Could Kavanaugh Get Impeached? What You Need to Know

Some liberals are pushing for Justice Brett Kavanaugh to be impeached. But do they have any valid grounds? And how would an impeachment process of a Supreme Court justice even work? The Heritage Foundation’s Tom Jipping, who worked on an impeachment process during his time as a Senate staffer and who is a now senior legal fellow, joins us to break it down. Read the transcript, posted below, or listen on the podcast:

We also cover these stories:

  • House Speaker Nancy Pelosi is out with a new plan that promises to lower drug prices.
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  • Iran is vowing “all out war” if they’re attacked by the United States or Saudi Arabia.

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This transcript is lightly edited.

Rep. Ayanna Pressley: Again, it’s deeply disturbing that someone that serves in the highest court of the land could have this many allegations, and this is why I filed the resolution to initiate an impeachment inquiry.

Kate Trinko: That’s Rep. Ayanna Pressley, Democrat of Massachusetts, talking on CNN earlier this week. Pressley, who is a member of the House squad, along with Reps. Alexandria Ocasio-Cortez and Ilhan Omar is calling for beginning the impeachment process of Justice Brett Kavanaugh. Here’s what else Pressley told CNN.

Brooke Baldwin: The president says [Justice Brett] Kavanaugh is the one who is being assaulted. Your response to Trump?

Pressley: This was a fundamentally flawed and a rushed process. This GOP-led Senate and the FBI did not follow up on numerous allegations, and I believe that Dr. [Christine Blasey] Ford and Deborah Ramirez deserve to have their due process, which is why I filed this resolution to initiate an impeachment inquiry so that we can get to the bottom of the matter.

Now, House Speaker Nancy Pelosi has indicated she doesn’t intend to focus on this issue, so it’s probably not going to go anywhere, but it’s still a telling sign of where today’s liberals are.

Joining us today to discuss is Tom Jipping, deputy director of the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. Tom, thanks for joining us.

Tom Jipping: Thanks for having me back.

Trinko: So let’s take a step back first. The Constitution does allow for impeachment. Why is that?

Jipping: Sure. The idea of impeachment, which is a way to remove a public official for serious misconduct while in office, that idea had long roots when America’s Founders put it in the Constitution. They focused primarily on the president.

In other words, it was a way between elections if the president was really guilty of serious misconduct, to remove him from office because the idea is that he’s actually committing an offense against the political system, against the people, and so it was kind of a safety valve. But of course, it’s supposed to be the very, very rare exception. Elections are what’s supposed to address most of those sorts of matters when it comes to elected officials.

Trinko: To get back to the particulars, do you think there’s any valid case that the left can make regarding whether Kavanaugh should be impeached?

Jipping: Well, I hope people listen to what Rep. Pressley said. She talked about how she wanted victims of sexual assault to have their voice heard. That’s a public policy issue, that’s not an impeachment issue. She talked about how it was really serious that a sitting Supreme Court justice could have so many allegations against him.

Think of how easy it is to create allegations if all it takes to remove a public official from office, especially one that is not elected like in the judiciary, is allegations. Well, you’re going to have a cabal of political activists, people in the media, they make allegations, they report them, and suddenly, “Oh, the allegations themselves are a basis for removing someone from office.”

That’s sheer chaos, and it’s nothing but a weapon for sort of political retaliation. The standard in the Constitution for impeachment is treason, bribery, or other high crimes and misdemeanors.

That’s a phrase that had a specific meaning when the Founders put it in the Constitution. It doesn’t include political differences, it doesn’t include some sort of political agenda where you want to use allegations against a Supreme Court justice for other purposes.

I think that’s what’s going on today. There’s nothing that has any basis in fact that relates to Justice Kavanaugh that would serve as a basis for impeachment in my opinion.

Trinko: So, if a bunch of hypotheticals happen, Pelosi changes her mind, something like that, and liberals in Congress decide to try to move forward with impeachment, how would that process even work?

Jipping: The Constitution gives the House the sole power of impeachment. So the House would begin that process … by the Judiciary Committee doing some investigation, but it can’t go forward unless there’s an actual resolution introduced that has articles of impeachment. It’s kind of like a grand jury indictment.

That’s what the House has to work with, and if the House passes that, passes that resolution, then it goes over to the Senate. The Constitution gives the Senate the sole power to try impeachments. There has to be an impeachment trial, the Senate does that through an Impeachment Trial Committee.

The last time we did this was in 2010, I worked for Sen. Orrin Hatch at the time. He was vice chairman of the Impeachment Trial Committee, I was the deputy chief counsel. The committee had 12 senators, six Republicans, six Democrats. The committee conducts the trial, and then prepares a detailed report of the evidence to give to the full Senate.

Then, the Senate votes on conviction, and two-thirds of the Senate has to vote in order to convict someone who has been impeached, and then they are removed from office.

Trinko: So, we’re talking about a very high bar here.

Jipping: It’s a very high bar. In all of American history, only 19 public officials have been impeached, 13 of those were federal judges. Even though the Founders’ focus was primarily on the president, two presidents have been impeached, neither one of them was removed from office because they weren’t convicted by the Senate.

Trinko: Have there been any instances where a Supreme Court justice has been impeached? And I guess it would just be high crimes and misdemeanors as well as treason, and bribery would be the grounds that you would care about.

Jipping: Yeah. Two Supreme Court justices have, although they were not convicted by the Senate.

I think people probably think that impeachment alone removes someone from office. Bill Clinton showed us that that’s not the case. The House can impeach you, but the Senate has to convict you in order to be removed from office.

So, several of the judges who were impeached by the House were not convicted by the Senate, and so they remained in office, and that would be the case if the Senate did not convict, whether it would be the president, a Supreme Court justice, and again, it takes two-thirds of the Senate to convict.

Trinko: You said there were two Supreme Court justices who have been impeached over history?

Jipping: I believe so, yeah. At least one.

Trinko: And do you know anything about that circumstance, or how it played out?

Jipping: Well, there have been dozens of different articles introduced against the various public officials that have been impeached by the House, some of them involved allegations of drunkenness and incompetence, others involved charges that they decided cases incorrectly, some of the articles were a little bit more political in nature.

The last judge to be impeached was a U.S. district judge from Louisiana, and the articles against him involved various instances of corruption, lying under oath, this kind of thing.

One important distinction though, and this would certainly apply to the Kavanaugh situation, and that is, it’s clear that impeachment is in the Constitution in order to remove a public official for misconduct in office.

It’s been debated throughout the years whether you can remove a public official for behavior that happened long before he even took office, which would be the case here, and the consensus certainly is that that is not an inappropriate use of impeachment.

We had the hearings last year, a lot of this stuff was aired, the Senate chose to confirm Justice Kavanaugh.

You can’t get a second bite at the apple just because you didn’t have enough votes to defeat him for appointment in the first place, and for conduct that allegedly took place decades ago, that is not consistent with the intended use of impeachment.

Trinko: Since it’s not consistent, it sounds like this would have a hard time even if the political ill will was there for this to get out of the House, or would it sort of be the Senate, and the committee even?

Jipping: The threshold in the House is a simple majority. So, if the majority party was that unified, and was that sort of political about it, they could vote to impeach someone for, I suppose, theoretically, anything they wanted. But the reason why there has to be a separate trial, and a higher threshold in the Senate, is because that’s got to have a check somehow.

There’s got to be a way of weeding out situations where maybe there was a kind of a political wave, or an undercurrent that got the thing started, but it’s going to take more than that to finish the process. It just depends on how much our House and Senate members understand the true meaning of impeachment, and the role it’s supposed to play in our political system.

Everything is so political today that even these sort of basic processes of government are getting kind of twisted and redirected in a political way. I hope that doesn’t happen here.

Trinko: Right, and speaking of that, the Supreme Court has ostensibly tried very hard to stay outside of politics to at least, in theory, govern according to the Constitution and rule that way.

This is obviously speculation, but do you think that this impeachment threat is potentially getting under the Supreme Court justice’s skin? Do you think it has implications for future nominees and nominations?

Jipping: I don’t think the impeachment threat does. The Constitution leaves the entire impeachment process completely to Congress, it has nothing to do with the courts. There’s no more independent public officials in the world than federal judges in the United States, right?

What I think is dangerous, the message is being sent, not so much that you might be impeached, but that we’re going to attack you if you don’t do what we want. In other words, the attacks on Justice Kavanaugh, the kinds of attacks on nominees, religious beliefs, and so on through this process.

It’s more of a general, “We are going to treat you badly. We are going to hold you and your family up to public scorn. We’re going to accuse you of terrible things,” and that may dissuade some good people from being willing to step up and to take a judicial service.

So, it’s not so much I think that the threat of actual removal through impeachment is real, it’s just the, “We are going to abuse you like you’ve never been abused before.” And that’s either going to keep people out of public service or they hope will sort of intimidate them into a making rulings that are more politically correct rather than legally correct.

Trinko: Yeah. I don’t know very many people nowadays who want to go into public service partly because of this.

Jipping: Well, obviously, the Supreme Court, there’s more at stake. Although, I’ll have to say, if the judiciary generally was operated more as it was designed to, they’d be involved in a lot less, they would be addressing far less controversial issues, there’d be a lot less at stake when comes to appointing judges, you wouldn’t have these kinds of conflicts.

In a way, the courts have done a little bit of this damage to themselves by becoming very political and intrusive, and going further than they really should as judges. Frankly, if we can bring more balance to our system and have a judiciary that’s operating more as it’s designed, it won’t be so tempting by certain political forces to try to manipulate them like this.

Trinko: Lastly, I believe you have a report out on Heritage.com.

Jipping: Yes. Hans von Spakovsky, and I did a legal memorandum in May called “The Impeachment Process: The Constitution and Historical Practice.” We put things in a broader historical context, we look at who may be impeached, what they may be impeached for, how it’s been used in American history … since this is obviously an issue that people are talking about. It does have a context, and it does have a history, and we hope we’re making a good contribution to people understanding it better.

Trinko: Be sure to check that out, and we’ll link to it if you’re interested in learning more about this.

Thanks so much for joining us today, Tom.

Jipping: You’re very welcome.

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