What follows is another in a series of contributions from the terrific students in my Georgetown Law Center seminar on “Impeachment Power and the American Constitutional Balance.” __ F. Bowman

By Hugh Rosenberg

Donald Trump has been embroiled in scandal after scandal. Many of them could have justified his removal from office. Yet, he remains president. Only now, in the wake of the disturbing Ukraine call, is there real movement towards impeachment. Despite this momentum, it remains improbable that Trump will be removed. A number of factors support this prognosis: the high bar to conviction set by the requirement of a 2/3 majority in the senate, the vague standard of impeachable conduct that the Constitution provides, and features of American politics and society extrinsic to the Constitution.

To better understand how impeachments can be brought to completion, it will prove beneficial to survey the impeachment processes of different countries around the world, Brazil’s specifically, in comparison to that of the United States. Brazil stands above the rest as the undisputed champion of impeachment. Since 1990, it is by far the most prominent country – no disrespect to Ecuador, Paraguay, and Peru intended – to have removed two Presidents through the impeachment process. Technically Brazilian President Fernando Collor de Mello resigned before proceedings were completed, but his trial continued and he was found guilty by the Senate.[1] The United States on the other hand, has never convicted a President in a Senate impeachment trial in its 230-plus year history, although the specter of the process and nearly-guaranteed outcome prompted Nixon’s resignation.

Without looking at the respective Constitutions, one might assume that the reason for this disparity is that the procedure for impeachment in Brazil is much less rigorous than that of the United States. In fact, the opposite is true. Removal of a President from office in the United States requires a simple majority in the House of Representatives to impeach and a super majority in the Senate to convict. According to the Brazilian Constitution, a super majority is required in the lower house (the Chamber of Deputies) to impeach, as well as in the upper house (the Senate) to convict.[2] At least facially, it poses a more difficult  challenge to convict a President in an impeachment trial in Brazil than in the United States. So, the fact that conviction of a U.S. President requires a super majority of the Senate does not stand alone as an insurmountable bar to removal.

One explanation for this apparent incongruity is the fractured multi-party system in Brazil as opposed to the extremely polarized binary that exists in America. Representatives from eighteen different parties took part in the 2016 Senate vote to convict Dilma Rousseff.[3] Brazilian Presidents, unlike American ones, are easily left on an island amid the sea of political parties: “… the President can rarely count on a single-party support base large enough to weather impeachment crises.”[4] What’s more, and likely even more damning for a President under siege, is that even if her particular party outsizes the others, she can’t necessarily count on them. “The Brazilian party system is also characterized by a lack of cohesion within parties… The lack of disciplinary measures available to party leaders in most parties makes it less costly for individual legislators to defy party leadership.”[5]

Perhaps impeachment is so difficult to accomplish in America because no one understands what makes for impeachable conduct. Article II, Section 4 of the U.S. Constitution provides that “The President … shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” The meanings of treason and bribery are easy enough to tease out. Indeed, treason is defined explicitly in the Constitution. It is the meaning of that third element – “high Crimes and Misdemeanors” – that has proven to be frustratingly evasive.

It may be that the Framers of the U.S. Constitution intended the phrase to be somewhat amorphous – amenable to different interpretations in correspondence with different circumstances and contexts. One scholar argues this point convincingly – “The written constitution granted successive generations of legislators the power to identify for themselves the essential characteristics of the American constitutional system and to defend that system by removing its chief executive officer if he or she, by any individual act, pattern of behavior, or culpable inattention, places it at risk.”[6] While the Framers almost certainly had such intentions, it is likely that they failed to foresee the extent to which Congress, and the Senate in particular, would become so hyper-partisan. The flexibility that they intended the phrase to have, with the aim of making it easier to apply, now seems to hinder its application. The current composition of the Senate, split nearly down the middle, with members of both factions entrenched along party lines, makes it difficult for 67 of the 100 Senators to agree on “the essential characteristics of the American constitutional system.”

Impeachable conduct as defined by the Brazilian constitution is simultaneously much broader and more specific than its American counterpart. Section III, Article 85 provides:

Acts of the President that are attempts against the Federal Constitution are impeachable offenses, especially those against the: I. existence of the Union; II. free exercise of the powers of the Legislature, Judiciary, Public Ministry and constitutional powers of the Federation; III. exercise of political, individual and social rights; IV. internal security of the Country; V. probity in administration; VI. the budget law; VII. compliance with the laws and court decisions.[7]

Interestingly, it makes attempts against the Constitution impeachable. Such wording stands in stark contrast to the language in the Constitutions of other countries, such as the Philippines (“…culpable violations of the Constitutions…”[8]), Lithuania (“… grossly violated the Constitution…”[9]), South Africa (“… a serious violation of the Constitution…”[10]), and Romania (“…serious offenses which violate provisions of the Constitution…[11]) While there may be little practical difference between attempts against the Constitution, actual violations, gross violations, and even “high Crimes and Misdemeanors” – the verbiage used in the Brazilian Constitution expresses the desire of its drafters to hold their leaders accountable. The degree of culpability to which a Brazilian President’s bad behavior must rise is, according to the diction used in the different provisions, less than in many nations.

Similarly, though it is difficult to conceptualize what an attempt against the “existence of the Union” or “probity in administration” might look like in concrete terms, the sheer numerosity of named categories makes it easier for those seeking impeachment to associate objectionable conduct with an item on the list. The array of differentiated buckets of impeachable acts, paired with the shallow depth of culpability, leaves a Brazilian President with few outs should he or she become attached to a scandal.  The impeachment of Rousseff illustrates this.

Dilma Rousseff, whose removal was predicated on violations of items V and VI of Article 85 of the Brazilian Constitution, as well of a Fiscal Responsibility Law, was, by most accounts, not as corrupt as many in the government, including those who voted to impeach her.[12] However, Rousseff was not entirely innocent either – “there is broad agreement that Ms. Rousseff’s administration employed budgetary tricks to conceal a looming deficit and enhance her prospects during a bitterly fought re-election campaign in 2014.”[13] Her conduct, though hardly heinous, could be fairly construed as an “attempt against the budget law.” While her ouster may have been unfair, especially relative to the corruption of her adversaries, it was not a coup. As one Brazilian law professor put it, “[Rousseff’s crimes] are not penal crimes, so you cannot be put in prison because of them, but you can lose your mandate.”[14] A prominent historian noted that Rousseff’s impeachment was entirely consistent with the country’s Constitution in that it followed the law and was subject to judicial oversight.[15]

            The context surrounding the drafting of the 1988 Constitution supports the inference that its impeachment provision was designed to be executed despite a low level of culpability on the part of the President. The new Constitution arose at a time when Brazil had just emerged from more than two decades of military rule.[16] The two previous Constitutions served to perpetuate the regime above all else. They “heavily centralized power in the Executive and badly distorted separation of powers. Each transferred large amounts of power to the federal government from the states and local governments, and from the legislature and judiciary to the executive. None provided any serious protection for individual rights.”[17] In response to this dark period of Brazilian history, and to lay the foundation for a brighter future, the new Constitution looked much different. “The 1988 Constitution was designed to weaken the executive and to strengthen the legislature and judiciary. Indeed, initial drafts adopted a parliamentary rather than a presidential system of government. The present Constitution makes the President accountable to Congress…”[18] Removal is one such check on executive domination and can be accomplished through two avenues – in the manner described above – and through a criminal prosecution initiated by the lower house and tried by the Supreme Court.[19] The Brazilian Constitution also has in place measures, unincluded in the American Constitution, that prevent final fits of misbehavior when a President realizes that he or she is on the way out. “[A]n indicted President is suspended from office as soon as the Supreme Court receives the criminal accusation, while an impeached President is suspended from office as soon as proceedings are instituted in the Senate.”[20]

            So, structural differences account for some of the greater success of Brazilian impeachment than American, but certainly don’t tell the whole story. Mass protest in Brazil seems to play a critical, clinching role in sealing a President’s fate once the political tide has started to turn against him or her. Following a major 1992 corruption scandal involving Brazilian President Collor, 100,000 young people, faces painted with the colors of the Brazilian flag, took to the streets demanding his removal.[21] Again in 2016, subsequent to corruption allegations against Dilma Roussef, as many 3 million protesters marched across the country, once more clad in yellow-and-green, literally making their voices heard with chants of “Dilma Out!”[22] The rampant corruption that persists in Brazil today, the dismal state of the economy, and a history of violence and oppression vivid in living memory have fostered a dynamic where the average citizen is more than willing to loudly voice his or her discontent in demand of change.

These conditions are obviously much less prevalent in the United States, and thus, despite the brazen corruption emanating from the current White House, Americans aren’t quite sure how to react. Indeed, a sizeable portion of the population persists in fully supporting the actions of the President and his administration. Yet the tradition of protest isn’t entirely foreign to America, having come alive at important moments in the country’s history – from the Vietnam War, to the Civil Rights Movement, all the way back to the Boston Tea Party – and has precipitated change. The kind of sustained, truly popular outcry seen in Brazil’s recent history, and in America’s more distant past, might be what is needed to finally get an impeachment all the way over the hump in America.

[1] Kada, Naoko ‘Impeachment as a Punishment for Corruption?’. Checking Executive Power, edited by Jody C. Baumgartner and Naoko Kada. Praeger, 2003, pp. 122-123.

[2] Articles 52 & 53 of Brazil’s Constitution. 

[3] “Dois Senadores Do PR Votaram Contra Impeachment.” CORREIO DO LAGO, 12 May 2016, https://web.archive.org/web/20160623190625/http://www.correiodolago.com.br/noticia/dois-senadores-do-pr-votaram-contra-impeachment/34033/.

[4] Kada, supra, at 116.

[5] Id.

[6] Bowman, Frank O. High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump. Cambridge University Press, 2019, p. 111.

[7] Article 85 of Brazil’s Constitution.

[8] Article XI, Section 2 of the Philippines’ Constitution.

[9] Article 74 of Lithuania’s Constitution.

[10] Provision 89 of South Africa’s Constitution.

[11] Article 95 of Romania’s Constitution.

[12] The Editorial Board. “Making Brazil’s Political Crisis Worse.” The New York Times, The New York Times, 13 May 2016, https://www.nytimes.com/2016/05/13/opinion/making-brazils-political-crisis-worse.html.

[13] Jacobs, Andrew. “Brazil Impeachment Debate Hinges on a Thorny Legal Question.” The New York Times, The New York Times, 20 Apr. 2016, https://www.nytimes.com/2016/04/20/world/americas/dilma-rousseff-impeachment-brazil.html?module=inline.

[14] Id.

[15] Id.

[16] Rosenn, Keith S. “Separation of Powers in Brazil.” Separation of Powers in the Americas … and Beyond Symposium Issue, Duquesne Law Review, Fall 2009.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Rezende, Tatiana. “UNE 70 Years: “Fora Collor: The Cry of Face-Painted Youth.” EstudanteNet – Portal Oficial UNE e UBES, https:web.archive.org/web/20070903131454/http://www.une.org.br/home3/movimento_estudantil_20007/m_9920.html.

[22] Flynn, Daniel. “Record Brazil Protests Put Rousseff’s Future in Doubt.” Reuters, Thomson Reuters, 14 Mar. 2016, https://www.reuters.com/article/us-brazil-rousseff-protests/record-brazil-protests-put-rousseffs-future-in-doubt-idUSKCN0WF0IX.