Bring the Judges to the Trial: A Comparative Analysis of the Judiciary’s Involvement in Impeachments Around the World

The United States has seen four presidential impeachments in its 245 years of existence, with three occurring in the past thirty years and two occurring in the past two years, making Donald Trump the first president to be impeached twice.[1] Recent impeachments have been extremely partisan.[2] The votes for and against impeachment and conviction in both of President Trump’s impeachment trials fell almost completely along party lines.[3] This partisan divide leaves half the country believing that impeachment proceedings are legitimate and the other believing they are not.[4] Impeachments all over the world have partisan undertones, but they are not necessarily as extreme as those in the United States.[5] This begs the question: is there a way to ease the political tension associated with presidential impeachments in the United States? One possibility is for the judiciary to be more heavily involved in the process.[6]

In the United States, the president, vice president, and any civil officer may be removed from office if they are impeached and convicted for committing “treason bribery, or other high crimes and misdemeanors.”[7] The U.S. Constitution grants the House of Representatives the power to impeach and grants the Senate the power to hold all impeachment trials.[8] When there is a presidential impeachment trial in the Senate, the Chief Justice of the Supreme Court presides.[9] Notably, the Chief Justice views his role as merely ceremonial.[10] Indeed, Chief Justice John Roberts chose not to preside over President Trump’s the second impeachment trial.[11]

Several other countries have their own impeachment processes, such as India, Brazil, France, and South Korea.[12] Different countries take different approaches to impeachment. In Bolivia and Ecuador, impeachment can be initiated by the public if a certain percentage of registered voters propose it.[13] Alternatively, many countries have judicial bodies control the impeachment process in some way to make it less political.[14] This goes beyond the simple presiding role the judiciary assumes in the American impeachment process.[15] For example, Colombia has different avenues for impeachment depending on the charge. If the president is being impeached for a misdemeanor or a crime committed through their role as president, the impeachment goes through the House and Senate. If the charge is a common crime, the Criminal Chamber of the Supreme Court holds a trial.[16] Honduras pre-2013 is the most extreme example of judicial involvement in the impeachment process. Until an amendment was passed in 2013, the Supreme Court in Honduras had sole control over the impeachment process.[17]

While complete judicial control is problematic because it ignores the inherent political nature of an impeachment, some judicial involvement is beneficial for the impeachment process.[18] In South Africa, the Constitutional Court interjects in the impeachment process to ensure that it adheres to the rule of law.[19] In South Korea, the Constitutional Court must confirm any removals that result from impeachment.[20] Both approaches give more credibility to the impeachment process because the independent entity of the court is involved and can balance pure political motivations.[21]

A concern with such judicial involvement in the American impeachment process is the limit on what the Supreme Court can review. In the United States, the Supreme Court cannot address issues that are purely political questions.[22] Impeachment decisions are considered political questions that are non-justiciable before the Supreme Court.[23] This limit should not be an issue, however, if the United States tried incorporating judicial involvement within the impeachment trial, rather than seeking review of impeachment decisions from the Court after the fact. As explained above, the U.S. Constitution clearly delineates a judicial role in the impeachment process.[24] The United States may treat this as a ceremonial role, but it does not need to do so.[25] Perhaps, if the United States tried to integrate the balance of judicial influence into the impeachment process as other countries have, the process would be viewed as more credible and less of a partisan attack on one party or another.

Esti Ness is a staff member of Fordham International Law Journal Volume XLIV.

This is a student blog post and in no way represents the views of the Fordham International Law Journal.

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[1] See Maggie Astor, The Impeachment Proceedings That Came Before, N.Y. Times (Jan. 13, 2021), https://www.nytimes.com/2021/01/13/us/politics/which-presidents-have-been-impeached.html.

[2] See Nina Totenberg, From Consensus to Deadlock: Is Impeachment Still a Check on Presidents, NPR (Dec. 10, 2019, 5:26 AM), https://www.npr.org/2019/12/10/785210611/from-consensus-to-deadlock-is-impeachment-still-a-check-on-presidents.

[3] See Impeachment Trial: Trump is Acquitted by the Senate, N.Y. Times (Feb. 17, 2021, 4:42 AM), https://www.nytimes.com/live/2021/02/13/us/impeachment-trial.

[4] See Kate Gundersen, The Politics of Impeachment: A Question of Legitimacy, Harv. Pol. Rev. (Jan. 15, 2020), https://harvardpolitics.com/the-politics-of-impeachment-2/.

[5] See Tom Ginsburg et. al., The Comparative Constitutional Law of Presidential Impeachment, 88 U. Chi. L. Rev. 81, 140 (2021) (explaining that all impeachments have partisan beliefs driving them in some way, but in the United States, presidential impeachments are more often used particularly for partisan reasons).

[6] See Politico Magazine, How to Fix Impeachment, Politico (Dec. 6, 2019, 5:08 AM), https://www.politico.com/news/magazine/2019/12/06/impeachment-trump-constitution-expert-analysis-076433 (suggesting that one option is to have the Supreme Court review whether Senators may be implicated in the matter motivating the impeachment and whether that would create a conflict for their role as a juror).

[7] U.S. Const. art. II, § 4.

[8] Id. at § 2-3.

[9] Id. at § 3.

[10] Ginsburg et. al., supra note 5, at 157.

[11] Gregory Mark, Chief Justice Roberts is Paving the Way for Trump to Claim His Trial is Unconstitutional, The Hill (Feb. 9, 2021, 11:00 AM), https://thehill.com/opinion/judiciary/537955-chief-justice-roberts-is-paving-the-way-for-trump-to-claim-his-trial-is.

[12] Ryan Heath, From Impeachment to Death Sentences: How Other Countries Punish Wayward Leaders, Politico (Dec. 19, 2019, 12:49 AM), https://www.politico.com/news/2019/12/18/trump-impeachment-foreign-laws-087624.

[13] Ginsburg et. al., supra note 5, at 135.

[14] All Things Considered, How Other Countries Handle Impeachments, And What the US Can Learn From Them, NPR, at 02:05 (Dec. 25, 2019), https://www.npr.org/2019/12/25/791351631/how-other-countries-handle-impeachments-and-what-the-u-s-can-learn-from-them.

[15] Ginsburg et. al., supra note 5, at 131-32.

[16] Ginsburg et. al., supra note 5, at 132.

[17] Id.

[18] Id. at 157-58.

[19] Id. at 158.

[20] Id.

[21] Id. at 155-56.

[22] John Harrison, The Political Question Doctrines, 67 Am. U. L. Rev. 457, 458 (2017).

[23] Id. at 479.

[24] U.S. Const. art. II, § 3.

[25] Ginsburg et. al., supra note 5, at 156-57.