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Impeachment Inquiry 2019 and Trial

Impeachment and the constitution

From the Congress Constitution website 
The complete article is at: https://constitution.congress.gov/conan/essay/II_4_1/

Article II, Section 4:

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.

 

The impeachment provisions of the Constitution 1 were derived from English practice, but there are important differences. In England, impeachment had a far broader scope. While impeachment was a device to remove from office one who abused his office or misbehaved but who was protected by the Crown, it could be used against anyone – office holder or not – and was penal in nature, with possible penalties of fines, imprisonment, or even death. 2 By contrast, the American impeachment process is remedial, not penal: it is limited to office holders, and judgments are limited to no more than removal from office and disqualification to hold future office.

Impeachment was a device that figured from the first in the plans proposed to the Convention; discussion addressed such questions as what body was to try impeachments and what grounds were to be stated as warranting impeachment. 3 The attention of the Framers was for the most part fixed on the President and his removal, and the results of this narrow frame of reference are reflected in the questions unresolved by the language of the Constitution.

 

Persons Subject to Impeachment

During the debate in the First Congress on the removal controversy, it was contended by some members that impeachment was the exclusive way to remove any officer of the government from his post, 4 but Madison and others contended that this position was destructive of sound governmental practice, 5 and the view did not prevail. Impeachment, said Madison, was to be used to reach a bad officer sheltered by the President and to remove him even against the will of the President; so that the declaration in the Constitution was intended as a supplementary security for the good behavior of the public officers.6 While the language of section 4 covers any civil officerin the executive branch, 7 and covers judges as well, 8 it excludes military officers, 9 and the precedent was early established that it does not apply to members of Congress. 10

 

Judges

Article III, section 1 specifically provides judges with good behavior tenure, but the Constitution nowhere expressly vests the power to remove upon bad behavior, and it has been assumed that judges are made subject to the impeachment power through being labeled civil officers.11 The records in the Convention make this a plausible though not necessary interpretation. 12 And, in fact, eleven of the fifteen impeachments reaching trial in the Senate have been directed at federal judges, and all seven of those convicted in impeachment trials have been judges. 13 So settled apparently is this interpretation that the major arguments, scholarly and political, have concerned the question of whether judges, as well as others, are subject to impeachment for conduct that does not constitute an indictable offense, and the question of whether impeachment is the exclusive removal device for judges. 14

 

Judgment – Removal and Disqualification

Article II, section 4 provides that officers impeached and convicted shall be removed from office; Article I, section 3, clause 7 provides further that judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States. These restrictions on judgment, both of which relate to capacity to hold public office, emphasize the non-penal nature of impeachment, and help to distinguish American impeachment from the open-ended English practice under which criminal penalties could be imposed. 15

The plain language of section 4 seems to require removal from office upon conviction, and in fact the Senate has removed those persons whom it has convicted. In the 1936 trial of Judge Ritter, the Senate determined that removal is automatic upon conviction, and does not require a separate vote. 16 This practice has continued. Because conviction requires a two-thirds vote, this means that removal can occur only as a result of a two-thirds vote. Unlike removal, disqualification from office is a discretionary judgment, and there is no explicit constitutional linkage to the two-thirds vote on conviction. Although an argument can be made that disqualification should nonetheless require a two-thirds vote, 17 the Senate has determined that disqualification may be accomplished by a simple majority vote. 18

 

Impeachable Offenses

The Convention came to its choice of words describing the grounds for impeachment after much deliberation, but the phrasing derived directly from the English practice. On June 2, 1787, the framers adopted a provision that the executive should be removable on impeachment & conviction of mal-practice or neglect of duty.19 The Committee of Detail reported as grounds Treason (or) Bribery or Corruption.20 And the Committee of Eleven reduced the phrase to Treason, or bribery.21 On September 8, Mason objected to this limitation, observing that the term did not encompass all the conduct that should be grounds for removal; he therefore proposed to add or maladministration following bribery. Upon Madison’s objection that [s]o vague a term will be equivalent to a tenure during pleasure of the Senate, Mason suggested other high crimes & misdemeanors, which was adopted without further recorded debate. 22

The phrase high crimes and misdemeanors in the context of impeachments has an ancient English history, first turning up in the impeachment of the Earl of Suffolk in 1388. 23 Treason is defined in the Constitution. 24 Bribery is not, but it had a clear common law meaning and is now well covered by statute. 25High crimes and misdemeanors, however, is an undefined and indefinite phrase, which, in England, had comprehended conduct not constituting indictable offenses. 26 Use of the word other to link high crimes and misdemeanors with treason and bribery is arguably indicative of the types and seriousness of conduct encompassed by high crimes and misdemeanors. Similarly, the word high apparently carried with it a restrictive meaning. 27

Debate prior to adoption of the phrase 28 and comments thereafter in the ratifying conventions 29were to the effect that the President (all the debate was in terms of the President) should be removable by impeachment for commissions or omissions in office which were not criminally cognizable. And in the First Congress’s removal debate, Madison maintained that the wanton dismissal of meritorious officers would be an act of maladministration which would render the President subject to impeachment. 30 Other comments, especially in the ratifying conventions, tend toward a limitation of the term to criminal, perhaps gross criminal, behavior. 31 The scope of the power has been the subject of continuing debate. 32

 

The Chase Impeachment

The issue of the scope of impeachable offenses was early joined as a consequence of the Jefferson Administration’s efforts to rid itself of some of the Federalist judges who were propagandizing the country through grand jury charges and other means. The theory of extreme latitude was enunciated by Senator Giles of Virginia during the impeachment trial of Justice Chase. The power of impeachment was given without limitation to the House of Representatives; and the power of trying impeachments was given equally without limitation to the Senate. . . . A trial and removal of a judge upon impeachment need not imply any criminality or corruption in him . . . [but] nothing more than a declaration of Congress to this effect: You hold dangerous opinions, and if you are suffered to carry them into effect you will work the destruction of the nation. We want your offices, for the purpose of giving them to men who will fill them better.33 Chase’s counsel responded that to be impeachable, conduct must constitute an indictable offense. 34 The issue was left unresolved, Chase’s acquittal owing more to the political divisions in the Senate than to the merits of the arguments. 35

 

Other Impeachments of Judges

The 1803 impeachment and conviction of Judge Pickering as well as several successful 20th century impeachments of judges appear to establish that judges may be removed for seriously questionable conduct that does not violate a criminal statute. 36 The articles on which Judge Pickering was impeached and convicted focused on allegations of mishandling a case before him and appearing on the bench in an intemperate and intoxicated state. 37 Both Judge Archbald and Judge Ritter were convicted on articles of impeachment that charged questionable conduct probably not amounting to indictable offenses. 38

Of the three most recent judicial impeachments, Judges Claiborne and Nixon had previously been convicted of criminal offenses, and Judge Hastings had been acquitted of criminal charges after trial. The impeachment articles against Judge Hastings charged both the conduct for which he had been indicted and trial conduct. A separate question was what effect the court acquittal should have had. 39

Although the language of the Constitution makes no such distinction, some argue that, because of the different nature of their responsibilities and because of different tenure, different standards should govern impeachment of judges and impeachment of executive officers. 40

 

Footnotes are linked to the Congress website.