by Kim Pyung-woo (Attorney and former head of Korean Bar Association)

The modern version of the impeachment process dates back to the U.S. constitution drafted 240 years ago. The target of impeachment was a federal judge whose tenure was guaranteed for life. There have been 19 impeachment cases in the 240-year history of the U.S. and 15 of them involved judges. And eight of the impeachment motions were upheld by the U.S. senate and all of them involved judges.

The impeachment of a president differs from the impeachment of a judge in many ways. First, the U.S. president serves a four-year, two-term presidency and the leader is elected by an electoral college. And it goes against the principle of separating legal, administrative, and judicial powers for parliament to drive out the president through impeachment. However, an admissible exception is when a president is accused of violating the constitution or law requiring lawmakers to investigate the allegations and pursue impeachment if necessary.

During the 240-year history of the U.S. constitution, no president has ever been driven out of office through impeachment. The U.S. has a bicameral legislature consisting of the House of Representatives and the Senate. The House of Representatives files the charges and the Senate reviews them. The indictment or impeachment by the House of Representatives is tabled if a majority of its members support it. The impeachment motion must be supported by two thirds of its members in order to be ratified. The Senate is composed of 100 members (each of the 50 U.S. states elects two senators serving six-year terms). The Senate's handling of an impeachment bill is a judicial rather than a traditional legislative process. The U.S. Supreme Court justice serves as the judge in an impeachment trial. The head of the judiciary committee at the House of Representatives represents the group indicting the president. All members of the Senate serve the jury. A decision is put to vote and no written reason is drafted explaining the results of the ballot. The minutes of the trial are also left undrafted. Only a guilty or innocent ruling is made and the decision is final. The president cannot appeal the ruling or seek to have it nullified. Some Latin American countries, such as Brazil, allow impeached presidents to turn to the courts to nullify the decision.
     
Until now, two U.S. presidents have faced impeachment. They were Andrew Johnson, the 17th U.S. president, and Bill Clinton, the 42nd president. (President Richard Nixon resigned just before he faced impeachment.) Johnson came from the southern states and was appointed as vice president as a means to bring Americans together when Abraham Lincoln was re-elected president by a wide margin in 1864 after winning the Civil War. But Lincoln was assassinated 40 days after his re-election win and Johnson became president.

Johnson clashed frequently with the majority Republican Party senators who pursued hardline policies against the southern states following the Civil War. During that time, the Senate created a special law limiting the president's authority to fire state secretaries. According to the U.S. constitution, the president has the right to appoint and sack state secretaries. As a result, the law drafted by the Senate violated the constitution. Johnson sacked his secretary of war to protest the Senate's move. The House of Representatives viewed the president's decision as a direct challenge to the authority of the Senate and passed a bill seeking to impeach Johnson in February of 1868. The decision by lawmakers was widely expected (in a similar case, former president Roh Moo-hyun ignored warnings by the National Election Commission as well as calls by the National Assembly to apologize for his comments calling on voters to support his party, prompting lawmakers to impeach him).

In March of 1868, the impeachment bill was rejected by the Senate with 35 against it and 19 supporting it, which failed to meet the two-thirds needed for a quorum. Johnson was highly unpopular and did not run for office again, but the ruling proved that his right to appoint state secretaries and his policies concerning post-war American rehabilitation were deemed to fit the principles of the U.S. constitution.

And Clinton faced impeachment 130 years later. Clinton was re-elected president in 1996 winning a huge majority of votes after winning praise from the U.S. public for resolving the fiscal deficit and reviving the American economy. After his re-election, Clinton was found to have engaged in sex several times with a female White House intern in her early 20s named Monica Lewinsky. If Lewinsky had filed charges, the case would have become a blatant case of sexual assault or harassment. Lewinsky did not file charges, but the fact that an incumbent and married president engaged in romantic trysts with a young intern during his official duty was enough to enrage Americans who still adhere to Puritan values.

At that time, another woman named Paula Jones filed sexual harassment charges against Clinton requiring him to make a deposition. The scandal was leaked to the news media after independent counsel Kenneth Starr submitted a report accusing Clinton of perjury for claiming he did not have sex with Lewinsky. Using this as evidence, the Republican dominated House of Representatives accused Clinton of perjury and obstruction of justice. In February of 1999, the Senate rejected the charges with 45 members supporting and 55 against the perjury charges and 50 supporting and 50 against the charge of obstructing justice. The vote results failed to meet the 67 ballots in favor necessary for a quorum. And a large number of the 55 Republican representatives voted against impeaching Clinton.

The U.S. Senate does not record the reasons for its decisions regarding impeachment trials so there is no way of telling why the impeachment bill targeting Clinton was rejected. Legal experts believe that sexual relations with Lewinsky constitutes the president's privacy and does not constitute grounds for impeachment. There is one point that we must be aware of and that is the fact that the U.S. Senate is composed of a large number of veteran politicians (the tenure of a representative is two years, but the term is six years for senators). Most senators are seasoned politicians who have been re-elected several times. They are not easily incited by public sentiment as the House of Representatives and media. If Clinton was impeached, then vice president Al Gore, a Democrat, would have assumed the presidency. The Republican Party would not have gained control right away. It would have been no benefit for the U.S. if senators impeached Clinton for being a liar in spite of his achievements in reviving the American economy. Most senators sided with practical interests rather than moral obligations and chose national interests over popularity. As a result, Clinton finished his presidential tenure and remains among the most popular ex-presidents.

There are differences between what took place in the U.S. and in Korea. First, there is a difference in the number of impeachments that were pursued and which officials were targeted. In the U.S., 15 out of 19 officials who faced impeachment were judges, while two were presidents. Korea adopted the impeachment process since its establishment, but no judge or another high-ranking official has ever been impeached. The impeachment process in Korea has only been used twice and both targeting presidents. President Roh Moo-hyun faced impeachment in 2004 and President Park Geun-hye in 2016. The only similarity is that two presidents have faced impeachment in both countries.

But two U.S. presidents faced impeachment during the country's 240-year history, while two leaders faced impeachment in Korea over the span of only 70 years. Moreover, the first and second impeachment proceedings in the U.S. had a 130-year time gap, but just 12 years in Korea. Two out of 45 U.S. presidents faced impeachment compared to two out of 11 in Korea. Considering the fact that Korea's Constitution gained official status in 1987, the ratio of impeachment stands at 33 percent with two out of six presidents facing that fate. That makes Korea rank among the top in the world when it comes to the frequency of impeaching its presidents. This is nothing to be proud of. This shows just how unstable Korean politics is and illustrates the intensity of factional strife here.

What is interesting is the fact that both instances of impeachment in Korea took place when the National Assembly was dominated by the opposition. It appears that such circumstances foment an environment that promotes impeachment proceedings. Another interesting fact is that both Roh and Park are mavericks. Roh received only a high school education, while Park is a single woman. It appears that outdated and discriminatory social standards were at play in both instances.

Jan. 9, 2017