most of us didn’t know. Some of them will surprise you.  

First, the process has three steps:

  1. The Congress starts an investigation, which can be conducted by any part of that body—the House, Senate, a special counsel, etc.
  2. The House leadership decides on whether to vote on “articles of impeachment.” The articles need only a simple majority to pass. If they do pass, the person is impeached. However, the articles of impeachment are not a conviction; they are a formal allegation of wrongdoing. The analog to this in the criminal justice system is an indictment.
  3. The Senate then holds a trial to decide if the allegations are true with both sides bringing witnesses, evidence, cross-examination, etc. The chief justice presides when the president is impeached. If two-thirds of the senators deem the allegations true, then the person is convicted and removed from office and may be barred from holding future positions. If the super majority isn’t reached, the person is acquitted of the charges.

There are two big questions in all of this. First, what standard of proof is used for passing the articles and then convicting the person of the allegations?

It appears that the standard of proof required for impeachment and conviction is left to the discretion of each individual representative and senator. There is no standard defined. So while some may use the standard of beyond a reasonable doubt, others may not.

Second, what can someone be impeached for?

According to the constitution they can be impeached for “Treason, Bribery, or other high Crimes and Misdemeanors.” However, the phrase “high Crimes and Misdemeanors” is not defined in the Constitution itself. 

The most authoritative explanation of what “high crimes and misdemeanors” are appears to be a document written by the staff of the House Judiciary Committee. The latest version of this was written in 2015 and is called “Impeachment and Removal.”

According to the Wikipedia article on impeachment, “While this document is only staff recommendation, as a practical matter, today it is probably the single most influential definition of “high Crimes and Misdemeanors.””

A key take away from that house committee report is that not all crimes are impeachable offenses and not all impeachable offenses are crimes. So what are grounds for impeachment? Well, it’s a bit vague.

In 1788, Alexander Hamilton argued in the Federalist Paper 65 that impeachment was for “the misconduct of public men, or in other words from the abuse or violation of some public trust.” The House Committee report expounds on that, including the following general grounds:

  • “Constitutional wrongs that subvert the structure of government, or undermine the integrity of office and even the Constitution itself”
  • “Abuse of the particular powers of government office or a violation of the “public trust””

The report goes on to say the following.

“Congressional materials have cautioned that the grounds for impeachment “do not all fit neatly and logically into categories” because the remedy of impeachment is intended to “reach a broad variety of conduct by officers that is both serious and incompatible with the duties of the office.” Nonetheless, congressional precedents reflect three broad types of conduct thought to constitute grounds for impeachment, although they should not be understood as exhaustive or binding: (1) improperly exceeding or abusing the powers of the office; (2) behavior incompatible with the function and purpose of the office; and (3) misusing the office for an improper purpose or for personal gain.”

But the report doesn’t give much definition beyond this, just a few examples of what individuals have been impeached for since the founding of the country. What does all of this mean?

I think the Wikipedia article sums it up well.

“Several commentators have suggested that Congress alone may decide for itself what constitutes a “high Crime or Misdemeanor”, especially since the Supreme Court decided in Nixon v. United States that it did not have the authority to determine whether the Senate properly “tried” a defendant. In 1970, then-House Minority Leader Gerald R. Ford defined the criterion as he saw it: “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.””

Impeachment is a political remedy, not a criminal justice or civil justice one. And given the vague definition of grounds for impeachment and the lack of any required standard of proof, what this all means, unfortunately, is that the process, especially in our current climate, is going to be rife, not with objectivity, but partisan politics. On both sides. 

Here’s more for the curious.

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  • What’s driving the rise in school shootings?

    ByJohn Brown

    Homicide rates are down in America, but school shootings are up. What’s going on? What’s driving this?

    Some say it’s guns.

    I have an hunch that I think deserves some study.

    Back in the 1970s we had 30 school shootings with a population of about 216 million.

    Today we have a population of 320 million. If we had the same ratio of shootings to population today, we’d have 44 shootings total in the decade between 2010 and 2020. But from 2000 – 2010, we had 60. And since 2010 (if my data is correct, and it appears that’s a big if–see Edit 2 at bottom) we’ve had 146. That’s a 300% increase!

    If we want to solve the school shooting problem in the long term, we need to figure out what’s fueling it. One way to get at this is to ask what’s changed since the 1970s and 80s when the rates were lower.

    Are we killing at a higher rate in general? Is that what’s changed?

    No. FiveThirtyEight reports homicide rates have dropped. Here’s their chart.

    We’re down.

    But school shootings are up. Way up!

    Clearly, what’s driving school shootings doesn’t seem to be the same thing that’s driving general homicide rates. Otherwise, the rates would be moving in the same direction, but they’re not.

    Is it gun ownership rates?

    According to the Washington Post, ownership rates are at their lowest in quite some time. Here’s their chart.

    This means that if general gun ownership rates were a major factor, then we’d be seeing school shooting rates fall. We’re not.

    Furthermore, some of the US states with the highest gun ownership rates have the lowest murder and school shooting rates. (For those wanting to know more about guns, magazines, the definition of an assault rifle, gun control, etc. see Larry Correia’s informational post below.)

    Now, it could be that while overall gun ownership rates have fallen, ownership in certain population segments has risen. That’s something to look at. But when looking at the overall ownership rate, we don’t find an answer.

    Is there anything else to study? Anything else that might be different now?

    Here’s my hunch–it’s the internet. My hunch is that an unintended consequence of social media and the ease of finding certain types of content have facilitated the development of the mindset and ability of certain youth to commit these crimes.

    We do things when we are prompted to take a specific action and we have both the ability and desire necessary to take that action. So action requires three things:

    1. A prompt
    2. The ability
    3. The desire

    If the rates are going up, then one or more of those things have changed. Either more kids are being prompted to take this specific action, we’ve made it easier for them to do it, or we’ve increased their desire to do it. Or some combination of those three.

    Let’s see if the internet might be a factor.

    First, from what I’ve read, it seems a lot of these kids feel like outcasts and seem to be seeking some kind of revenge. Does social media foster and facilitate more bullying and isolation and, therefore, more resentment? Has it increased the desire to conduct such attacks?

    Second, it is dramatically easier for kids to learn how to do all sorts of stuff now. Back in the 70s and 80s, it was hard to learn about the methods and tactics of crime, firearms, etc. Now, if you want to learn how to shoot, scope a place out, plan an attack, do all sorts of things, you can watch YouTube videos on it. Has the easy accessibility of how-to instruction facilitated the ability to plan and carry out these attacks?

    Third, back in the 70s and 80s you had limited programming. Gilligan’s Island, Brady Bunch, The Love Boat, The Donny and Marie Show, Lawrence Welk, etc. They all fostered good-citizen values. Today, kids have easy access to all sorts of crap. Violent rape porn. Evil games like Blue Whale that give challenges to the player, and the last is to kill yourself. Are there certain types of programming on the internet that foster a violent mindset? That prompt these very actions and makes them seem like a good alternative?

    Fourth, look at how well political conversations go on Facebook. Chat rooms, blogs, etc.–we all know they foster more incivility than when you talk in person. Does our social media, by its very structure, anonymity, etc. foster a more anger-filled approach to disagreements? Has it prompted, even trained, more kids to behave this way?

    Is one of the unintended consequences of the internet and social media a rise in school shootings?

    I’m not saying it’s the only part of the puzzle. But I do think it’s worth studying. We need a long-term solution.

    At the same time, we need something now while that long-term solution is being researched and implemented. One of the best ideas I’ve seen so far to stop the killings is the one mentioned here.

    Such people are screened, trained, and on-site. They can respond immediately. Plus it’s voluntary. If you’re a teacher that doesn’t want to do this, you don’t have to. Plus this doesn’t add security guards to schools. Nothing changes at the school until the shooter shows up, and suddenly there are half a dozen, dozen, two dozen deputies immediately there.

    I think at our tiny 1A middle school, there are probably 6-8 people who would do this, including my wife. The teachers know the kids, know where other teachers are likely to be, know the place like the back of their hands. We know security deters threats. I can’t see anything but positives.

    I don’t like the fact that we have to contemplate this. I want to go back to my youth in Bountiful, Utah where this never happened. Maybe we can get back to that type of a society. Until then we need an immediate, practical, and effective solution. This seems like a good part of a multi-approach solution.

    But what’s the long-term solution?

    I wonder if has to do with the internet.

    Is any organization seriously studying this?

    Do you see anything else that might have increased the prompts for this specific action, the ability to plan and conduct attacks, or the motivation to do so?

    Edit 1 – gun retention

    On Facebook today, a former deputy sheriff I know and respect was asked “Should teachers carry guns?” His answer: “No. Weapon retention is never even considered when politicians and others come up with that. Imagine some big, unfriendly student disarming a teacher during some classroom issue. Instant problem.”

    This is a good point to raise.

    I didn’t think of it. It’s clear none of the teacher defense plans are complete without it.

    But is it a show stopper?

    First of all, how big a risk is this? How many student-teacher scuffles do we have in grades 1-6 where the teacher is overpowered by a third-grader? How about in middle school? I’m sure the risk is higher in high school.

    But just because there’s a risk doesn’t always mean you shouldn’t do something. Male and female agents and officers are trained in retention. My question is whether such retention training is ineffective? Should officers not carry guns because of this?

    If it is effective, then it seems to me that if you’re trained, you’re trained. A big senior boy has just as much chance to disarm a trained cop as a trained non-cop of the same size and strength.

    This is another reason I like the suggestion of the sheriff above. It’s not just any teacher that would do this. They need to be screened and trained. They’re deputized. I could see them doing training on a frequent basis. Something goes down at at school, and you immediately have 6-8 trained deputies on site. Maybe a dozen or more. Is that not a game changer?

    It’s good to identify risks. But what would reduce the risks identified? Could we reduce them to acceptable levels? It’s a question that needs answering.

    Edit 2 – is the “rise” due to bad data?

    Just saw this. Is the “rise in school shootings” even real? Or is it bad data? Here’s an opinion on USA Today, suggesting it might not be as bad as we think. One of the things that’s maddening about all of this is what seems to be a lack of good data!

    Sources

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    All you need is a little beating and robbery

    ByJohn Brown

    Mrs. Brown, my wife, teaches language arts for the 7th and 8th grades as well as reading comprehension. She’s big on reading. She wants to provide every opportunity for kids to not only get good at it, but also learn to love it.

    And so her walls are lined with bookshelves full of awesome books teens love. She reads the first chapters of books to her classes to let them sample various stories. She features their book reports. She has them paste the covers of the books they’ve read on pages displayed around the classroom. And the school’s awesome librarian supports with her own programs.

    The 7th and 8th grade students at Rich Middle School are marinated in a big celebration of reading.

    In Mrs. Brown’s class, it’s fairly straight forward to get an A on reading, which is a huge part of your grade—all you’ve got to do is read.

    But how much reading do they need to do? How do you track it? And what books should they read?

    Check this out.

    First, she tests each student to see what his or her reading speed is.

    Next, she takes the number of hours they’re supposed to be reading each week for homework (I think it’s 2 or 2.5), then does the math to get a feasible reading word count for the trimester for each student. She may adjust it a bit, depending on the student’s ability.

    Third, she presents that number to the student, and the two of them set a word count goal for the trimester. Talk about an individualized goal.

    If you want to get an A in reading, all you have to do is reach that word count goal.

    How do you know how many words a book has?

    The Accelerated Reader program provides that information.

    But how does she know that they’ve read the books?

    She uses the Accelerated Reader tests. And if there isn’t one, the student can write a report.

    And what books do the students read?

    Any dang book they like.

    I love this. The kids get to select their own books and just read, read, read.

    Another part of this is that she pings each student once a week to ask them what book they’re reading, what page they’re on, and what they think of the book. This weekly check-in provides the more frequent accountability students of that age need.

    Yesterday, she received this report from one of her 8th grade boys who is reading Prey, the first book in The Drovers series.

    Oh, yeah.

    I’ll take that any day (grin).

    Rock on, budding reader.

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  • Good Stuff! Just Mercy

    ByJohn Brown
    Just Mercy movie poster

    In other countries, the government can throw you in jail for no cause. It can keep you there indefinitely awaiting trial. And it can manipulate the trial to prevent you from mounting a defense.

    In other countries, there is no trial by your peers. Instead the government is prosecutor, judge, and jury. 

    Our criminal legal system has so many wonderful protections in it. But there are times, as good as it is, when it convicts people of wrongs they didn’t do. Including murders they did not commit.

    I can’t imagine being in that position. One day I’m pursing my dreams, enjoying my family, going to the movies, walking my dog, hiking. The next I’m hauled off to jail, convicted, and put on death row.  And nobody will listen to me.

    Luckily this doesn’t happen in the vast majority of cases. But it does happen. And if it happens to you, wouldn’t it be nice to have someone show up one day and say, “I’m going to work like a dog to reveal the truth and get you out of here.”

    The movie Just Mercy tells the true story of just such a case. Walter McMillian is on death row for a murder he did not commit. And then one day a young defense attorney shows up and says he’s come to help.

    This movie will have you on the edge of your seat and make you think. There are two or three moments where some crass language is used. So check it to make sure it meets your requirements. If you end up watching, I think you’ll really enjoy this tale. We did.

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    Get great writing tips, for cheap!

    ByJohn Brown

    The annual Life, The Universe, and Everything writer’s conference is being held this year February 11-13. It’s chock full of panels and presentations from working authors. And this year you don’t have to live within driving distance of Provo, Utah to go because they’re doing it all online (thank you, Covid).

    I will be delivering two hour-long presentations. The first is about plot, where you learn the John Brown Story Framework that makes plotting so much easier. Heck, it makes story much easier. The second is for folks new to self-publishing and is called Indie Publishing 101.

    If you’re a new writer or looking to hone your craft, you will want to check it out.

    Go to the LTUE site

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