Constitution of the United States/Art. II/Section 4 Impeachment
Article II Executive Branch
Section 4 Impeachment
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| The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. |
Overview of Impeachment Clause[edit | edit source]
The Constitution gives Congress the authority to impeach and remove the President,[1] Vice President, and all federal "civil officers" for treason, bribery, or other high crimes and misdemeanors.[2] This tool was inherited from English practice, in which Parliament impeached and convicted ministers and favorites of the Crown in a struggle to rein in the Crown's power.
Congress's power of impeachment is an important check on the Executive and Judicial Branches, recognized by the Framers as a crucial tool for holding government officers accountable for violations of the law and abuses of power.[3] Congress has most notably employed the impeachment tool against the President and federal judges, but all federal civil officers are subject to removal by impeachment.[4] The Senate has also concluded (by majority vote) on various occasions that an official impeached while in office remains subject to trial, conviction, and imposition of the penalty of disqualification even after he or she leaves office.[5] The practice of impeachment makes clear, however, that Members of Congress are not civil officers subject to impeachment and removal.[6]
While judicial precedents inform the effective substantive meaning of various provisions of the Constitution, impeachment is at bottom a unique political process largely unchecked by the judiciary. While the meaning of treason and bribery is relatively clear, the scope of high crimes and misdemeanors lacks a formal definition and has been fleshed out over time, in a manner perhaps analogous to the common law, through the practice of impeachments in the United States Congress.[7] The type of behavior that qualifies as impeachable conduct, and the circumstances in which impeachment is an appropriate remedy for such actions, are thus determined by, among other things, competing political interests, changing institutional relationships among the three branches of government, and legislators' interaction with and accountability to the public.[8] The weight of historical practice, rather than judicial precedent, is thus central to understanding the nature of impeachment in the United States.
Offices Eligible for Impeachment[edit | edit source]
The Constitution provides that "[t]he President, Vice President, and all civil Officers of the United States" are subject to removal from office upon impeachment and conviction.[9] However, neither the text nor early historical sources precisely delineate who qualifies as a "civil officer." For example, debates at the Constitutional Convention do not appear to reveal the scope of who may be impeached beyond the provision's applicability to the President.[10] And while the Federalist Papers emphasized that the power of impeachment serves as a check on the Executive[11] and Judicial Branches,[12] they did not outline exactly what types of officials were considered to be civil officers.[13]
Historical practice thus informs the understanding of who qualifies as a civil officer. Aside from the President and Vice President, who are plainly identified in the Constitution's text as impeachable officials, historical practice indicates that federal judges clearly qualify as officers subject to impeachment and removal, as the majority of proceedings have applied to those positions.[14] Congress has also impeached the head of a cabinet-level Executive department.[15] While this indicates a congressional understanding that high-level Executive officers may be subject to impeachment, it is unclear how far down the ranks of the federal bureaucracy this principle travels.[16]
The second impeachment trial of President Donald Trump centered on the question of whether former officials remain subject to trial by the Senate after leaving office. There is historical evidence to support an original understanding that former officials remain subject to conviction and punishment by the Senate for actions taken while in office.[17] The constitutional text, however, does not directly address the question. Former President Trump's attorneys viewed the Constitution's command that "[t]he President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment . . . and Conviction," as supporting a requirement that the impeachment process applies only to officials who are holding office during the impeachment proceedings.[18] Justice Joseph Story, in his influential Commentaries on the Constitution of the United States, similarly argued that "the language of the constitution may create some doubt, whether [disqualification] can be pronounced without being coupled with a removal from office."[19] Moreover, to extend the impeachment process to former officials could be viewed as in tension with the Constitution's otherwise clear break from the British model, which permitted impeachment of private citizens.[20]
But it has also been argued, including by the House managers in the second Trump trial, that the constitutionally enumerated punishments of removal from office and disqualification from future office are distinct components of the remedy for impeachable misconduct.[21] The fact that an official has left office, and is therefore no longer subject to removal, does not "exempt" them from the remaining penalty of disqualification.[22] Moreover, if impeachment does not extend to officials who are no longer in office, then an important aspect of the impeachment punishment would be lost as Congress could never bar an official from holding office in the future as long as that individual resigns at some point prior to a Senate conviction.[23]
While these interpretive arguments have, and likely will continue to be raised, the Senate has determined by majority vote on multiple occasions that they retain the power to proceed against an Executive Branch official who has resigned from office. These decisions span from the trial of former Secretary of War William Belknap in 1876 to former President Trump in 2020.[24] Nevertheless, it appears that while Congress may have legal authority to impeach and try a former official, current disagreement on the matter may be widespread enough to create a practical obstacle to obtaining the supermajority necessary to convict a former official.
The Constitution's structure and historical practice also indicate that impeachment likely does not apply to Members of Congress.[25] First, Article II, Section 3 provides that officers of the United States are commissioned by the President;[26] Members of Congress receive no such commission. Second, Members may be removed from office by other means explicitly provided in the Constitution.[27] Third, the Ineligibility Clause bars any person "holding any office under the United States" from serving in any house of Congress, indicating the Members of Congress are not considered officers of the United States.[28]
Finally, congressional practice indicates that Members of Congress are not officers of the United States.[29] In 1797, the House of Representatives voted to impeach Senator William Blount, the first impeachment in the history of the young Republic.[30] Two years later, the Senate concluded that Senator Blount was not a civil officer subject to impeachment and voted to dismiss the articles because that body lacked jurisdiction over the matter.[31] This determination has been accepted ever since by the House and the Senate, and since then, the House has never again voted to impeach a Member of Congress.[32]
Future of Impeachment Remedy[edit | edit source]
While the historical practices of Congress offer the best guide as to what behavior constitutes a high crime or misdemeanor, this principle does not necessarily preclude the development or expansion of impeachment's reach in the future. Indeed, as noted previously,[33] the absence of impeachment proceedings directed against particular conduct in the past does not mean that such conduct would not be deemed impeachable in different circumstances.[34] For example, certain conduct giving rise to impeachment might not have occurred or attracted notice at an earlier time. Understandings of impeachable behavior might also change over time to recognize impeachment as available for a wider range of behavior than has been previously recognized. One possibility, among others, is that impeachment may be seen as appropriate to punish violations of the law or the Constitution that lack an alternative remedy, such as redress in the federal courts.[35] For example, impeachment has been proposed, but never applied, for alleged violations of constitutional and statutory requirements relating to the use of military force without congressional authorization.[36]
Likewise, future impeachments might shed light on unresolved issues pertinent to the impeachment process. For instance, the applicability of the Due Process Clause of the Fifth Amendment to federal impeachments is unclear.[37] In a suit challenging his impeachment and removal from office, former Judge Alcee Hastings argued that he had a property interest in his seat and salary and the government could not deprive him of these without according him due process--including a full trial before the entire Senate.[38] The U.S. District Court for the District of Columbia ruled that due process applied to impeachment proceedings.[39] However, the U.S. Court of Appeals for the District of Columbia Circuit reversed and remanded the ruling[40] because of the Supreme Court's intervening decision of Nixon v. United States.[41] On remand, the district court dismissed the case as nonjusticiable without commenting on the merits of the due process claim.[42] Presently, therefore, individual Senators themselves must decide whether the Due Process Clause applies to impeachment trials and what procedures such a requirement might entail. At times, this has led to inconsistent practices. For example, at the trial of Alcee Hastings, several Senators had been Members of the House in the previous session that voted for impeachment.[43] All three recused themselves from trial to avoid the appearance of a conflict.[44] In contrast, the same situation presented itself at the trials of Judge John Pickering and President Bill Clinton, but no Senators recused themselves in those cases.[45]
Impeachable Offenses[edit | edit source]
Overview of Impeachable Offenses[edit | edit source]
The Constitution provides that the grounds of impeachment are for "treason, bribery, or other high Crimes and Misdemeanors." While the types of conduct constituting treason and bribery are relatively well-understood terms,[46] the meaning of "high Crimes and Misdemeanors" is not defined in the Constitution or in statute.[47] The basic framework for impeachment was inherited from English practice by the colonies in their adoption of state constitutions.[48] Both experiences informed the adoption of impeachment provisions in the federal Constitution.
The common method for interpreting the Constitution's impeachment provisions stands in some contrast to that of other constitutional provisions. Whereas judicial precedent drives the prevailing understanding of many provisions of the Constitution, impeachment is essentially a political process that is largely unreviewable by the Judicial Branch.[49] As such, the historical practice of impeachment proceedings, rather than judicial decisions, informs our understanding of the Constitution's meaning in this area. In this vein, the meaning of "high crimes and misdemeanors" is informed not by judicial decisions, but by the history of congressional impeachments.[50]
Impeachment has been used to remove government officers who abuse the power of the office; conduct themselves in a manner incompatible with the purpose and function of their office; or misuse the office for improper or personal gain.[51]
Historical Background on Impeachable Offenses[edit | edit source]
The concept of impeachment and the standard of "high crimes and misdemeanors"[52] originally stems from English Parliamentary practice.[53] The House of Commons impeached and tried before the House of Lords both private citizens and government officers, but not the Crown itself, for offenses considered beyond the reach of the common-law criminal courts.[54] The tool was used by Parliament to corral the power of the Crown and police political offenses committed by ministers and favorites of the King.[55] Impeachment applied to conduct that damaged the state or subverted the government.[56] The standard of "high crimes and misdemeanors" appears intended to address conduct involving an individual's abuse of power or office.[57] Punishment for a conviction could include a range of penalties, including imprisonment, fines, or even death.[58]
The American colonies adopted their own impeachment procedures that informed the Framers' understanding of impeachment.[59] These traditions extended into state constitutions established during the early years of the Republic. During the years of 1776-1787, states adopted into their constitutions' impeachment provisions that limited impeachment to government officials and restricted the punishment for impeachment to removal from office with the possibility of future disqualification from office.[60] At the state level, the body charged with trying an impeachment varied.[61]
The standards for impeachments adopted at the Constitutional Convention were thus inspired by both English and colonial practice, but ultimately differed in structure from both these traditions. In particular, the Framers aimed to narrow the scope of impeachable offenses and persons subject to impeachment as compared to English practice.[62] For example, while according to English practice at the time of the Constitution's enactment, impeachment extended to anyone except a member of the royal family, the federal Constitution limited impeachment to federal government officers (including the President and Vice President).[63] In addition, whereas the English Parliament never formally defined the parameters of what counted as impeachable conduct, the Framers restricted impeachment to treason, bribery, and high crimes and misdemeanors.[64] In English practice, the Crown could pardon individuals following an impeachment conviction.[65] In contrast, the Framers restricted the pardon power from being applied to impeachments, rendering the impeachment process essentially unchecked by the Executive Branch.[66]
The Framers also rejected a proposal made during the Constitutional Convention to include--in addition to treason and bribery[67]--"maladministration" as an impeachable offense, which would have presumably incorporated a broad range of common-law offenses.[68] Although "maladministration" was a ground for impeachment in many state constitutions at the time of the Constitution's drafting,[69] the Framers instead adopted the term "high Crimes and misdemeanors" from English practice. James Madison, at the Constitutional Convention, objected to the inclusion of "maladministration" as grounds for impeachment because such a vague impeachment standard would "be equivalent to a tenure during pleasure of the Senate."[70] Immediately thereafter, the Convention voted to include "high crimes and misdemeanors" instead.[71] Arguably, the Framers' rejection of such a broad term supports the view that congressional disagreement with a President's policy goals is not sufficient grounds for impeachment.[72]
Of particular importance to the understanding of the practice in America were the roughly contemporaneous British impeachment proceedings of Warren Hastings, the governor general of India, which were transpiring at the time of the Constitution's formulation and ratification.[73] Hastings was charged with high crimes and misdemeanors, which included corruption and abuse of power.[74] At the Constitutional Convention, George Mason positively referenced the impeachment of Hastings. At that point in the Convention, a proposal to define impeachment as appropriate for treason and bribery was under consideration. George Mason objected, noting that treason would not cover the misconduct of Hastings.[75] Moreover, he thought impeachment should extend to "attempts to subvert the Constitution."[76] Accordingly, he proposed that maladministration be included as an impeachable offense, although, as noted earlier, this was eventually rejected in favor of "high crimes and misdemeanors."[77]
The Framers thus ultimately considered impeachment to be an essential tool to hold government officers accountable for political crimes.[78] The representatives of the people were best placed to investigate the "conduct of public men."[79] Moreover, impeachment is an essential bulwark in the separation of powers for the legislature against the power of the Executive and Judicial Branches. The President enjoys the power to appoint--with Senate approval--officers of the United States in the Executive and Judicial Branches, as well as the authority to remove those in the Executive Branch.[80] Judicial officers, once appointed, maintain their positions for life.[81] Consequently, Congress's power of impeachment serves as a crucial legislative check on the potential "encroach[ing]" power of Executive Branch officers[82] and likewise guards against judicial "usurpations on the authority of the legislature."[83]
Evidence of precisely what conduct the Framers and ratifiers of the Constitution considered to constitute high crimes and misdemeanors is relatively sparse. At the North Carolina ratifying convention, James Iredell, later to serve as an associate Justice of the Supreme Court, noted the difficulty in defining what constitutes an impeachable offense, beyond causing injury to the government.[84] For him, impeachment was "calculated to bring [offenders] to punishment for crime which is not easy to describe, but which every one must be convinced is a high crime and misdemeanor against government. [T]he occasion for its exercise will arise from acts of great injury to the community."[85] He thought the President would be impeachable for receiving a "bribe or act[ing] from some corrupt motive or other,"[86] but not merely for "want of judgment."[87] Similarly, Samuel Johnston, then the governor of North Carolina and later the state's first Senator, thought impeachment was reserved for "great misdemeanors against the public."[88]
At the Virginia ratifying convention, a number of individuals claimed that impeachable offenses were not limited to indictable crimes.[89] For example, James Madison argued that were the President to assemble a minority of states in order to ratify a treaty at the expense of the other states, this would constitute a impeachable "misdemeanor."[90] And Virginia governor Edmund Randolph, who would later become the Nation's first Attorney General, noted that impeachment was appropriate for a "willful mistake of the heart," but not for incorrect opinions.[91] In addition, Randolph argued that impeachment was appropriate for a President's violation of the Foreign Emoluments Clause, which, he noted, guards against corruption.[92]
James Wilson, delegate to the Constitutional Convention and later a Supreme Court Justice, delivered talks at the College of Philadelphia following the adoption of the federal Constitution concerning impeachment. He claimed that impeachment was reserved to "political crimes and misdemeanors, and to political punishments."[93] He argued that, in the eyes of the Framers, impeachments did not come "within the sphere of ordinary jurisprudence. They are founded on different principles; are governed by different maxims; and are directed to different objects."[94] Consequently, for Wilson, the impeachment and removal of an individual did not preclude a later trial and punishment for a criminal offense predicated on the same behavior.[95]
At the time of ratification of the Constitution, the phrase "high crimes and misdemeanors" thus appears understood to have applied to uniquely "political" offenses, or misdeeds committed by public officials against the state.[96] Alexander Hamilton, in explaining the Constitution's impeachment provisions, described impeachable offenses as arising from "the misconduct of public men, or in other words from the abuse or violation of some public trust."[97] Such offenses were "Political, as they relate chiefly to injuries done immediately to the society itself."[98] In the centuries following the Constitution's ratification, precisely what behavior constitutes a high crime or misdemeanor has been the subject of much debate.[99]
Jurisprudence on Impeachable Offenses (1789-1860)[edit | edit source]
Congressional understanding of the scope of activities subject to impeachment and the potential persons who may be impeached was first put to the test during the Adams Administration. In 1797, letters sent to President John Adams revealed a conspiracy by Senator William Blount--in violation of the United States government's policy of neutrality on the matter and the Neutrality Act[100]--to organize a military expedition with the British to invade land in the American Southwest under Spanish control.[101] The House voted to impeach Senator Blount on July 7, 1797,[102] while the Senate voted to expel Senator William Blount the next day.[103] Before impeaching Senator Blount, several House Members questioned whether Senators were "civil officers" subject to impeachment.[104] But Samuel W. Dana of Connecticut argued that Members of Congress must be civil officers, because other provisions of the Constitution that mention offices appear to include holding legislative office.[105] Despite already having voted to impeach Senator Blount, it was not until early in the next year that the House actually adopted specific articles of impeachment against Senator Blount.[106]
At the Senate impeachment trial in 1799, Blount's attorneys argued that impeachment was improper because Blount had already been expelled from his Senate seat and had not been charged with a crime.[107] However, the primary issue of debate was whether Members of Congress qualified as civil officers subject to impeachment. The House prosecutors argued that under the American system, as in England, virtually anyone was subject to impeachment.[108] The defense responded that this broad interpretation of the impeachment power would enable Congress to impeach state officials as well as federal, upending the proper division of federal and state authorities in the young Republic.[109] The Senate voted to defeat a resolution that declared Blount was a "civil officer" and therefore subject to impeachment.[110] The Senate ultimately voted to dismiss the impeachment articles brought against Blount because it lacked jurisdiction over the matter, although the impeachment record does not indicate precisely the basis for this conclusion.[111] Regardless, the House has not impeached a Member of Congress since.
The first federal official to be impeached and removed from office was John Pickering, a federal district judge. The election of President Thomas Jefferson in 1800, along with Jeffersonian Republican majorities in both House of Congress, signaled a shift from Federalist party control of government.[112] Much of the federal judiciary at this early stage of the Republic were members of the Federalist party, and the new Jeffersonian Republican majority strongly opposed the Federalist-controlled courts.[113] John Pickering was impeached by the House of Representatives in 1803[114] and convicted by the Senate on March 12, 1804.[115] The circumstances of Judge Pickering's impeachment are somewhat unique as it appears that the judge had been mentally ill for some time, although the articles of impeachment did not address Pickering's mental faculties but instead accused him of drunkenness, blasphemy on the bench, and refusing to follow legal precedent.[116] Judge Pickering did not appear at his trial, and Senator John Quincy Adams apparently served as a defense counsel.[117] Following debate in a closed session, the Senate voted to permit evidence of Judge Pickering's insanity, drunkenness, and behavior on the bench.[118] The Senate also rejected a resolution to disqualify three Senators, who were previously in the House and had voted to impeach Judge Pickering, from participating in the impeachment trial.[119] The Senate voted to convict Judge Pickering guilty as charged, but the articles did not explicitly specify that any of Pickering's behavior constituted a high crime or misdemeanor.[120] Objections to the framing of the question at issue caused several Senators to withdraw from the trial.[121]
On the same day the Senate convicted Judge Pickering, the House of Representatives impeached Supreme Court Justice Samuel Chase.[122] Like the impeachment trial of Judge Pickering, the proceedings occurred following the election of President Thomas Jefferson and amidst intense conflict between the Federalists and Jeffersonian Republicans.[123] Justice Chase was viewed by Jeffersonian Republicans as openly partisan, and in fact the Justice did openly campaign for the election of Federalist John Adams in the election of 1800.[124] In addition, Republicans took issue with Justice Chase's aggressive approach to jury instructions in Sedition Act prosecutions.[125] The eight articles of impeachment accused him of acting in an "arbitrary, oppressive, and unjust" manner at trial, misapplying the law, and expressing partisan political views to a grand jury.[126] The Senate trial began on February 4, 1805. Both the House managers and defense counsel for Justice Chase presented witnesses detailing the Justice's behavior.[127] While some aspects of the dispute focused on whether Justice Chase took certain actions, the primary conflict centered on whether his behavior was impeachable.[128] Before reaching a verdict, the Senate approved a motion from Senator James Bayard, a Federalist from Delaware, that the underlying question be whether Justice Chase was guilty of high crimes and misdemeanors, rather than guilty as charged.[129] The Senate vote ultimately fell short of the necessary two-thirds majority to secure a conviction on any of the articles.[130] Of the eight articles, a majority of Senators voted to convict on three, while the remaining five did not muster a majority for conviction.[131]
The trial raised a number of questions which have recurred throughout the history of impeachments. For example, is impeachment limited to criminal acts, or does it extend to non-criminal behavior?[132] The opposing sides in the Chase case took differing views on this matter, as they would in later impeachments to come.[133] Due in part to the charged political atmosphere of the historical context, the attempted impeachment of Justice Chase has also come to represent an important limit on the scope of the impeachment remedy. Commentators have interpreted the acquittal of Justice Chase as establishing that impeachment does not extend to congressional disagreement with a judge's opinions or judicial philosophy.[134] At least some of the Senators who voted to acquit did not consider the alleged offenses as rising to the level of impeachable behavior.[135]
By the time of the next impeachment in 1830, both houses of Congress were controlled by Jacksonian Democrats, and the federal courts were unpopular with Congress and the public.[136] The House of Representatives impeached James Peck, a federal district judge, for abusing his judicial authority. The sole article accused the judge of holding an attorney in contempt for publishing an article critical of Peck and barring the attorney from practicing law for 18 months. The context surrounding Judge Peck's actions involved disputes over French and Spanish land grant titles following the transfer of land in the Louisiana territory from French to U.S. control.[137] Shortly after Missouri was admitted to the United States as part of the Missouri Compromise in 1821, Judge Peck decided a land rights case against the claimants in favor of the United States.[138] The attorney for the plaintiffs wrote an article critical of the decision in a local paper.[139] Judge Peck held the attorney in contempt, sentenced him to jail for twenty-four hours, and barred him from practicing law for eighteen months.[140]
The House impeached Judge Peck by a wide margin.[141] Of central concern during the Senate trial were the limits of a judge's common law contempt power, a matter that appeared to be in dispute.[142] The Senate ultimately acquitted Judge Peck, with roughly half of the Jacksonian Democrats voting against conviction.[143] Shortly thereafter, Congress passed a law reforming and defining the scope of the judicial contempt power.[144]
Finally, in the midst of the Civil War, federal district judge West H. Humphreys was appointed to a position as a judge in the Confederate government, but he did not resign as a United States federal judge.[145] In 1862, the House impeached and the Senate convicted Judge Humphreys for joining the Confederate government and abandoning his position.[146] As in the trial of Judge Pickering previously, Judge Humphreys did not attend the proceedings.[147] Unlike in the case of Judge Pickering, however, no defense was offered in the impeachment trial of Judge Humphreys.[148]
President Andrew Johnson and Impeachable Offenses[edit | edit source]
The impeachment and trial of President Andrew Johnson transpired in the shadow of the Civil War and the assassination of President Abraham Lincoln.[149] President Johnson was a Democrat and former slave owner who was the only Southern Senator to remain in his seat when the South seceded from the Union.[150] President Lincoln, a Republican, appointed Johnson military governor of Tennessee in 1862,[151] and Johnson was later selected as Lincoln's second-term running mate on a "Union" ticket.[152] Given these unique circumstances, President Johnson lacked both a party and geographic power base when in office, which likely isolated him when he assumed the presidency following the assassination of President Lincoln.[153]
The majority Republican Congress and President Johnson clashed over, among other things, Reconstruction policies implemented in the former slave states and control over officials in the Executive Branch.[154] President Johnson vetoed twenty-one bills while in office, compared to thirty-six vetoes by all prior Presidents. Congress overrode fifteen of Johnson's vetoes, compared to just six with prior Presidents.[155] On March 2, 1867, Congress reauthorized, over President Johnson's veto, the Tenure of Office Act, extending its protections for all officeholders.[156] In essence, the Act provided that all federal officeholders subject to Senate confirmation could not be removed by the President except with Senate approval,[157] although the reach of this requirement to officials appointed by a prior administration was unclear.[158] Congressional Republicans apparently anticipated the possible impeachment of President Johnson when drafting the legislation; Republicans already knew of President Johnson's plans to fire Secretary of War Edwin Stanton and the Act provided that a violation of its terms constituted a "high misdemeanor."[159]
President Johnson subsequently fired Secretary Stanton without the approval of the Senate. Importantly, his cabinet unanimously agreed that the new restrictions on the President's removal power imposed by the Tenure of Office Act were unconstitutional.[160] Shortly thereafter, on February 24, 1868, the House voted to impeach President Johnson.[161] The impeachment articles adopted by the House against President Johnson included defying the Tenure of Office Act by removing Stanton from office[162] and violating (and encouraging others to violate) the Army Appropriations Act.[163] In addition, one article of impeachment accused the President of making "utterances, declarations, threats, and harangues" against Congress.[164]
The Senate appointed a committee to recommend rules of procedure for the impeachment trial which subsequently were adopted by the Senate, including a one-hour time limit for each side to debate questions of law that would arise during the trial.[165] Chief Justice Salmon P. Chase presided over the trial and was sworn in by Associate Justice Samuel Nelson.[166] During the swearing-in of the individual Senators, the body paused to debate whether Senator Benjamin Wade of Indiana, the president pro tempore of the Senate, was eligible to participate in the trial. Because the office of the Vice President was empty, under the laws of succession at that time Senator Wade would assume the presidency upon a conviction of President Johnson. Ultimately, the Senator who raised this point, Thomas Hendricks of Indiana, withdrew the issue and Senator Wade was sworn in.[167]
An important point of contention at the trial was whether the Tenure of Office Act protected Stanton at all due to his appointment by President Lincoln, rather than President Johnson.[168] Counsel for President Johnson argued that impeachment was inappropriate for violation of a statute whose meaning was unclear, and the statute barring removal of the Secretary of War was an unconstitutional intrusion into the President's authority under Article II.[169]
The Senate failed to convict President Johnson by one vote on three different articles, and it failed to vote on the remaining eight.[170] However, reports indicate that several Senators were prepared to acquit if their votes were needed.[171] Seven Republicans voted to acquit; of those Senators, some thought it questionable whether the Tenure of Office Act applied to Stanton and that it was improper to impeach a President for incorrectly interpreting an arguably ambiguous law.[172]
Certain commentators have concluded that the failure to convict President Johnson coincides with a general understanding that impeachment is appropriate for abuses of power or violations of the public trust, but does not pertain to political or policy disagreements with the President, no matter how weighty.[173]
Jurisprudence on Impeachable Offenses (1865-1900)[edit | edit source]
The post-bellum experience in American history saw a variety of government officials impeached on a number of different grounds. These examples provide important principles that guide the practice of impeachment through the present day. For example, the Senate has not always conducted a trial following an impeachment by the House. In 1873, the House impeached federal district judge Mark. H. Delahay for, among other things, drunkenness on and off the bench.[174] The impeachment followed an investigation by a subcommittee of the House Judiciary Committee into his conduct.[175] Following the House vote on impeachment, Judge Delahay resigned before written impeachment articles were drawn up and the Senate did not hold a trial.[176] The impeachment of Judge Delahay indicates that the scope of impeachable behavior is not limited to strictly criminal behavior; Congress has been willing to impeach individuals for behavior that is not indictable, but nonetheless constitutes an abuse of an individual's power and duties.
This period of American history was fraught with partisan conflict over Reconstruction.[177] In addition to President Johnson, a number of other individuals were investigated by Congress during this time for purposes of impeachment. For example, in 1873, the House voted to authorize the House Judiciary Committee to investigate the behavior of Edward H. Durrell, federal district judge for Louisiana.[178] A majority of the House Judiciary Committee reported in favor of impeaching Judge Durell for corruption and usurpation of power, including interfering with the state's election.[179] Judge Durrell resigned on December 1, 1874, and the House discontinued impeachment proceedings.[180]
The first and only time a Cabinet-level official was impeached occurred during the presidential administration of Ulysses S. Grant. Grant's Secretary of War, William W. Belknap, was impeached in 1876 for allegedly receiving payments in return for appointing an individual to maintain a trading post in Indian territory.[181] Belknap resigned two hours before the House unanimously impeached him,[182] but the Senate nevertheless conducted a trial in which Belknap was acquitted.[183] During the trial, upon objection by Secretary Belknap's counsel that the Senate lacked jurisdiction because Belknap was now a private citizen, the Senate voted 37-29 in favor of jurisdiction.[184] A majority of Senators voted to convict Secretary Belknap, but no article mustered a two-thirds majority, resulting in acquittal. A number of Senators voting to acquit indicated that they did so because the Senate did not have jurisdiction over an individual no longer in office.[185] Notably, although bribery is explicitly included as an impeachable offense in the Constitution, the impeachment articles brought against Secretary Belknap instead charged his behavior as constituting high crimes and misdemeanors.[186] Bribery was mentioned at the Senate trial, but it was not specifically referenced in the impeachment articles themselves.[187]
Early Twentieth Century Jurisprudence on Impeachable Offenses[edit | edit source]
The twentieth century saw further development of the scope of conduct considered by Congress to be impeachable, including the extent to which non-criminal conduct can constitute impeachable behavior and the proper role of a federal judge. Further, the question of judicial review of impeachments received its first treatment in the federal courts.
The question of whether Congress can designate particular behavior as a "high crime or misdemeanor" via statute arose in the impeachment of Charles Swayne, a federal district judge for the Northern District of Florida, during the first decade of the twentieth century. A federal statute provided that federal district judges live in their districts and that anyone violating this requirement was "guilty of a high misdemeanor."[188] Judge Swayne's impeachment originated from a resolution passed by the Florida legislature requesting the state's congressional delegation to recommend an investigation into his behavior.[189] The procedures followed by the House in impeaching Judge Swayne were somewhat unique. First, the House referred the impeachment request to the Judiciary Committee for investigation. Following this investigation, the House voted to impeach Judge Swayne based on the report prepared by the Committee.[190] The Committee was then tasked with preparing articles of impeachment to present to the Senate.[191] The House then voted again on these individual articles, each of which received less support than the single prior impeachment vote had received.[192] The impeachment articles accused Judge Swayne of a variety of offenses, including misusing the office, abusing the contempt power, and living outside his judicial district. At the trial in the Senate, Judge Swayne essentially admitted to certain accused behavior, although his attorneys did dispute the residency charge, and Swayne instead argued that his actions were not impeachable.[193] The Senate vote failed to convict Judge Swayne on any of the charges brought by the House.[194]
The impeachability of certain non-criminal behavior for federal judges was firmly established by the impeachment of Judge Robert W. Archbald in 1912. Judge Archbald served as a federal district judge before being appointed to the short-lived U.S. Commerce Court, which was created to review decisions of the Interstate Commerce Commission.[195] He was impeached by the House for behavior occurring both as a federal district judge and as a judge on the Commerce Court.[196] The impeachment articles accused Judge Archbald of, among other things, using his position as a judge to generate profitable business deals with potential future litigants in his court.[197] This behavior did not violate any criminal statute and did not appear to violate any laws regulating judges.[198] Judge Archbald argued at trial that non-criminal conduct was not impeachable. The Senate voted to convict him on five articles and also voted to disqualify him from holding office in the future.[199] Four of those articles centered on behavior that occurred while Judge Archbald sat on the Commerce Court, the fifth described his conduct over the course of his career.[200]
In the 1920s, a series of corruption scandals swirled around the administration of President Warren G. Harding. Most prominently, the Teapot Dome Scandal, which involved the noncompetitive lease of government land to oil companies, implicated numerous government officials and led to resignations and the criminal conviction and incarceration of a cabinet-level official.[201] The Secretary of the Navy, at the time Edwin Denby, was entrusted with overseeing the development of oil reserves that had recently been located. The Secretary of the Interior, Albert Fall, convinced Denby that the Interior Department should assume responsibility for two of the reserve locations, including in Teapot Dome, Wyoming. Secretary Fall then leased the reserves to two of his friends, Harry F. Sinclair and Edward L. Doheny. Revelations of the lease without competitive bidding launched a lengthy congressional investigation which sparked the eventual criminal conviction of Fall for bribery and conspiracy and Sinclair for jury tampering. President Harding, however, died in 1923, before congressional hearings began. The affair also generated significant judicial decisions examining the scope of Congress's investigatory powers.[202]
One aspect of the controversy included an impeachment investigation into the decisions of then-Attorney General Harry M. Daugherty.[203] In 1922 the House of Representatives referred a resolution to impeach Daugherty for a variety of activities, including his failure to prosecute those involved in the Teapot Dome Scandal, to the House Judiciary Committee.[204] The House Judiciary Committee eventually found there was not sufficient evidence to impeach Daugherty. However, in 1924, a Senate special committee was formed to investigate similar matters.[205] That investigation spawned allegations of a variety of improper activities in the Justice Department. Daugherty resigned on March 28, 1924.[206]
In 1926, federal district judge George W. English was impeached for a variety of alleged offenses, including (1) directing a U.S. marshal to gather a number of state and local officials into court in an imaginary case where Judge English proceeded to denounce them; (2) threatening two members of the press with imprisonment without sufficient cause; and (3) showing favoritism to certain litigants before his court.[207] Judge English resigned before a trial in the Senate occurred and the Senate dismissed the charges without conducting a trial in his absence.[208]
Federal district judge Harold Louderback was impeached in 1933 for showing favoritism in the appointment of bankruptcy receivers, which were coveted positions following the stock market crash of 1929 and the ensuing Depression.[209] The House authorized a subcommittee to investigate, which held hearings and recommended to the Judiciary Committee that Judge Louderback be impeached.[210] The Judiciary Committee actually voted against recommending impeachment, urging censure of Judge Louderback instead, but permitted the minority report that favored impeachment to be reported to the House together with the majority report.[211] The full House voted to impeach anyway,[212] but the Senate failed to convict him.[213]
Shortly thereafter, the House impeached federal district judge Halsted L. Ritter for showing favoritism in and profiting from appointing receivers in bankruptcy proceedings; practicing law while a judge; and failing to fully report his income on his tax returns.[214] The Senate acquitted Judge Ritter on each individual count alleging specific behavior, but convicted him on the final count which referenced the previous articles, and charged him with bringing his court into disrepute and undermining the public's confidence in the judiciary.[215]
Congress's impeachment of Judge Ritter was the first to be challenged in court.[216] Judge Ritter brought a suit in the Federal Court of Claims seeking back pay, arguing that the charges brought against him were not impeachable under the Constitution and that the Senate improperly voted to acquit on six specific articles but to convict on a single omnibus article.[217] In rejecting Judge Ritter's suit, the court held that the Senate has exclusive jurisdiction over impeachments and courts lack authority to review the Senate's verdict.[218]
President Richard Nixon and Impeachable Offenses[edit | edit source]
The impeachment investigation and ensuing resignation of President Richard Nixon stands out as a profoundly important experience informing the standard for the impeachment of presidents.[219] Although President Nixon was never impeached by the House or subjected to a trial in the Senate, his conduct exemplifies for many authorities, scholars, and the general public the paradigmatic case of impeachable behavior in a President.
Less than two years after a landslide reelection as President, Richard Nixon resigned following the House Judiciary Committee's adoption of three articles of impeachment against him.[220] The circumstances surrounding the impeachment of President Nixon were sparked on June 17, 1972, by the arrest of five men for breaking into the Democratic National Headquarters at the Watergate Hotel and Office Building. The arrested men were employed by the Committee to Re-Elect the President (CRP), a campaign organization formed to support President Nixon's reelection.[221]
In the early summer of 1973, Attorney General Elliot Richardson appointed Archibald Cox as a special prosecutor to investigate the connection between the five burglars and CRP. Likewise, the Senate Select Committee on Presidential Campaign Activities initiated its own investigation.[222] After President Nixon fired various staffers allegedly involved in covering up the incident, he spoke on national television disclaiming knowledge of the cover up. However, the investigations uncovered evidence that President Nixon was involved, that he illegally harassed his enemies through, among other things, the use of tax audits, and that the men arrested for the Watergate break-in--the "plumbers unit," because they were used to "plug leaks" considered damaging to the Nixon Administration--had committed burglaries before.[223] Eventually a White House aide revealed that the President had a tape recording system in his office, raising the possibility that many of Nixon's conversations about the Watergate incident were recorded.[224]
The President refused to hand over such tapes to the special prosecutor or Congress. In his capacity as special prosecutor, Cox then subpoenaed tapes of conversations in the Oval Office on Saturday, October 20, 1973. This sparked the sequence of events commonly known as the Saturday Night Massacre.[225] In response to the subpoena, President Nixon ordered Attorney General Elliot Richardson to fire Special Prosecutor Cox. Richardson refused and resigned. Nixon ordered Deputy Attorney General William D. Ruckelshaus to fire the special prosecutor, but Ruckelshaus also refused to do so and resigned. Solicitor General Robert Bork, in his capacity as Acting Attorney General, then fired the special prosecutor.[226] Nixon eventually agreed to deliver some of the subpoenaed tapes to the judge supervising the grand jury. The Justice Department appointed Leon Jaworski to replace Cox as special prosecutor.
The House Judiciary Committee began an official investigation of the Watergate issue and commenced impeachment hearings in April 1974.[227] On March 1, 1974, a grand jury indicted seven individuals connected to the larger Watergate investigation and named the President as an unindicted coconspirator.[228] On April 18, a subpoena was issued, upon the motion of the special prosecutor, by the United States District Court for the District of Columbia requiring the production of tapes and various items relating to meetings between the President and other individuals. Following a challenge to the subpoena in district court, the Supreme Court reviewed the case. On July 24, 1974, the Supreme Court affirmed the district court's order.[229]
In late July, following its investigation and hearings, the House Judiciary Committee voted to adopt three articles of impeachment against President Nixon.[230] The first impeachment article alleged that the President obstructed justice by attempting to impede the investigation into the Watergate break-in.[231] The second charged the President with abuse of power for using federal agencies to harass his political enemies and authorizing burglaries of private citizens who opposed the President.[232] The third article accused the President of refusing to cooperate with the Judiciary Committee's investigation.[233]
The Committee considered but rejected two proposed articles of impeachment. The first rejected article concerned receiving compensation in the form of government expenditures at his private properties in California and Florida--which allegedly constituted an emolument from the United States in violation of Article II, Section, 1, Clause 7 of the Constitution--and tax evasion.[234] Those Members opposed to the portion of the charge alleging receipt of federal funds argued that most of the President's expenditures were made pursuant to a request from the Secret Service; that there was no direct evidence the President knew at the time that the source of these funds was public, rather than private; and that this conduct failed to rise to the level of an impeachable offense.[235] Some Members opposed to the tax evasion charge argued that the evidence was insufficient to impeach; others that tax fraud is not the type of behavior "at which the remedy of impeachment is directed."[236]
The second rejected article accused the President of concealing from Congress the bombing operations in Cambodia during the Vietnam conflict.[237] This article was rejected for two primary reasons: some Members thought (1) the President was performing his constitutional duty as Commander in Chief and (2) Congress was given sufficient notice of these operations.[238]
President Nixon resigned on August 9, 1974, before the full House voted on the articles.[239] The lessons and standards established by the Nixon impeachment investigation and resignation are disputed. On the one hand, the behavior alleged in the approved articles against President Nixon is arguably a "paradigmatic" case of impeachment, constituting actions that are almost certainly impeachable conduct for the President.[240]
On the other hand, the significance of the House Judiciary Committee's rejection of certain impeachment articles is unclear. In particular, whether conduct considered unrelated to the performance of official duties, such as the rejected article alleging tax evasion, can constitute an impeachable offense for the President is disputed. During the subsequent impeachment of President Bill Clinton, for example, the majority and minority reports of the House Judiciary Committee concerning the Committee's impeachment recommendation took different views on when conduct that might traditionally be viewed as private or unrelated to the functions of the presidency constituted an impeachable offense.[241] The House Judiciary Committee report that recommended articles of impeachment argued that perjury by the President was an impeachable offense, even if committed with regard to matters outside his official duties.[242] In contrast, the minority views contained in the report argued that impeachment was reserved for "conduct that constitutes an egregious abuse or subversion of the powers of the executive office."[243] The minority noted that the Judiciary Committee had rejected an article of impeachment against President Nixon alleging that he committed tax fraud, primarily because that "related to the President's private conduct, not to an abuse of his authority as President."[244]
President Bill Clinton and Impeachable Offenses[edit | edit source]
The impeachment of President Bill Clinton stemmed from an investigation that originally centered on financial transactions occurring many years prior to President Clinton taking federal office.[245] Attorney General Janet Reno appointed Robert Fiske, Jr. as a special prosecutor in January 1994 to investigate the dealings of President Clinton and his wife with the "Whitewater" real estate development during the President's tenure as attorney general and then governor of Arkansas.[246]
Following the reauthorization of the Independent Counsel Act in June, the Special Division of the United States Court of Appeals for the District of Columbia Circuit replaced Fiske in August with Independent Counsel Kenneth W. Starr, a former Solicitor General in the George H.W. Bush Administration and federal appellate judge.[247]
During the Whitewater investigation, Paula Jones, an Arkansas state employee, filed a civil suit against President Clinton in May 1994 alleging that he sexually harassed her in 1991 while governor of Arkansas.[248] Lawyers for Jones took depositions of President Clinton at the White House and asked questions about the President's relationship with staffers, including an intern named Monica Lewinsky.[249] Independent Counsel Starr received information alleging that Lewinsky had attempted to influence the testimony of a witness in the Jones litigation,[250] along with tapes of recordings between Monica Lewinsky and former White House employee Linda Tripp.[251] Tripp had recorded conversations between herself and Lewinsky concerning Lewinsky's relationship with the President and hope of obtaining a job outside the White House. Starr presented this information to Attorney General Reno. Reno petitioned the Special Division of the United States Court of Appeals for the District of Columbia Circuit to expand the independent counsel's jurisdiction, and the Special Division issued an order on January 16, 1998, permitting the expansion of Starr's investigation into President Clinton's response to the Paula Jones case.[252] Over the course of the spring and summer a grand jury investigated whether President Clinton committed perjury in his response to the Jones suit and whether he obstructed justice by encouraging others to lie about his relationship with Lewinsky.[253] President Clinton appeared by video before the grand jury and testified concerning the Lewinsky relationship.[254]
Independent Counsel Starr referred his report to the House of Representatives on September 9, 1998, noting that under the independent counsel statute, his office was required to do so because President Clinton engaged in behavior that might constitute grounds for impeachment.[255] The House then voted to open an impeachment investigation into President Clinton's behavior, released the Starr report publicly, and the House Judiciary Committee voted to release the tape of the President's grand jury testimony.[256]
Although the House Judiciary Committee already had conducted several hearings regarding the possibility of impeachment,[257] the Committee did not engage in an independent fact-finding investigation or call any live witnesses to testify about the President's conduct.[258] Instead, the Judiciary Committee largely relied on the Starr report to inform the Committee's own report recommending impeachment, which was released December 16, 1998.[259] The Committee report recommended impeachment of President Clinton on four counts.[260] The first article alleged that President Clinton perjured himself when testifying to a criminal grand jury regarding his response to the Jones lawsuit and relationship with Lewinsky.[261] The second alleged that the President committed perjury during a deposition in the civil suit brought against him by Paula Jones.[262] The third alleged that President Clinton obstructed justice in the suit brought against him by Jones and in the investigation by Independent Counsel Starr.[263] The fourth alleged that the President abused his office by refusing to respond to certain requests for admission from Congress and making untruthful responses to Congress during the investigation into his behavior.[264]
On December 19, 1998, in a lame-duck session, the House voted to approve the first and third articles.[265] After trial in the Senate, the President was acquitted on February 12, 1999.[266] Statements of the Senators entered into the record regarding the impeachment indicate disagreement about what constitutes an impeachable offense for the President and whether Clinton's behavior rose to this level.[267] For instance, Republican Senator Richard G. Luger voted to convict on both articles, noting in his statement the gravity of the "presidential misconduct at issue" and arguing that the case was "not about adultery."[268] Instead, it centered on the obstruction of justice that occurred when the President "lied to a federal grand jury and worked to induce others to give false testimony."[269] For Senator Lugar, the President ultimately "betrayed [the] trust" of the nation through his actions and should be removed from office.[270] In contrast, Republican Senator Olympia Snowe voted to acquit on both articles. In her statement, she admonished the President's "lowly conduct," but concluded there was "insufficient evidence of the requisite untruth and the requisite intent" to establish perjury with regard to the concealment of his relationship with a subordinate; and the perjury charges regarding his relationship with a subordinate concerned statements that were largely "ruled irrelevant and inadmissible in the underlying civil case" which "undermine[d] [their] materiality."[271] She also stated that she thought one of the allegations in the second impeachment article had been proven--the President's attempt to influence the testimony of his personal assistant--but that the proper remedy for this was a criminal prosecution.[272] Indeed, a number of Senators indicated that they did not consider the President's behavior to constitute an impeachable offense because the President's conduct was not of a distinctly public nature.[273] For instance, Democratic Senator Byron L. Dorgan voted to acquit on both articles.[274] He described Clinton's behavior as "reprehensible," but concluded that it did not constitute "a grave danger to the nation."[275]
The significance of the Clinton impeachment experience to informing the understanding of what constitutes an impeachable offense is thus open to debate. One might point to the impeachment articles recommended by the House Judiciary Committee, but not adopted by the full House, as concerning conduct insufficient to establish an impeachable offense. Specifically, the House declined to impeach President Clinton for his alleged perjury in a civil suit against him as well as for alleged untruthful statements made in response to congressional requests.[276] Likewise, some scholars have pointed to the acquittal in the Senate of both impeachment articles that were brought by the House as evidence that the Clinton impeachment articles lacked merit or were adopted on purely partisan grounds.[277] The statements of some of the Senators just mentioned, reasoning that Clinton's conduct did not qualify as an impeachable offense, may provide support for arguments that impeachment is not an appropriate tool to address at least some sphere of conduct by a President not directly tied to his official duties.[278] However, the failure to convict President Clinton might instead simply reflect the failure of the House managers to prove their case,[279] or simply bare political calculation by some Senators.[280] Ultimately, the lessons of the Clinton impeachment experience will be revealed in the future practice of Congress when assessing whether similar conduct if committed by future Presidents is impeachable.
More broadly, the results of the Clinton impeachment revealed perceived problems with the Independent Counsel Act (ICA), the statute that authorized the investigation which sparked the impeachment proceedings.[281] Dating back at least to the 1988 Supreme Court case of Morrison v. Olson, some expressed concerned that the scope of an independent counsel's authority under the ICA, combined with a lack of accountability to the political branches, posed considerable risk of abuse.[282] The statute was permitted to lapse in 1999 amidst bipartisan congressional agreement that the law posed significant problems.[283]
President Donald Trump and Impeachable Offenses[edit | edit source]
President Donald Trump was impeached twice during his single term in office. In each case, he was acquitted on all counts by the Senate.
The first impeachment trial stemmed from a call President Trump had with the President Volodymyr Zelenskyy of Ukraine in which President Trump asked the Ukrainian President to announce two investigations: one involving his potential opponent in the upcoming 2020 presidential election and a second into unsubstantiated allegations that entities within Ukraine had interfered in the 2016 presidential election.[284] At the time of the call, the Office of Management and Budget had frozen $400 million in military aid to Ukraine at the direction of the President.[285] The contents of the call initially came to light through an intelligence community whistleblower report, but a summary of the call was later made public by President Trump.[286]
The House investigation proceeded in two phases. The fact-finding portion of the investigation was primarily handled by the House Intelligence Committee, in cooperation with the Committee on Oversight and Reform and the Committee on Foreign Affairs.[287] The early stage of this phase of the investigation saw some controversy over whether the House must explicitly authorize the initiation of an impeachment investigation. Although the Speaker of the House had announced that the committee investigations constituted an "official impeachment inquiry," the White House counsel objected to the investigations on the ground that the investigation lacked "the necessary authorization for a valid impeachment proceeding" and violated the Due Process Clause.[288] As a result, the President instructed members of his administration not to cooperate with the House's "unconstitutional inquiry."[289]
The House later took action to explicitly approve the impeachment investigation by adopting a resolution authorizing the House committees "to continue their ongoing investigations as part of the existing House of Representatives inquiry into whether sufficient grounds exist . . . to impeach Donald John Trump."[290] Nevertheless, the White House and other Executive Branch offices generally refused to comply with the House investigators requests for information, including subpoenas. Some Executive Branch officials, however, made the individual determination to cooperate with the impeachment inquiry and, as a result, the Intelligence Committee was able to hold a number of investigative hearings and issue a report outlining their findings. The record established in the fact finding phase was then provided to the Judiciary Committee.
Phase two of the impeachment investigation was conducted by the Judiciary Committee. This phase focused on whether the President's conduct, as uncovered in the fact finding phase of the inquiry, constituted an impeachable offense.[291] Following a series of hearings, the Committee recommended two articles of impeachment against the President, both of which were ultimately approved by the House. The first charged the President with abuse of power, alleging that he had used the powers of his office to solicit Ukraine's interference in the 2020 election and had conditioned official acts, such as the release of military aid to Ukraine and a White House visit, on President Zelenskyy agreeing to announce the investigations.[292] "President Trump," the article alleged, "engaged in this scheme or course of conduct for corrupt purposes in pursuit of personal political benefit."[293] The second article charged the President with obstruction of the House impeachment investigation by directing the "unprecedented, categorical, and indiscriminate defiance of subpoenas issued by the House of Representatives."[294] "This abuse of office," the article alleged, was "subversive of constitutional government" and "nullif[ied] a vital constitutional safeguard vested solely in the House of Representatives."[295]
Although the impeachment articles were adopted by the House on December 18, 2019, the managers were not appointed and the articles not delivered to the Senate until January 15, 2020.[296]
The Senate trial was characterized by deep partisan divides and complicated disagreements over questions of law and fact, including presidential motive. But one clear constitutional conflict that arose during the trial involved the proper relationship between impeachment and criminal law. Trial briefs and debate made clear that the House managers and President Trump's attorneys reached very different conclusions on the question of whether "high crimes and misdemeanors" require evidence of a criminal act or other legal violation.[297] The House, consistent with past impeachment practice, asserted that for purposes of Article II "high Crimes and Misdemeanors" "need not be indictable criminal offenses."[298] In response, however, the President's attorneys asserted that an "impeachable offense must be a violation of established law," and that the articles "fail[ed] to allege any crime or violation of law whatsoever, let alone 'high Crimes and Misdemeanors,' as required by the Constitution."[299] The acquittal provided no clear resolution to these conflicting positions, but the debate over a link between illegal acts and impeachable acts appears to have had some impact on individual Senators. Indeed, the House's managers' failure to allege an explicit criminal act appears, along with criticism of the House investigation and failure of the House to prove its case, to have been among the primary reasons given for acquittal.[300]
As the Senate trial proceeded, it became apparent that a major point of contention would be whether the Senate would call its own witnesses. The House managers asked that the Senate authorize subpoenas for relevant Executive Branch documents and for testimony from various White House officials including former National Security Advisor John Bolton.[301] With only forty-nine Senators voting in favor, the Senate chose not to approve that request, and the record was limited to the evidence provided by the House.[302]
Ultimately, the Senate acquitted President Trump on both counts. Article I failed by a vote of 48-52 while Article II failed by a vote of 47-53.[303]
The second Trump impeachment occurred a year later in the waning days of the Trump presidency following the events on January 6, 2021, at the U.S. Capitol in which some supporters of President Trump attempted to disrupt the congressional certification of the 2020 presidential election as having been won by Joseph Biden. The House moved quickly following those events. Passing on an investigation, the Judiciary Committee staff compiled publicly available evidence relating to the President's actions on January 6 and within one week had introduced and approved a single article of impeachment charging the President with "incitement to insurrection."[304] Specifically, the article alleged that in the months running up to January 6th the President had consistently "issued false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the American people."[305] He then repeated those claims when addressing a crowd on January 6, and "willfully made statements that, in context, encouraged--and foreseeably resulted in--lawless action at the Capitol. . . ."[306] Notably, although the House ultimately impeached President Trump prior to the expiration of his term, the Senate did not commence a trial until after President Trump had left office.[307]
The Senate trial saw the chamber make two important threshold determinations regarding trials of former Presidents. First, although the Constitution clearly requires the Chief Justice to preside over presidential impeachment trials, the Senate implicitly determined that that requirement does not extend to the trial of a former President. At the opening of the trial, Senator Patrick Leahy, President pro tempore of the United States Senate, was sworn in as presiding officer without objection.[308]
The Senate also made the threshold determination of whether it had the constitutional authority to try a former President. After briefing and debate on the question of whether the Senate had jurisdiction over a former President for acts that occurred during his tenure in office, the Senate explicitly determined by a vote of 56-44 that it did.[309] Thus a majority of Senators, as they have on previous occasions, determined that former officials may be tried by the Senate and, though not removable, remain subject to disqualification from holding future office if convicted.[310]
With respect to whether the President had committed an impeachable offense, the main substantive question during the trial arguably revolved around the proper application of the First Amendment. The former President's attorneys invoked the First Amendment as a defense to the impeachment charge, asserting that free speech protections apply and limit the conduct that can be considered an impeachable offense.[311] The President's political statements at the rally, his attorneys argued, constituted "core free speech under the First Amendment" and thus not an impeachable offense.[312] The House managers disagreed, arguing that "The First Amendment has no application in an impeachment proceeding" because impeachment "does not seek to punish unlawful speech, but instead to protect the Nation from a President who violated his oath of office and abused the public trust."[313] Moreover, even if the First Amendment did restrict the impeachment power, "it still would not protect President Trump's calls to violence," which the managers asserted fell within the well-established category of unprotected speech "directed to inciting or producing imminent lawless action."[314] In the end, the First Amendment arguments made by the former President's attorneys do not appear to have had an impact on Senators, as only one Senator who voted to acquit the former President mentioned the First Amendment in the formal explanation of his vote.[315]
Although a majority of Senators voted to convict, former President Trump was ultimately acquitted by a vote of 57-43.[316]
Judicial Impeachments[edit | edit source]
Congress has impeached federal judges with comparatively greater frequency in recent decades, and some of these impeachments appear to augur important consequences for the practice in the future. In particular, within three years in the 1980s the House voted to impeach three federal judges, each occurring after a criminal trial of the judge. One impeached federal judge was not barred from future office and subsequently was elected to serve in the House of Representatives, the body that earlier had impeached him.[317] Another judge challenged the adequacy of his impeachment trial in a case that ultimately reached the Supreme Court, which ruled that the case was non-justiciable.[318]
The House of Representatives impeached federal district judge Harry E. Claiborne in 1986, following his criminal conviction and subsequent imprisonment for providing false statements on his tax returns.[319] Despite his incarceration, Judge Claiborne did not resign his seat and continued to collect his judicial salary.[320] The House unanimously voted in favor of four articles of impeachment against him.[321] The first two articles against Judge Claiborne simply laid out the underlying behavior that had given rise to his criminal prosecution.[322] The third article "rest[ed] entirely on the conviction itself" and stood for the principle that "by conviction alone he is guilty of 'high crimes' in office."[323] The fourth alleged that Judge Claiborne's actions brought the "judiciary into disrepute, thereby undermining public confidence in the integrity and impartiality of the administration of justice" which amounted to a "misdemeanor."[324]
The Senate impeachment trial of Judge Claiborne was the first in which that body used a committee to take evidence. Rather than conducting a full trial with the entire Senate, the committee took testimony, received evidence, and voted on pretrial motions regarding evidence and discovery.[325] The committee then reported a transcript of the proceedings to the full Senate, without recommending whether impeachment was warranted.[326] The Senate voted to convict Judge Claiborne on the first, second, and fourth articles.[327]
In 1988, the House impeached a federal district judge who had been indicted for a criminal offense but acquitted. Judge Alcee L. Hastings was acquitted in a criminal trial where he was accused of conspiracy and obstruction of justice for soliciting a bribe in return for reducing the sentences of two convicted felons.[328] After his acquittal, a judicial committee investigated the case and concluded that Judge Hasting's behavior might merit impeachment. The Judicial Conference (a national entity composed of federal judges that reviews investigations of judges and is authorized to refer recommendations to Congress) eventually referred the matter to the House of Representatives, noting that impeachment might be warranted.[329] The House of Representatives approved seventeen impeachment articles against Judge Hastings, including for perjury, bribery, and conspiracy.[330]
Judge Hastings objected to the impeachment proceedings as "double jeopardy" because he had already been acquitted in a previous criminal proceeding.[331] The Senate, however, rejected his motion to dismiss the articles against him.[332] The Senate again used a trial committee to receive evidence. That body voted to convict and remove Judge Hastings on eight articles, but did not vote to disqualify him from holding future office.[333] Judge Hastings was later elected to the House of Representatives.[334]
Before the trial of Judge Hastings even began in the Senate, the House impeached Judge Walter L. Nixon. Judge Nixon was convicted in a criminal trial of perjury to a grand jury and imprisoned.[335] Following an investigation by the House Judiciary Committee's Subcommittee on Civil and Constitutional Rights, the Judiciary Committee reported a resolution to the full House recommending impeachment on three articles.[336] The full House approved three articles of impeachment, the first two involving lying to a grand jury and the last for undermining the integrity of and bringing disrepute on the federal judicial system.[337] The Senate convicted Judge Nixon on the first two articles but acquitted him on the third.[338]
Judge Nixon challenged the Senate's use of a committee to receive evidence and conduct hearings. He brought a suit in federal court arguing that the use of a committee, rather than the full Senate, to take evidence violated the Constitution's provision that the Senate "try" all impeachments.[339] The Supreme Court ultimately rejected his challenge in Nixon v. United States, ruling that the issue was a non-justiciable political question because the Constitution grants the power to try impeachments "in the Senate and nowhere else"; and the word "try" "lacks sufficient precision to afford any judicially manageable standard of review of the Senate's actions."[340] As a result of this decision, impeachment proceedings appear largely immune from judicial review.[341]
Two judges have been impeached in the twenty-first century. As with the three impeachments of judges in the 1980s, the first followed a criminal indictment. District Judge Samuel B. Kent pled guilty to obstruction of justice for lying to a judicial investigation into alleged sexual misconduct and was sentenced to 33 months in prison.[342] The House impeached Judge Kent for sexually assaulting two court employees, obstructing the judicial investigation of his behavior, and making false and misleading statements to agents of the Federal Bureau of Investigation (FBI) about the activity.[343] Judge Kent resigned his office before a Senate trial.[344] The Senate declined to conduct a trial following his resignation.
Although the four previous impeachments of federal judges followed criminal proceedings, the most recent impeachment did not.[345] In 2010, Judge G. Thomas Porteous Jr. was impeached for participating in a corrupt financial relationship with attorneys in a case before him, and engaging in a corrupt relationship with bail bondsmen whereby he received things of value in return for helping the bondsmen develop corrupt relationships with state court judges.[346] Judge Porteous was the first individual impeached by the House[347] and convicted by the Senate based in part upon conduct occurring before he began his tenure in federal office. The first and second articles of impeachment each alleged misconduct by Judge Porteous during both his state and federal judgeships.[348] The fourth alleged that Judge Porteous made false statements to the Senate and FBI in connection with his nomination and confirmation to the U.S. District Court for the Eastern District of Louisiana.[349]
Judge Porteous's filings in answer to the articles of impeachment argued that conduct occurring before he was appointed to the federal bench cannot constitute impeachable behavior.[350] The House Managers' replication, or reply to this argument, argued that Porteous's contention had no basis in the Constitution.[351] On December 8, 2010, he was convicted on all four articles, removed from office, and disqualified from holding future federal offices.[352] The first article, which included conduct occurring before he was a federal judge, was affirmed 96-0.[353] The second article, approved 90-6, alleged that he lied to the Senate in his confirmation hearing to be a federal judge.[354] A number of Senators explicitly adopted the reasoning supplied by expert witness testimony before the House that the crucial issue regarding the appropriateness of impeachment was not the timing of the misconduct, but "whether Judge Porteous committed such misconduct and whether such misconduct demonstrates the lack of integrity and judgment that are required in order for him to continue to function" in office.[355]
Senator Claire McCaskill explained in her statement entered in the Congressional Record that Judge Porteous's argument for an "absolute, categorical rule that would preclude impeachment and removal for any pre-federal conduct" should be rejected.[356] "That should not be the rule," she noted, "any more than allowing impeachment for any pre-federal conduct that is entirely unrelated to the federal office."[357] Senator Patrick Leahy agreed, noting that he "reject[ed] any notion of impeachment immunity [for pre-federal behavior] if misconduct was hidden, or otherwise went undiscovered during the confirmation process, and it is relevant to a judge's ability to serve as an impartial arbiter."[358]
- ↑ The Constitution contains a number of provisions that are relevant to the impeachment of federal officials. Article I, Section 2, Clause 5 grants the sole power of impeachment to the House of Representatives; Article I, Section 3, Clause 6 assigns the Senate sole responsibility to try impeachments; Article I, Section 3, Clause 7 provides that the sanctions for an impeached and convicted individual are limited to removal from office and potentially a bar from holding future office, but an impeachment proceeding does not preclude criminal liability; Article II, Section 2, Clause 1 provides that the President enjoys the pardon power, but it does not extend to cases of impeachment; and Article II, Section 4 defines which officials are subject to impeachment and what kinds of misconduct constitute impeachable behavior. Article III does not mention impeachment expressly, but Section 1, which establishes that federal judges shall hold their seats during good behavior, is widely understood to provide the unique nature of judicial tenure. And Article III, Section 2, Clause 3 provides that trials, "except in Cases of Impeachment, shall be by jury."
- ↑ Art. II, Section 4 Impeachment.
- ↑ See The Federalist Nos. 65, 81 (Alexander Hamilton) (Rossiter ed., 1961).
- ↑ Art. II, Section 4 Impeachment; see Art. II, Sec. 4: Jurisprudence on Impeachable Offenses (1865-1900).
- ↑ See 167 Cong. Rec. S609 (daily ed. Feb. 9, 2021) (determining that "Donald John Trump is subject to the jurisdiction of a Court of Impeachment for acts committed while President of the United States, notwithstanding the expiration of his term in that office"); Jared P. Cole & Todd Garvey, Cong. Rsch. Serv., R46013, Impeachment and the Constitution 47-48 (2019).
- ↑ See Art. II, Sec. 4: Jurisprudence on Impeachable Offenses (1789-1860).
- ↑ 2 Joseph Story, Commentaries on the Constitution of the United States § 762 (1833) ("Not but that crimes of a strictly legal character fall within the scope of the power, (for, as we shall presently see, treason, bribery, and other high crimes and misdemeanours are expressly within it;) but that it has a more enlarged operation, and reaches, what are aptly termed, political offences, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties of political office. These are so various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law."); id. §§ 795-98.
- ↑ See Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis x-xi (2000). See also Story, supra note here, at § 762.
- ↑ Art. II, Section 4 Impeachment.
- ↑ Statements from at least one delegate indicate that participants at the Constitutional Convention assumed that judges were subject to impeachment. See 2 The Records of the Federal Convention of 1787, at 66 (Max Farrand ed., 1911) (describing Rufus King's observation that judges would be impeachable because they hold their office during good behavior).
- ↑ The Federalist No. 66 (Alexander Hamilton).
- ↑ Id. at No. 79; Id. at No. 81; see generally Art. III, Sec. 1: Overview of Good Behavior Clause et seq.
- ↑ See, e.g., Va. Const. of 1776, ¶ 14 (providing that the chief executive of the state could only be impeached after leaving office); Del. Const. of 1776 art. 23 (same).
- ↑ See List of Individuals Impeached by the House of Representatives, U.S. House of Representatives, [1] (last visited June 7, 2023).
- ↑ See 3 Asher C. Hinds, Hinds' Precedents of the House of Representatives of the United States §§ 2444-68 (1907) [hereinafter Hinds]; see infra Art. II, Sec. 4: Jurisprudence on Impeachable Offenses (1865-1900).
- ↑ Judicial interpretations of which positions qualify as officers under the Appointments Clause may shed light on which Executive Branch positions are filled by civil officers that are subject to impeachment. See Akhil Reed Amar, On Impeaching Presidents, 28 Hofstra L. Rev. 291, 303 (1999); Michael J. Broyde & Robert A. Schapiro, Impeachment and Accountability: The Case of the First Lady, 15 Const. Comment. 479 (1998). The Supreme Court, in interpreting those provisions, has distinguished between officers, who exercise "significant authority" of the United States, Buckley v. Valeo, 424 U.S. 1, 126 (1976), and employees, or non-officers who are "lesser functionaries subordinate to the officers of the United States." Id. at 126 n.162. The Court has further recognized the Constitution's distinction between principal officers, who must be appointed by the President and confirmed by the Senate, and inferior officers, whose appointment may be placed in the President, department heads, or the courts of law. Edmond v. United States, 520 U.S. 651, 663 (1997). Assuming this line of cases serves as a guide in deciding who is a civil officer subject to impeachment, it appears that "employees," as non-officers, are not subject to impeachment, while principal officers, such as the head of a cabinet-level Executive department, are. In between these two categories, historical practice does not indicate whether an inferior officer is subject to impeachment, as the House has never impeached such an individual.
- ↑ For a historical and textual interpretation of whether a former official is subject to trial for impeachment, see Jared P. Cole & Todd Garvey, Cong. Rsch. Serv., LSB10565, The Impeachment and Trial of a Former President (2021).
- ↑ Art. II, Section 4 Impeachment; Proceedings of the United States Senate in the Impeachment Trial of Donald John Trump, Part II, S. Doc. No. 117-2, 117th Cong. 122-32 (2021).
- ↑ 3 Joseph Story, Commentaries on the Constitution of the United States § 801 (1833).
- ↑ Id. at § 788.
- ↑ Proceedings of the United States Senate in the Impeachment Trial of Donald John Trump, Part I, S. Doc. No. 117-2, 117th Cong. 70-97 (2021).
- ↑ Proceedings of the United States Senate in the Impeachment Trial of Donald John Trump, Part III, S. Doc. No. 117-2, 117th Cong. 101 (2021).
- ↑ Id. at 191.
- ↑ See Cole & Garvey, supra note here (discussing the Senate's decision to exercise jurisdiction in the Belknap impeachment); 167 Cong. Rec. S609 (daily ed. Feb. 9, 2021).
- ↑ See Art. II, Sec. 4: Jurisprudence on Impeachable Offenses (1789-1860); The Federalist No. 66 (Alexander Hamilton).
- ↑ Art. II, Section 3 Duties.
- ↑ Id. art. I, § 5.
- ↑ Id. § 6.
- ↑ See Dep't of Just., Off. of Legal Couns., Legal Aspects of Impeachment: An Overview 55 n.31 (1974) ("The Senator William Blount precedent of 1798 does seem to have determined that the Senate will not try its members on an impeachment."); David Currie, The Constitution in Congress: The Federalist Period 1789-1801 275-281 (1997).
- ↑ 3 Hinds, supra note here, at §§ 2300-02.
- ↑ Id. at § 2318.
- ↑ See Charles W. Johnson, John V. Sullivan, and Thomas J. Wickham, Jr., House Practice: A Guide to the Rules, Precedents and Procedures of the House 604-06 (2017); Staff of H. Comm. on the Judiciary, 93d Cong., Impeachment, Selected Materials 692 (Comm. Print 1973); Motions Sys. Corp. v. Bush, 437 F.3d 1356, 1373 (Fed. Cir. 2006) ("This principle has been accepted since 1799, when the Senate, presented with articles of impeachment against Senator William Blount, concluded after four days of debate that a Senator was not a civil officer for purposes of the Impeachment Clause."); Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 48 (2000). In addition, in contrast to English practice, impeachment does not extend to private citizens or state officers, but is limited to officers of the federal government. 3 Hinds, supra note here, at §§ 2007, 2315. No military officer has ever been impeached, which is consistent with the views of some early constitutional commentary that military officers are not subject to impeachment. Justice Joseph Story has suggested that "civil officers" was not intended to cover military officers. See 2 Joseph Story, Commentaries on the Constitution of the United States § 789 (1833) (concluding that "[t]he sense, in which [civil] is used in the Constitution, seems to be in contradistinction to military, to indicate the rights and duties relating to citizens generally, in contradistinction to those of persons engaged in the land or naval service of the government").
- ↑ See Art. II, Sec. 4: Historical Background on Impeachable Offenses and accompanying notes.
- ↑ See Charles Black, Impeachment 33-36 (1974).
- ↑ Id.
- ↑ See, e.g., H. Comm. on the Judiciary, Impeachment of Richard M. Nixon, President of the United States, H.R. Rep. No. 93-1305, 93d Cong. 220-26 (1974); H. Res. 370, 98th Cong. (1983) (alleging that President committed high crimes or misdemeanors by ordering the invasion of Grenada).
- ↑ The issue of due process in the House impeachment investigation was raised by the President's attorneys in the first Trump impeachment trial. See Proceedings of the United States Senate in the Impeachment Trial of Donald John Trump, Part II, S. Doc. No. 117-2, 117th Cong. 175-80 (2021). The managers asserted that the argument that the President had been denied due process in the House impeachment investigation had "no grounding in law or fact." Proceedings of the United States Senate in the Impeachment Trial of Donald John Trump, Part III, S. Doc. No. 117-2, 117th Cong. 211 (2021). For a discussion of the application of the Due Process Clause in House and Senate impeachment proceedings see Todd Garvey, Cong. Rsch. Serv., R45983, Congressional Access to Information in an Impeachment Investigation 17 n.118 (2019).
- ↑ Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 41 (2000).
- ↑ Hastings v. United States, 802 F. Supp. 490, 502 (D.D.C. 1992).
- ↑ Hastings v. United States, 988 F.2d 1280 (D.C. Cir. 1993).
- ↑ Nixon v. United States, 506 U.S. 224 (1993).
- ↑ Hastings v. United States, 837 F. Supp. 3 (D.D.C. 1993).
- ↑ Gerhardt, supra note here, at 41.
- ↑ Peter Hoffer & N.E.H. Hull, Impeachment in America, 1635-1805 213 (1984).
- ↑ Gerhardt, supra note here, at 41
- ↑ See Art. III, Section 3 Treason ("Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort."); 18 U.S.C. § 201 (bribery of public officials and witnesses). See also Act of April 30, 1790 § 21, 1 Stat. 112 (establishing bribery as a federal criminal offense).
- ↑ See Charles Black, Impeachment 27 (1974).
- ↑ The Federalist No. 65 (Alexander Hamilton); Peter Hoffer & N.E.H. Hull, Impeachment in America, 1635-1805 59-95 (1984).
- ↑ See Nixon v. United States, 506 U.S. 224, 237-38 (1993) (ruling that a challenge to the Senate's use of a trial committee to take evidence posed a nonjusticiable political question).
- ↑ 2 Joseph Story, Commentaries on the Constitution of the United States § 795 (1833) ("Again, there are many offences, purely political, which have been held to be within the reach of parliamentary impeachments, not one of which is in the slightest manner alluded to in our statute book. And, indeed, political offences are of so various and complex a character, so utterly incapable of being defined, or classified, that the task of positive legislation would be impracticable, if it were not almost absurd to attempt it."); id. at § 798 ("In examining the parliamentary history of impeachments, it will be found, that many offences, not easily definable by law, and many of a purely political character, have been deemed high crimes and misdemeanours worthy of this extraordinary remedy.").
- ↑ See Cong. Globe, 40th Cong. 1400 (1868) (impeaching President Andrew Johnson for violating the Tenure of Office Act); 132 Cong. Rec. H4710-22 (daily ed. July 22, 1986) (impeaching Judge Harry E. Claiborne for providing false information on federal income tax forms); 156 Cong. Rec. 3155-57 (2010) (impeaching Judge G. Thomas Porteous for engaging in a corrupt relationship with bail bondmen where he received things of value in return for helping bondsman develop relationships with state judges).
- ↑ For more on the historical background of the impeachment clauses, see Art. III, Sec. 1: Historical Background on Good Behavior Clause; Art. I, Sec. 2, Cl. 5: Historical Background on Impeachment; Art. I, Sec. 3, Cl. 6: Historical Background on Impeachment Trials.
- ↑ See The Federalist No. 65 (Alexander Hamilton); Raoul Berger, Impeachment: The Constitutional Problems 54 (1973); H. Comm. on the Judiciary, Constitutional Grounds for Presidential Impeachment, 93d Cong. 4 (Comm. Print 1974) [hereinafter Constitutional Grounds].
- ↑ Berger, supra note here, at 59; Constitutional Grounds, supra note here, at 4. The availability of impeachment in England appears to have depended on whether the offense endangered the government or society. See Peter Hoffer & N.E.H. Hull, Impeachment in America, 1635-1805 3 (1984).
- ↑ Constitutional Grounds, supra note here, at 4-5.
- ↑ Id. (citing John Rushworth, The Tryal of Thomas Earl of Stafford, in 8 Historical Collections 8 (1686)).
- ↑ Id. at 4-6.
- ↑ Berger, supra note here, at 67.
- ↑ See Hoffer & Hull, supra note here, at 15-26.
- ↑ See id. at 68-95; see, e.g., Mass. Const. of 1780 art. VIII, § 2; art. VI, § 3; New York Const. of 1777 art. XXXIII.
- ↑ See Gordon S. Wood, The Creation of the American Republic 141 (1969); see, e.g., N.Y. Const. of 1777 arts. XXXII-XXXIII (providing that impeachments be tried before a court composed of Senators, judges of the Supreme Court, and the chancellor).
- ↑ See Michael J. Gerhardt, Putting the Law of Impeachment in Perspective, 43 St. Louis U. L.J. 905, 908-12 (1999).
- ↑ 15 The American and English Encyclopedia of Law 1061, 1064 (David S. Garland & Lucius P. McGehee eds., 1900).
- ↑ Id. at 1066. Further, the English House of Lords could convict on a bare majority, while the Framers required a two-thirds vote of the Senate to remove an officer. Id. at 1071. The House of Lords could also require any punishment upon conviction, while the federal Constitution limits the results of impeachment to removal from office and, potentially, disqualification from holding federal office in the future. Id. at 1072. Finally, British judges could be removed for a variety of reasons, while impeachment is the sole remedy to remove federal judges under the Constitution.
- ↑ 15 The American and English Encyclopedia of Law, supra note here, at 1071-72.
- ↑ See Art. II, Sec. 2, Clause 1 Military, Administrative, and Clemency (providing that the President "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment").
- ↑ 2 James Madison, The Debates in the Federal Convention of 1787 Which Framed the Constitution of the United States of America 508 (Gaillard Hunt & James Brown Scott eds., 1987).
- ↑ 2 The Records of the Federal Convention of 1787, at 550 (Max Farrand ed., 1911) [hereinafter Farrand's Records; see Michael J. Gerhardt, The Constitutional Limits to Impeachment and Its Alternatives, 68 Tex. L. Rev. 1, 14-15 (1989).
- ↑ Gerhardt, Constitutional Limits, supra note here, at 29; Constitutional Grounds, supra note here, at 11; Charles Black, Impeachment 29 (1974).
- ↑ 2 Farrand's Records, supra note here, at 550; Black, supra note here, at 29-30.
- ↑ 2 Farrand's Records, supra note here, at 64-65; Black, supra note here, at 28.
- ↑ Black, supra note here, at 30.
- ↑ Constitutional Grounds, supra note here, at 7; Hoffer & Hull, supra note here, at 113-15.
- ↑ Constitutional Grounds, supra note here, at 7; Hoffer & Hull, supra note here, at 113-15.
- ↑ 2 The Records of the Federal Convention of 1787, supra note here, at 550.
- ↑ Id.
- ↑ See Art. II, Sec. 4: Historical Background on Impeachable Offenses and accompanying notes.
- ↑ See The Federalist No. 65 (Alexander Hamilton).
- ↑ Id.
- ↑ Art. II, Sec. 2, Clause 2 Advice and Consent.
- ↑ Id. art. III, § 1.
- ↑ See The Federalist No. 66 (Alexander Hamilton).
- ↑ See Id. No. 81.
- ↑ See Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 19 (2000).
- ↑ 4 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 113 (Jonathan Elliot ed., 1827) [hereinafter Elliot's Debates] (North Carolina, statement of James Iredell).
- ↑ Id. at 127.
- ↑ Id. at 126.
- ↑ Id. See Gerhardt, supra note here, at 19.
- ↑ See Id.
- ↑ 1 Elliot's Debates, supra note here, at 500.
- ↑ 2 id. at 401.
- ↑ David Robertson, Debates and Other Proceedings of the Convention of Virginia 345 (2d ed. 1805).
- ↑ James Wilson, Lectures on Law, reprinted in, 1 The Works of James Wilson 426 (Robert Green McCloskey ed., 1967).
- ↑ Id. at 408.
- ↑ Id.
- ↑ Gary L. McDowell, High Crimes and Misdemeanors: Recovering the Intentions of the Founders, 67 Geo. Wash. L. Rev. 626, 638 (1999); Berger, supra note here, at 59-61.
- ↑ The Federalist No. 65 (Alexander Hamilton).
- ↑ Id.
- ↑ Compare H.R. Rep. No. 105-830, 105th Cong. 110-18 (1998) (majority views), with id. at 204 (minority views). See Gary L. McDowell, High Crimes and Misdemeanors: Recovering the Intentions of the Founders, 67 Geo. Wash. L. Rev. 626, 627 (1999); Laurence H. Tribe, Defining "High Crimes and Misdemeanors": Basic Principles, 67 Geo. Wash. L. Rev. 712, 717 (1999).
- ↑ 1 Stat. 381, 384 § 5 (June 5, 1794).
- ↑ See Buckner F. Melton, The First Impeachment 60-103 (1998); Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 48 (2000); David Currie, The Constitution in Congress: The Federalist Period 1789-1801 275-81 (1997).
- ↑ Emily F.V. Tassel & Paul Finkelman, Impeachable Offenses: A Documentary History from 1787 to the Present 87-88 (1999).
- ↑ Gerhardt, supra note here, at 48; see Art. I, Section 5 Proceedings.
- ↑ Currie, supra note here, at 276.
- ↑ Id. (noting Article I, Section 9 and Article I, Section 3).
- ↑ Tassel & Finkelman, supra note here, at 87-88; Melton, supra note here, at 104-89.
- ↑ Currie, supra note here, at 277.
- ↑ Id. at 279.
- ↑ Id.
- ↑ 8 Annals of Cong. 2317 (1799).
- ↑ Peter Hoffer & N.E.H. Hull, Impeachment in America, 1635-1805 155 (1984). 9 Annals of Cong. 2648-49 (1799). Currie, supra note here, at 2780-81. While the Senate's vote to dismiss for lack of jurisdiction might also be based on the fact that the Senator had been expelled from Congress, and therefore did not occupy an "office," it is generally accepted that the Senate's decision stands for the proposition that impeachment does not extend to Members of Congress. See Charles W. Johnson, John V. Sullivan, and Thomas J. Wickham, Jr., House Practice: A Guide to the Rules, Precedents and Procedures of the House 604-06 (2017); Staff of H. Comm. on the Judiciary, Impeachment, Selected Materials, 93d Cong. 692 (Comm. Print 1973); Motions Sys. Corp. v. Bush, 437 F.3d 1356, 1373 (Fed. Cir. 2006) ("This principle has been accepted since 1799, when the Senate, presented with articles of impeachment against Senator William Blount, concluded after four days of debate that a Senator was not a civil officer for purposes of the Impeachment Clause.").
- ↑ Hoffer & Hull, supra note here, at 181.
- ↑ Id. at 181.
- ↑ See 12 Annals of Cong. 642 (1803); 13 Annals of Cong. 380 (1803).
- ↑ See 13 Annals of Cong. 368 (1804); Hoffer & Hull, supra note here, at 208, 216-17.
- ↑ Eleanore Bushnell, Crimes, Follies, and Misfortunes: The Federal Impeachment Trials 45-46 (1992).
- ↑ Hoffer & Hull, supra note here, at 211-13.
- ↑ Bushnell, supra note here, at 48-51. Scholars have noted that the Senate vote in favor of admitting evidence of insanity likely stemmed from two opposing reasons. The minority party Federalists--of which Judge Pickering was a member--considered evidence of insanity a reason to acquit the judge because it was not an impeachable offense. The majority party Republicans, in contrast, considered insanity a reason to remove him from the bench. Id. at 48-49.
- ↑ Id. at 47.
- ↑ 13 Annals of Cong. 367 (1804); Bushnell, supra note here, at 53-54.
- ↑ Bushnell, supra note here, at 53-54.
- ↑ 13 Annals of Cong. 1180 (1804); Bushnell, supra note here, at 60.
- ↑ Hoffer & Hull, supra note here, at 228-138.
- ↑ Bushnell, supra note here, at 63.
- ↑ Josh Chafetz, Congress's Constitution 108 (2017).
- ↑ Impeachment, Selected Materials, supra note here, at 133-35.
- ↑ Bushnell, supra note here, at 63-73.
- ↑ Bushnell, supra note here, at 67-84; see Gerhardt, supra note here, at 181.
- ↑ Bushnell, supra note here, at 84.
- ↑ Tassel & Finkelman, supra note here, at 103.
- ↑ 14 Annals of Cong. 664-69 (1805); Tassel & Finkelman, supra note here, at 103.
- ↑ Bushnell, supra note here, at 82-87.
- ↑ H. Comm. on the Judiciary, Impeachment of Richard M. Nixon, President of the United States, H.R. Rep. No. 93-1305, 93d Cong. 362-72 (1974) (minority views); 3 Lewis Deschler, Precedents of the United States of the House of Representatives, H.R. Doc. No. 94-661, ch. 14 § 3.8 (1974).
- ↑ See David P. Currie, The Constitution in Congress: the Most Endangered Branch, 1801-1805, 33 Wake Forest L. Rev. 219, 259 (1998); William H. Rehnquist, Grand Inquests: The Historic Impeachments 114 (1992); Chafetz, supra note here, at 150. But see Chafetz, supra note here, at 109 (arguing that Justice Chase returned to the bench "humbled" and that one result of the affair was that the Marshall Court "made its peace with Republican politics").
- ↑ See Michael J. Gerhardt, Putting the Law of Impeachment in Perspective, 43 St. Louis U. L.J. 905, 921 (1999).
- ↑ Bushnell, supra note here, at 91.
- ↑ Tassel & Finkelman, supra note here, at 108-09; Bushnell, supra note here, at 92.
- ↑ Tassel & Finkelman, supra note here, at 108-09.
- ↑ Id.
- ↑ Id.
- ↑ 6 Cong. Deb. 818-19 (1830).
- ↑ Bushnell, supra note here, at 91-113.
- ↑ 7 Cong. Deb. 45 (1831).
- ↑ See Act of Mar. 2, 1831, ch. 99, 4 Stat. 487.
- ↑ Tassel & Finkelman, supra note here, at 114-16.
- ↑ 2 Asher C. Hinds, Hinds' Precedents of the House of Representatives of the United States §§ 2385-97 (1907).
- ↑ Bushnell, supra note here, at 115.
- ↑ Id.
- ↑ See William H. Rehnquist, Grand Inquests: The Historic Impeachments 185-98 (1992).
- ↑ Eleanore Bushnell, Crimes, Follies, and Misfortunes: The Federal Impeachment Trials 128 (1992).
- ↑ Id.
- ↑ Emily F.V. Tassel & Paul Finkelman, Impeachable Offenses: A Documentary History from 1787 to the Present 222 (1999)
- ↑ Bushnell, supra note here, at 128.
- ↑ Michael Les Benedict, The Impeachment and Trial of Andrew Johnson 1-25 (1973); Keith Whittington, Constitutional Construction 113-57 (1999).
- ↑ Tassel & Finkelman, supra note here, at 222-23.
- ↑ Tenure of Office Act, Pub. L. No. 39-154, 14 Stat. 430 (1867). Tassel & Finkelman, supra note here, at 224.
- ↑ Tenure of Office Act, Pub. L. No. 39-154, 14 Stat. 430 (1867). See Michael J. Gerhardt, Constitutional Arrogance, 164 U. Pa. L. Rev. 1649, 1663 (2016).
- ↑ Rehnquist, supra note here, at 228.
- ↑ Les Benedict, supra note here, at 92-125.
- ↑ Rehnquist, supra note here, at 230.
- ↑ Cong. Globe, 40th Cong. 1400 (1868).
- ↑ See Tenure of Office Act, ch. 154, § 6, Pub. L. No. 39-154, 14 Stat. 430. Incidentally, such tenure protections were later invalidated as unconstitutional by the Supreme Court. See Myers v. United States, 272 U.S. 52, 106 (1926).
- ↑ Tassel & Finkelman, supra note here, at 226.
- ↑ Id. at 235.
- ↑ Rehnquist, supra note here, at 219-20.
- ↑ Id. at 221.
- ↑ See Akhil Reed Amar, America's Unwritten Constitution (2012).
- ↑ Rehnquist, supra note here, at 221.
- ↑ Id. at 230-31.
- ↑ 3 Asher C. Hinds, Hinds' Precedents of the House of Representatives of the United States § 2443 (1907); see Rehnquist, supra note here, at 234-35.
- ↑ Tassel & Finkelman, supra note here, at 221; Hans L. Trefousse, Impeachment of a President: Andrew Johnson, the Blacks, and Reconstruction 169 (1975).
- ↑ Rehnquist, supra note here, at 240-46.
- ↑ Peter Hoffer & N.E.H. Hull, Impeachment in America, 1635-1805 101 (1984); Michael J. Gerhardt, Putting the Law of Impeachment in Perspective, 43 St. Louis U. L.J. 905, 921-22 (1999).
- ↑ 3 Asher C. Hinds, Hinds' Precedents of the House of Representatives of the United States §§ 2504-05 (1907) [hereinafter Hinds]; Charles W. Johnson, John V. Sullivan, and Thomas J. Wickham, Jr., House Practice: A Guide to the Rules, Precedents and Procedures of the House 608-13 (2017).
- ↑ 3 Hinds, supra note here, at §§ 2504-05.
- ↑ Emily F.V. Tassel & Paul Finkelman, Impeachable Offenses: A Documentary History from 1787 to the Present 119 (1999).
- ↑ See generally Eric Foner, Reconstruction: America's Unfinished Revolution, 1863-1877 (1988).
- ↑ 3 Hinds, supra note here, at §§ 2506-08.
- ↑ Id.
- ↑ Id. at § 2509. For a defense of Judge Durell's actions in the matters in question, see Charles Lane, Edward Henry Durell: A Study in Reputation, 13 Green Bag 2D 153, 153-68 (2010).
- ↑ 3 Hinds, supra note here, at §§ 2444-68; see H. Comm. on the Judiciary, Constitutional Grounds for Presidential Impeachment, 93d Cong. 20 (Comm. Print 1974).
- ↑ Eleanore Bushnell, Crimes, Follies, and Misfortunes: The Federal Impeachment Trials 165 (1992).
- ↑ 3 Hinds, supra note here, at §§ 2444-68.
- ↑ 3 Hinds, supra note here, at §§ 2459-60. Two of the thirty-seven voting "guilty" and twenty-two of the twenty-five voting "not guilty" stated that they believed the Senate lacked jurisdiction in the case. 3 Hinds, supra note here, § 2467.
- ↑ Bushnell, supra note here, at 186.
- ↑ Art. II, Section 4 Impeachment.
- ↑ Bushnell, supra note here, at 170.
- ↑ Revised Statutes of the United States, 2d Edition, Title XIII, Ch. 2 § 551 (1878); Emily F.V. Tassel & Paul Finkelman, Impeachable Offenses: A Documentary History from 1787 to the Present 123-24 (1999).
- ↑ Eleanore Bushnell, Crimes, Follies, and Misfortunes: The Federal Impeachment Trials 191 (1992).
- ↑ 39 Cong. Rec. 248 (1905).
- ↑ Bushnell, supra note here, at 191-92.
- ↑ Id. at 191-93.
- ↑ Tassel & Finkelman, supra note here, at 123-25.
- ↑ 39 Cong. Rec. 3467-72 (1905).
- ↑ Tassel & Finkelman, supra note here, at 132.
- ↑ 48 Cong. Rec. 8904-34 (1912).
- ↑ Tassel & Finkelman, supra note here, at 133.
- ↑ Id. at 134.
- ↑ 49 Cong. Rec. 1438-48 (1913).
- ↑ Bushnell, supra note here, at 221.
- ↑ See The Teapot Dome Scandal, 1922-24, in Congress Investigates: A Critical and Documentary History 460-74 (Roger A. Bruns, David L. Hostetter, Raymond W. Smock, eds., 2011).
- ↑ See McGrain v. Daugherty, 273 U.S. 135, 174-75 (1927) ("We are of opinion that the power of inquiry--with process to enforce it--is an essential and appropriate auxiliary to the legislative function."); Sinclair v. United States, 279 U.S. 263, 295 (1929) (observing that Congress has authority to require disclosures in aid of its constitutional powers).
- ↑ 6 Clarence Cannon, Cannon's Precedents of the House of Representatives of the United States § 536-38 (1936) [hereinafter Cannon].
- ↑ See 62 Cong. Rec. 12,381 (1922); Charges of Hon. Oscar E. Keller Against the Attorney General and the Attorney General's Answers Thereto Before the Committee on the Judiciary, House of Representatives, H. Res. 425, 67th Cong. (1922).
- ↑ S. Res. 157, 68th Cong., 1st Sess. (1924); Investigation of Hon. Harry M. Daugherty, Formerly Attorney General of the United States: Hearings Before the Select Comm. on Investigation of the Att'y Gen., United States Senate, 68th Cong. (1924).
- ↑ See The Teapot Dome Scandal, 1922-24, in Congress Investigates: A Critical and Documentary History 460-74 (Roger A. Bruns, David L. Hostetter, Raymond W. Smock, eds., 2011).
- ↑ 67 Cong. Rec. 6705-55 (1926); 6 Cannon, supra note here, at §§ 544-47.
- ↑ Tassel & Finkelman, supra note here, at 144-46.
- ↑ 76 Cong. Rec. 4913-26 (1933); 6 Cannon, supra note here, at §§ 514-24.
- ↑ Bushnell, supra note here, at 191.
- ↑ Id. at 246.
- ↑ Id. at 245.
- ↑ 77 Cong. Rec. 4064-88 (1933).
- ↑ 80 Cong. Rec. 3066-92 (1936); Tassel & Finkelman, supra note here, at 157.
- ↑ 80 Cong. Rec. 5602-08 (1936); Proceedings of the U.S. Senate in the Trial of Impeachment of Halsted L. Ritter, United States District Judge for the Southern District of Florida, S. Doc. No. 74-200, 74th Cong. 637-38 (1936); Tassel & Finkelman, supra note here, at 158-59.
- ↑ Ritter v. United States, 84 Ct. Cl. 293, 296 (1936), cert. denied, 300 U.S. 668 (1937).
- ↑ Bushnell, supra note here, at 286-87.
- ↑ Ritter v. United States, 84 Ct. Cl. 293, 296 (1936), cert. denied, 300 U.S. 668 (1937).
- ↑ For a more detailed account of the Watergate Scandal, see Stanley I. Kutler, The Wars of Watergate (1990).
- ↑ Carroll Kilpatrick, Nixon Resigns, Wash. Post (Aug. 9, 1974), [2].
- ↑ Kutler, supra note here, at 187-211.
- ↑ Kutler, supra note here, at 323-49; Emily F.V. Tassel & Paul Finkelman, Impeachable Offenses: A Documentary History from 1787 to the Present 255-56 (1999) .
- ↑ Tassel & Finkelman, supra note here, at 255-56; Kutler, supra note here, at 111-16, 351-72.
- ↑ Tassel & Finkelman, supra note here, at 256-57.
- ↑ Jerry Zeifman, Without Honor: Crimes of Camelot and the Impeachment of President Nixon 59 (1995).
- ↑ Carroll Kilpatrick, Nixon Forces Firing of Cox; Richardson, Ruckelshaus Quit, Wash. Post (Oct. 21, 1973), [3].
- ↑ Tassel & Finkelman, supra note here, at 258-59.
- ↑ United States v. Nixon, 418 U.S. 683, 686-87 (1974).
- ↑ Id. at 713-14 (1974).
- ↑ H. Comm. on the Judiciary, Impeachment of Richard M. Nixon, President of the United States, H.R. Rep. No. 93-1305, 93d Cong. 6-11 (1974).
- ↑ Id. at 1-2.
- ↑ Id. at 3-4.
- ↑ Id. at 4.
- ↑ Id. at 217-19.
- ↑ Id. at 221.
- ↑ Id. at 223.
- ↑ Id. at 220-26.
- ↑ Id. at 219.
- ↑ Kilpatrick, Nixon Resigns, supra note here.
- ↑ Michael J. Gerhardt, The Lessons of Impeachment History, 67 Geo. Wash. L. Rev. 603, 604 (1999).
- ↑ Compare H.R. Rep. No. 105-830, at 110-18 (1998), with id. at 204-07 (minority views).
- ↑ See H.R. Rep. No. 105-830, at 108.
- ↑ Id.
- ↑ Id.
- ↑ See Ken Gormley, Death of American Virtue: Clinton vs. Starr 33-114 (2010).
- ↑ Emily F.V. Tassel & Paul Finkelman, Impeachable Offenses: A Documentary History from 1787 to the Present 267 (1999); see generally Whitewater: Timeline, Wash. Post, [4] (1998) (last visited Jan. 24, 2018).
- ↑ Gormley, supra note here, at 143-69. A previous version of the statute under which the independent counsel was appointed was challenged as unconstitutional in Morrison v. Olson. 487 U.S. 654 (1998). The Supreme Court upheld the statute as constitutional. Id. at 685-96.
- ↑ In Clinton v. Jones, 520 U.S. 681, 684 (1997), the Supreme Court held that the President was subject to civil suits in his individual capacity while in office. Id. at 684.
- ↑ Tassel & Finkelman, supra note here, at 268.
- ↑ The Starr Report: Introduction, Wash. Post (1998), [5].
- ↑ See Gormley, supra note here, at 304-06.
- ↑ Id.
- ↑ Tassel & Finkelman, supra note here, at 269.
- ↑ H.R. Rep. No. 105-830, at 28 (1998); The Starr Report: Grounds For Impeachment, No. II, Wash. Post (1998), [6].
- ↑ The Starr Report: Introduction, Wash. Post (1998), [7]; see 28 U.S.C. § 595(c).
- ↑ Tassel & Finkelman, supra note here, at 271.
- ↑ Background and History of Impeachment, Hearing Before the Subcomm. on the Const. of the H. Comm. on the Judiciary, 105th Cong. (1998); Impeachment Inquiry: William Jefferson Clinton, President of the United States, Hearing Before the H. Comm. on the Judiciary, 105th Cong. (1998).
- ↑ Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 176-77 (2000).
- ↑ See H.R. Rep. No. 105-830, at 200-02 (1998) (minority views).
- ↑ H.R. Rep. No. 105-830, at 28.
- ↑ Id. at 2.
- ↑ Id. at 2-3.
- ↑ Id. at 3-4.
- ↑ Id. at 4-5.
- ↑ 144 Cong. Rec. 28,035-113 (1998).
- ↑ 145 Cong. Rec. 2375-78 (1999); Alison Mitchell, Clinton is Acquitted Decisively by Senate on Both Charges, N.Y. Times (Feb. 13, 1999), [8].
- ↑ See Published Closed Door Statements, 145 Cong. Rec. S1471-1637 (daily ed. Feb. 12, 1999); Gerhardt, supra note here, at 175.
- ↑ Proceedings of the United States Senate in the Impeachment Trial of President William Jefferson Clinton, Volume IV: Statements of Senators Regarding the Impeachment Trial, S. Doc. No. 106-4, 106th Cong. 2571-72 (1999).
- ↑ Id.
- ↑ Id. at 2573.
- ↑ Id. at 3002.
- ↑ Id. at 3004.
- ↑ See 145 Cong. Rec. S1471-1637 (daily ed. Feb. 12, 1999); Gerhardt, supra note here, at 175.
- ↑ Clinton Proceedings, supra note here, at 2942.
- ↑ Id.
- ↑ 144 Cong. Rec. 28,110-12 (1998).
- ↑ Randall K. Miller, Presidential Sanctuaries After the Clinton Sex Scandals, 22 Harv. J.L. & Pub. Pol'y 647, 728 (1999) ("President Clinton's acquittal, a constitutional law decision by the Senate--the final arbiter of the impeachment law--will reaffirm Congress's prior 'holdings' that impeachment carries a 'substantiality' requirement. Impeachable offenses are offenses seriously incompatible with the institutions of government or those that substantially impair a president's ability to perform his constitutional duties. President Clinton's conduct falls short of this extraordinarily high threshold."). But see Charles J. Cooper, A Perjurer in the White House?: The Constitutional Case for Perjury and Obstruction of Justice As High Crimes and Misdemeanors, 22 Harv. J.L. & Pub. Pol'y 619, 621 (1999) ("[T]he crimes alleged against the President . . . plainly do involve the derelict violation of executive duties. Those crimes are plainly impeachable offenses.").
- ↑ Michael J. Gerhardt, The Perils of Presidential Impeachment, 67 U. Chi. L. Rev. 293, 300 (2000).
- ↑ See 145 Cong. Rec. S1577 (daily ed. Feb. 12, 1999).
- ↑ Gerhardt, supra note here, at 175-76.
- ↑ Akhil Reed Amar, America's Unwritten Constitution 296 (2012); Gerhardt, supra note here, at 189-91.
- ↑ Morrison v. Olson, 487 U.S. 654, 699-734 (1988) (Scalia, J., dissenting) (asserting that the independent counsel statute created improper incentives for investigations and prevented the President from holding prosecutors accountable) (quoting Brief for Edward H. Levi et. al, as Amici Curiae in Support of Appellees at 11, Morrison v. Olson, No. 87-1279 (Apr. 8, 1988)).
- ↑ See Saikrishna Prakash, The Chief Prosecutor, 73 Geo. Wash. L. Rev. 521, 525-26 (2005) ("In the wake of Kenneth Starr's investigation of several Clinton-era scandals, a bipartisan consensus emerged against the use of independent counsels."); Gerhardt, supra note here, at 189-91; see, e.g., Future of the Independent Counsel Act, S. Governmental Affs. Comm., 106th Cong. 248 (1999) (statement of Janet Reno, Attorney General) ("However, after working with the Act, I have come to believe--after much reflection and with great reluctance--that the Independent Counsel Act is structurally flawed and that those flaws cannot be corrected within our constitutional framework."); id. at 425 (testimony of Kenneth Starr, Independent Counsel) (describing the independent counsel statute as creating a "fourth branch of government" with results that are "structurally unsound [and] constitutionally dubious").
- ↑ H.R. Rep. No. 116-346, at 81-83 (2019).
- ↑ Id. at 82.
- ↑ Id. at 126.
- ↑ See Staff of H. Perm. Select Comm. on Intelligence, H. Comm. on Oversight and Reform, & H. Comm. on Foreign Affairs, The Trump-Ukraine Impeachment Inquiry Report: Report for the H. Perm. Select Comm. on Intelligence Pursuant to H. Res. 660 in Consultation with the H. Comm. on Oversight and Reform and the H. Comm. on Foreign Affairs, 116th Cong. (Comm. Print 2019).
- ↑ Press Release, Nancy Pelosi, Speaker of the House, Pelosi Remarks Announcing Impeachment Inquiry (Sept. 24, 2019), [9].
- ↑ See Letter from Pat Cipollone, White House Counsel, to Nancy Pelosi, Speaker of the House of Representatives, et al. (Oct. 8, 2019) [10].
- ↑ H.R. Res. 660, 116th Cong. (2019).
- ↑ See H.R. Rep. No. 116-346; Report by the Majority Staff of the H. Comm. on the Judiciary, Constitutional Grounds for Presidential Impeachment, 116th Cong. (Comm. Print 2019).
- ↑ H.R. Res. 755, 116th Cong. (2019).
- ↑ Id.
- ↑ Id.
- ↑ Id.
- ↑ H.R. Res. 798, 116th Cong. (2020).
- ↑ Art. II, Section 4 Impeachment.
- ↑ Proceedings of the United States Senate in the Impeachment Trial of President Donald John Trump, Vol. I: Preliminary Proceedings, S. Doc. No. 116-18, 116th Cong. 416 (2020).
- ↑ Id. at 471.
- ↑ See, e.g., Proceedings of the United States Senate in the Impeachment Trial of President Donald John Trump, Vol. IV: Statements of Senators, S. Doc. No. 116-18, 116th Cong. 1914 (2020) (statement of Senator James M. Inhofe) ("Each of the past impeachment cases in the House of Representatives accused Presidents Johnson, Nixon, and Clinton of committing a crime. This President didn't commit a crime."); id. at 1984 (statement of Senator Ted Cruz) ("Indeed, in the Articles of Impeachment they sent over here, they don't allege any crime whatsoever. They don't even allege a single Federal law that the President violated."); id. at 1990 (statement of Senator David Perdue) ("President Trump is the first President ever to face impeachment who was never accused of any crime in these proceedings, whatsoever. These two Articles of Impeachment simply do not qualify as reasons to impeach any President"); id. at 2034 (statement of Senator John Cornyn) ("But they failed to bring forward compelling and unassailable evidence of any crime--again, the Constitution talks about treason, bribery, or other high crimes and misdemeanors; clearly, a criminal standard . . . ."). Other Senators identified the non-existence of a crime as an important factor in their vote, but nevertheless made clear their belief that a crime is not constitutionally required. See, e.g., id. at 1937 (statement of Senator Mitch McConnell) ("Now, I do not subscribe to the legal theory that impeachment requires a violation of a criminal statute, but there are powerful reasons why, for 230 years, every Presidential impeachment did in fact allege a criminal violation."); id. at 2016 (statement of Senator Rob Portman) ("In this case, no crime is alleged. Let me repeat. In the two Articles of Impeachment that came over to us from the House, there is no criminal law violation alleged. Although I don't think that that is always necessary--there could be circumstances where a crime isn't necessary in an impeachment . . . . ").
- ↑ See Proceedings of the United States Senate in the Impeachment Trial of President Donald John Trump, Vol. II: Floor and Trial Proceedings, S. Doc. No. 116-18, 116th Cong. 1498-99 (2020).
- ↑ Id. at 1499.
- ↑ 166 Cong. Rec. S937 (daily ed. Feb. 5, 2020) (acquitting President Trump on Article I by a vote of 48-52); id. at S938 (acquitting President Trump on Article II by a vote of 47-53).
- ↑ See Staff of H. Comm. on the Judiciary, Materials in Support of H. Res. 24 Impeaching Donald John Trump, President of the United States, for High Crimes and Misdemeanors, 116th Cong. (Comm. Print 2021); H.R. Res. 24, 117th Cong. (2021).
- ↑ Id.
- ↑ Id.
- ↑ See Proceedings of the United States Senate in the Impeachment Trial of Donald John Trump, Vol. I: Preliminary and Floor Trial Proceedings, S. Doc. No. 117-3, 117th Cong. 23 (2021).
- ↑ 167 Cong. Rec. S142 (daily ed. Jan. 26, 2021) (swearing in Patrick Leahy (D-VT), President pro tempore of the United States Senate, as presiding officer).
- ↑ 167 Cong. Rec. S609 (daily ed. Feb. 9, 2021) (determining that "Donald John Trump is subject to the jurisdiction of a Court of Impeachment for acts committed while President of the United States, notwithstanding the expiration of his term in that office").
- ↑ See Jared P. Cole & Todd Garvey, Cong. Rsch. Serv., R46013, Impeachment and the Constitution 47-48 (2019)
- ↑ Proceedings of the United States Senate in the Impeachment Trial of Donald John Trump, Part II, S. Doc. No. 117-2, 117th Cong. 146-75 (2021).
- ↑ Id. at 156.
- ↑ Proceedings of the United States Senate in the Impeachment Trial of Donald John Trump, Part III, S. Doc. No. 117-2, 117th Cong. 208 (2021).
- ↑ Id. at 209 (citing Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
- ↑ See Proceedings of the United States Senate in the Impeachment Trial of Donald John Trump, Vol. II: Visual Aids from the Trial and Statements of Senators, S. Doc. No. 117-3, 117th Cong. 875 (2021) (statement of Senator Dan Sullivan) ("[T]he House managers claimed, in arguing their incitement charge, that First Amendment political speech protections do not apply to elected officials in impeachment proceedings. A conviction based on this breathtaking precedent has the potential to significantly further undermine core constitutional protections for Americans and their ability to undertake political speech in the future.") But see id. at 791 (statement of Senator Charles E. Schumer) ("The First Amendment right to free speech protects Americans from jail, not Presidents from impeachment.").
- ↑ 167 Cong. Rec. S733 (daily ed. Feb. 13, 2021) (acquitting former President Trump by a vote of 57-43).
- ↑ See H. Res. 499, 105th Cong. (1988); H.R. Rep. No. 100-810, 105th Cong. 8 (1988).
- ↑ Nixon v. United States, 506 U.S. 224, 237-38 (1993).
- ↑ United States v. Claiborne, 727 F.2d 842 (9th Cir. 1984).
- ↑ Emily F.V. Tassel & Paul Finkelman, Impeachable Offenses: A Documentary History from 1787 to the Present 168 (1999).
- ↑ 132 Cong. Rec. H4710-22 (daily ed. July 22, 1986).
- ↑ H. Comm. on the Judiciary, Impeachment of Judge Harry E. Claiborne, Report to Accompany H. Res. 461, H.R. Rep. No. 99-688, 99th Cong. 1-2 (1986).
- ↑ Id. at 12.
- ↑ Id. at 23.
- ↑ Staff from the S. Impeachment Trial Comm., On the Impeachment of Harry E. Claiborne, S. Rep. No. 99-511, 99th Cong. 1-4 (1986).
- ↑ Id. at 1.
- ↑ 132 Cong. Rec. 29,870-72 (1986).
- ↑ H.R. Rep. No. 100-810, 100th Cong. 8 (1988).
- ↑ Id. The Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 authorizes the Judicial Conference to forward a certification to the House that impeachment of a federal judge may be warranted. 28 U.S.C. § 355.
- ↑ H. Res. 499, 100th Cong. (1988); H.R. Rep. No. 100-810, 100th Cong. 8 (1988).
- ↑ Impeachment of Judge Alcee L. Hastings, Motions of Judge Alee L. Hastings to Dismiss Articles I-XV and XVII of the Articles of Impeachment Against Him and Supporting and Opposing Memoranda, S. Doc. 101-4, 101st Cong. 48-65 (1989).
- ↑ The Impeachment Trial of Alcee Hastings, U.S. Senate, [11] (last visited Jan. 24, 2018).
- ↑ 135 Cong. Rec. S13,783-87 (daily ed. Oct. 20, 1989).
- ↑ Tassel & Finkelman, supra note here, at 173.
- ↑ H. Comm. on the Judiciary, Impeachment of Walter L. Nixon, Jr., Report to Accompany H. Res. 87, H.R. Rep. No. 101-36, 101st Cong. 12-13 (1989).
- ↑ Id. at 14-16.
- ↑ 135 Cong. Rec. H1802-11 (daily ed. May 10, 1989).
- ↑ 135 Cong. Rec. S14,633-39 (daily ed. Nov. 3, 1989).
- ↑ Nixon v. United States, 506 U.S. 224, 226 (1993).
- ↑ Id. at 229.
- ↑ The U.S. District Court for the District of Columbia initially threw out Judge Hastings' Senate impeachment conviction, because the Senate had tried his impeachment before a committee rather than the full Senate. Hastings v. United States, 802 F. Supp. 490, 505 (D.D.C. 1992). The decision was vacated on appeal and remanded for reconsideration in light of Nixon v. United States. Hastings v. United States, 988 F.2d 1280 (D.C. Cir. 1993). The district court then dismissed the suit because it presented a nonjusticiable political question. Hastings v. United States, 837 F. Supp. 3, 5-6 (D.D.C. 1993).
- ↑ H. Comm. on the Judiciary, Impeachment of Judge Samuel B. Kent, Report to Accompany H. Res. 520, H.R. Rep. No. 111-159, 111th Cong. 6-13 (2009) [hereinafter Kent Impeachment].
- ↑ 155 Cong. Rec. H7053-67 (daily ed. June 19, 2009); Kent Impeachment, supra note here, at 2-3.
- ↑ Charles W. Johnson, John V. Sullivan, and Thomas J. Wickham, Jr., House Practice: A Guide to the Rules, Precedents and Procedures of the House 608-13 (2017).
- ↑ The FBI investigated judicial corruption in Louisiana's 24th Judicial District, the court on which Judge Porteous served before being appointed to the District Court for the Eastern District of Louisiana. The Department of Justice declined to seek criminal charges but did submit a complaint of judicial misconduct to the Fifth Circuit Court of Appeals. Report of the Impeachment Trial Comm. on the Articles Against Judge G. Thomas Porteous, Jr., S. Rep. No. 111-347, 111th Cong. 5 (2010) [hereinafter Porteous Impeachment].
- ↑ Porteous Impeachment, supra note here, at 1-2.
- ↑ 156 Cong. Rec. 3155-57 (2010).
- ↑ Porteous Impeachment, supra note here, at 1-2.
- ↑ Porteous Impeachment, supra note here, at 2.
- ↑ 156 Cong. Rec. S2183-84 (daily ed. Apr. 12, 2010). See also Judge G. Thomas Porteous, Jr.'s Post-Trial Brief (Oct. 29, 2010), in Proceedings of the United States Senate in the Impeachment Trial of G. Thomas Porteous, Jr., A Judge of the United States District Court for the Eastern District of Louisiana, 111th Cong., 2d Sess., S. Doc. No. 111-20, at 61-76 (2010) [hereinafter Porteous Proceedings].
- ↑ 156 Cong. Rec. S2358 (daily ed. Apr. 15, 2010). See also Post-Trial Memorandum of the House of Representatives (Oct. 29, 2010), in Porteous Proceedings, supra note here, at 304-15.
- ↑ 156 Cong. Rec. 19,134-36 (2010).
- ↑ 156 Cong. Rec. 8609 (2010).
- ↑ 156 Cong. Rec. 8610 (2010).
- ↑ To Consider Possible Impeachment of United States District Judge G. Thomas Porteous, Jr. (Part IV): Hearing Before the Task Force on Judicial Impeachment of the H. Comm. on the Judiciary, 111th Cong. 30 (2009) (statement of Michael J. Gerhardt, Professor of Law, University of North Carolina, Chapel Hill School of Law); see, e.g., 156 Cong. Rec. S10,285 (daily ed. Dec. 15, 2010) (statement of Senator Tom Udall); id. at S10,284 (statement of Senator Patrick Leahy).
- ↑ 156 Cong. Rec. S10,282 (daily ed. Dec 15, 2010).
- ↑ Id.
- ↑ 156 Cong. Rec. S10, 284. See also id. at S10,286 (statement of Senator Jeanne Shaheen) ("I was totally unpersuaded by the defense team's argument that Judge Porteous's 'pre-Federal' conduct should be outside the scope of our deliberation--I do not believe the act of being confirmed to a Federal judgeship by the Senate erases or excuses an individual's conduct up to the point of confirmation."); id. at S10,405 (statement of Senator Jeff Sessions) ("The Constitution does not require that all conduct be committed post Federal appointment nor does it stipulate at all when the conduct must occur.").
