Impeachment

IMPEACHMENT IN AMERICA

DISPUTED LANGUAGE

BIBLIOGRAPHY

Shortly before the House Judiciary Committee met in October 1973 to debate proposed articles impeaching President Richard Nixon (1913–1994), a then-unknown Democratic congresswoman from Texas momentarily caught the public’s attention. Barbara Jordan (1936–1996) announced that she felt bound to go to the U.S. National Archives to put her fingers on the constitutional text that delegated to the House of Representatives the power to vote articles of impeachment. To many, hearing Jordan’s sonorous retelling of her experience, the impression must have been that by reading the constitutional language dealing with the impeachment and removal of “the President, Vice President and all civil Officers of the United States” (Art. I Sec. 2 (5), Sec. 3 (6–7); Art. II Sec. 2 (1), Sec. 4), Jordan would know exactly what the rules were that governed the process. In fact, the Constitution’s language on impeachment is as difficult to interpret as pharaoh’s dreams.

Impeachment dates to the thirteenth century. Those who would frame and ratify the U.S. Constitution were familiar with the process. In England, it allowed the king’s ministers to be punished even though the king himself could do no wrong. By the mid-eighteenth century, however, despite the publicity that attended the impeachment in 1787 of Warren Hastings (1732–1818), the first governor-general of British India, the process had pretty much disappeared. Hastings was charged with corruption during his tenure in India. His trial began in 1788; he was finally acquitted in 1795. It had never been transplanted to the colonies. In England, its decline paralleled the growth of ministerial responsibility to Parliament and the need of a ministry to have “the confidence of Parliament” and not simply the approbation of the monarch.

IMPEACHMENT IN AMERICA

Despite its rarity in contemporary England, both the Virginia and New Jersey plans provided for impeachment, although both gave the power to members of the judiciary. Only as the Constitutional Convention was winding down in 1787 was the power to impeach and remove vested in the House and Senate, with the chief justice of the Supreme Court involved as the presiding officer only at the trial of an impeached president. The Constitution also clearly distinguished how impeachment would be used in the United States as opposed to England by providing that conviction was limited to removal from office and possibly disqualification from holding public office in the future. In contrast, in England, Parliament could vote for criminal punishments, including death for those found guilty of “high crimes and misdemeanors.” The U.S. Constitution also explicitly limited the president of the United States from pardoning those impeached and convicted.

Although generally referred to as impeachment, the process has two distinct steps. The first involves impeachment, a task assigned to the House, where a simple majority vote is required to approve articles of impeachment. Persons impeached are then tried before the Senate, with the House designating the prosecutors. A two-thirds vote of the Senate is required for conviction. Two presidents—Andrew Johnson (1808–1875) and William Jefferson Clinton (1946–)—have been impeached. Nixon resigned before the full House voted on the impeachment articles adopted by the Judiciary Committee.

More common have been impeachment proceedings against federal judges. Thirteen have been impeached; seven were convicted, four were acquitted, and two resigned with no further Senate action. One U.S. senator and one cabinet member were also impeached. Senator William Blount (1749–1800) of Tennessee was the first individual impeached. The Senate expelled Blount in 1797 and then voted that it did not have jurisdiction to vote on the impeachment articles. Blount was charged with seeking to incite Indians to assist the British in driving the Spanish from west Florida. U.S. Secretary of War William Belknap (1829–1890) resigned in 1876 after being impeached for receiving bribes; the Senate failed to muster the required two-thirds vote to convict.

DISPUTED LANGUAGE

Despite the number of times impeachment has been initiated there remains much controversy as to its exact parameters. Republican House Minority Leader (later president) Gerald Ford (1913–2006), in leading the effort to impeach Justice William O. Douglas (1898–1980) (Ford and fellow Republicans were concerned both about the Justice’s increasingly erratic lifestyle and the possibility that some of his business dealings were illegal), famously quipped that an impeachable offense was “whatever a majority of the House [concludes it] to be …; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious.” Given the continuing scholarly debate, Ford’s statement has much to recommend it. Among the debated issues is the nature of “high crimes and misdemeanors,” the famously imprecise language taken from British practice and enshrined by the Framers in the fourth section of Article II: whether Congress members can be impeached and whether judges can be removed for lack of “good behavior;” whether those removed can have recourse to judicial review; and, finally, whether there are other constitutionally permissible means by which officials can be removed from office.

One set of scholars argues that “high crimes” is limited to indictable offenses. This was argued by Richard Nixon’s attorney, James St. Clair (1920–2001), and by law professor Raoul Berger (1901–2000). In contrast, Michael Gerhardt (2000) claims this is too narrow a reading of the English precedents and would have meant for much of early American history that there were few if any grounds for impeachment, since there were few if any federal crimes for which an individual could be indicted. His argument is that the term embraces any activity that would threaten the nation or bring the office into grave disrepute.

Others have claimed that offenses must relate to the office the person holds. This view is generally rejected with the frequently cited example being that of a hypothetical public official who commits a murder totally unrelated to his or her public responsibilities.

Supporting the argument that the standard, particularly regarding presidents, should be high is the claim that removing a president should be a very rare occurrence, since in doing so the Congress would be setting aside the will of the people. Critics of the impeachment of President Clinton argue that this action was almost akin to a congressional coup d’état and that the underlying act, a tryst with a White House intern, was a purely private act. Supporters of the impeachment argue that Clinton’s grand jury perjury and his sullying of his office were more than sufficient to justify his removal and that his successor, Vice President Al Gore, had also been elected by the people, a situation quite unlike the nineteenth-century case of President Andrew Johnson.

The impeachment of Senator Blount can be used to argue both that members of Congress can be removed and that they cannot. The dominant view is that there is no basis to include members of Congress under the phrase “all civil Officers.”

The first official removed from office (Blount was expelled by the Senate, acting under its powers under Article I, section 5), John Pickering (1738–1805), a U.S. district court judge who was impeached in 1803, clearly committed no crime. He was probably mentally ill and frequently drunk. Like many subsequent impeachments, the vote was along party lines. Pickering’s impeachment leads some to argue that since judges serve “during good behavior” (referring to Article III, Section 1 of the Constitution, which concerns a judge’s life tenure), the fact of bad behavior on the part of judges constitutes additional grounds for removal. The weight of historical evidence is opposed to this position.

Very much in dispute is whether the Constitution allows Congress to fashion other means to remove officials, particularly someone like Pickering who commit no crime and whose behavior would not serve to bring the government into disrepute. The Senate has, since the 1930s, provided that the trial can be conducted by a committee reporting to the full Senate. Several proposals have been advanced in Congress by which federal judges could be removed short of impeachment. The Twenty-fifth Amendment provides a means by which an incapacitated president can be removed. Whether a similar amendment to remove disabled judges is necessary or whether there can be a statutory solution is not clear.

Finally, impeachment appears to be one of the few issues that might fall within the steadily shrinking orbit of nonjusticiable “political questions.” In a case arising from the 1989 impeachment for perjury of Judge Walter Nixon Jr., the Supreme Court, by dismissing his appeal, appeared to indicate that judicial review, after conviction, was not an option. However, like nearly every other aspect of the impeachment process, this statement too is subject to dispute.

SEE ALSO Clinton, Bill; Nixon, Richard M.; Politics

BIBLIOGRAPHY

Berger, Raoul. 1974. Impeachment: The Constitutional Problems. Enl. ed. Cambridge, MA: Harvard University Press.

Black, Charles L. 1974. Impeachment: A Handbook. New Haven, CT: Yale University Press.

Brant, Irving. 1972. Impeachment: Trials and Errors. New York: Knopf.

Gerhardt, Michael J. 2000. The Federal Impeachment Process: A Constitutional and Historical Analysis. 2nd ed. Chicago: University of Chicago Press.

Labovitz, John R. 1978. Presidential Impeachment. New Haven, CT: Yale University Press.

Posner, Richard A. 1999. An Affair of State: The Investigation, Impeachment, and Trial of President Clinton. Cambridge, MA: Harvard University Press.

Rehnquist, William H. 1992. Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson. New York: Morrow.

U.S. House Committee on the Judiciary. 1973. Impeachment: Selected Materials. 93rd Cong., 1st Sess. October 1973. Washington, DC: U.S. Government Printing Office.

U.S. House Committee on the Judiciary. 1975. Impeachment of Richard M. Nixon, President of the United States: The Final Report of the Committee on the Judiciary, House of Representatives, Peter W. Rodino, Jr., Chairman. New York: Viking.

U.S. House Committee on the Judiciary. 1998. Impeachment of William Jefferson Clinton, President of the United States: Report of the Committee on the Judiciary, Together with Additional, Minority, and Dissenting Views to Accompany H. Res. 611. 105th Cong., 2nd Sess. December 16, 1998. Washington, DC: U.S. Government Printing Office.

Walter Nixon v. United States, 113 S. Ct. 732 (1993).

Francis Graham Lee

IMPEACHMENT

A process that is used to charge, try, and remove public officials for misconduct while in office.

Impeachment is a fundamental constitutional power belonging to Congress. This safeguard against corruption can be initiated against federal officeholders from the lowest cabinet member, all the way up to the president and the chief justice of the U.S. Supreme Court. Besides providing the authority for impeachment, the U.S. Constitution details the methods to be used. The two-stage process begins in the House of Representatives with a public inquiry into allegations. It culminates, if necessary, with a trial in the Senate. State constitutions model impeachment processes for state officials on this approach. At both the federal and state levels, impeachment is rare: From the passage of the Constitution to the mid-1990s, only 50 impeachment proceedings were initiated, and only a third of these went as far as a trial in the Senate. The reluctance of lawmakers to use this power is a measure of its gravity; it is generally only invoked by evidence of criminality or substantial abuse of power.

The roots of impeachment date to ancient Athens. Its place in the U.S. Constitution was secured by the influence of English common law on the Framers of the Constitution. Originally, any English subject, politician, or ruler could institute impeachment charges in Parliament. By the fourteenth century, this power became the exclusive domain of the House of Commons and the House of Lords. In 1776, the American colonies included much of the English tradition in state constitutions, but the delegates of the Constitutional Convention hotly debated how best to embody it in the federal Constitution. Their most contentious question was over the offenses that should be considered impeachable.

A Challenge to Impeachment

In 1989, federal judge Alcee Hastings was removed from the bench by a Senate vote, becoming the first judge in U.S. history to be impeached after being acquitted in a criminal trial. Hastings vigorously proclaimed his innocence, challenged the proceedings in court, and alleged that racism drove the proceedings.

An appointee of President jimmy carter, Hastings joined the U.S. District Court for the Southern District of Florida as its first African American judge in 1979. In 1981, federal prosecutors indicted him on conspiracy to accept a bribe from a federal bureau of investigation agent posing as a defendant in a case before him. They charged Attorney William A. Borders, president of the National Bar Association, with offering the agent a lenient sentence from Hastings in exchange for $150,000. Borders was convicted in 1982. Hastings was acquitted in February 1983.

Hastings's troubles soon deepened. In April 1983, the U.S. Court of Appeals for the Eleventh Circuit set in motion a three-year investigation into charges that Hastings had manufactured evidence for his defense. The probe concluded that he was guilty, and in March 1987, the judicial conference of the united states recommended impeachment. The House of Representatives agreed. On August 3, 1988, the full House voted 413–3 to send the case to the Senate with seventeen articles of impeachment, including false testimony, fabrication of false records, and improper disclosure of confidential law enforcement information.

Hastings brought suit, seeking a preliminary injunction from the U.S. District Court for the District of Columbia (Hastings v. United States Senate, 716 F. Supp. 38 [1989]). In his three-part complaint, Hastings claimed that (1) the impeachment hearing was procedurally flawed because his trial would be conducted by committee and not by the full body of the Senate; (2) the impeachment hearings violated his Fifth Amendment double jeopardy rights against a second prosecution for the same crime; and (3) he was being denied effective counsel and was entitled to attorneys' fees.

The suit failed. U.S. district judge Gerhard Gesell held that (1) rule XI of the governing Rules of Procedure and Practice in the Senate When Sitting on Impeachment authorizes a committee format but does not prevent the full participation of the Senate; (2) double jeopardy principles did not apply in this case because impeachment is not a criminal proceeding and because Hastings faced separate impeachment charges; and (3) no statute provides for attorneys' fees.

In August 1989, the Senate panel heard twenty-four days of testimony. On October 20, it convicted Hastings on eight of the impeachment articles and removed him from office. Hastings left the bench continuing to profess his innocence, attacking the Senate's handling of evidence, and maintaining that he was the victim of racism.

cross-references

Double Jeopardy.

The result of the Framers' debate was a compromise: They borrowed language from English common law but adapted the grounds of impeachment. These grounds are specified in 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 choice of the phrase "High Crimes and Misdemeanors" left the exact definition of impeachable offenses open to interpretation by Congress. It has invited considerable debate, but it is generally read to mean both indictable offenses and other serious noncriminal misconduct. The latter has included corruption, dereliction of constitutional duty, and violation of limitations on the power of an office. Under the Constitution, federal judges are held to the most exacting standard: They may remain on the bench only "during good Behavior" (art. III, sec. 1).

How Will the Trial of Bill Clinton Affect Future Impeachments?

Impeachment, the constitutional method for removing presidents, judges, and other federal officers who commit "Treason, Bribery, or other high Crimes and Misdemeanors," requires a majority vote by the House of Representatives, and then conviction by a two-thirds vote in the Senate. President william jefferson clinton's impeachment trial was the fifteenth in U.S. history, and the second of a president. andrew johnson, the other president to be impeached by the House of Representatives, was acquitted by the Senate in 1868 in a vote that mostly followed party lines. Especially in light of prior impeachments, seven of which ended with the removal of federal judges, Clinton's case will affect the future use of impeachment, the process of impeachment, and the definition of "high Crimes and Misdemeanors."

Clinton's experience, like Johnson's, shows that impeachment can be a tool of political warfare. Although the U.S. Constitution only requires a House majority for impeachment, many scholars and other commentators say it should be a bipartisan effort to remove a president who is dangerous to the nation. However, the world of academia differs from that of politics. In contrast, House Republicans pursued Clinton by disregarding polls that said two-thirds of the nation opposed impeachment. The vote in the House then fell mostly along party lines. Future House majorities could use this precedent to impeach a political opponent without substantial public support.

The price of the impeachment, however, was high for House Republicans. Speaker newt gingrich (R-Ga.) resigned after mid-term elections in November 1998, trimming the Republican House majority to six votes. Then, upon exposure of his own extramarital affair, Speaker-elect Robert L. Livingston (R-La.) resigned on the day of impeachment, urging Clinton to follow his example. Republicans and Democrats alike might hesitate to pursue another unpopular impeachment with so much at risk. However, when Democrats someday control the House of Representatives with a Republican in the White House, the human temptation for revenge will be great. As historian Benjamin Ginsberg observed,"The history of American politics over the last few decades is that the victims of a political attack denounce it as an illegitimate endeavor—but within a few years adopt it themselves. It's like an arms race."

As for the process of impeachment, Clinton's experience may affect the future use of witnesses and the viability of censure. The House Judiciary Committee declined to call a single witness to any of Clinton's misconduct, relying instead in the investigation by Independent Counsel kenneth w. starr. Democrats criticized this procedure, asking how the House could vote on impeachment without an independent investigation. (In fact, the only other time the House failed to conduct an investigation was when it impeached President Johnson, suggesting that such an approach is political.) During Clinton's trial in the Senate, however, Democrats themselves opposed calling witnesses, a political move motivated by fear that witnesses would reveal something leading to conviction. House managers running the prosecution, who now wanted 15 witnesses after calling none in the House, had to settle for just three. Everyone will remember that lesson next time.

As an alternative to impeachment, Democrats tried to introduce censure resolutions in both the House and Senate. Republicans defeated these efforts. Some said censure was not a legal option, as the U.S. Constitution provides for censure of members of Congress but not presidents. Democrats, however, pointed to past censures of Presidents andrew jackson, john tyler, and james buchanan, and suggested that Republican opposition stemmed from a desire to brand Democrats as supporting Clinton's misconduct during upcoming elections.

Any future impeachment, whether of a president, judge, or other civil officer, will revisit the question of what constitutes "high Crimes and Misdemeanors," which is undefined in the U.S. Constitution. Those in favor of impeaching Clinton argued that perjury and obstruction of justice of any kind are impeachable because they subvert the rule of law, making it impossible to expect lawful behavior from ordinary citizens and even future presidents, who are charged by the Constitution with taking "Care that the Laws be faithfully executed." Those who opposed impeachment said that while perjury and obstruction of justice are wrong, they are not impeachable offenses unless they concern the president's official duties and present a danger to the nation.

Clinton's impeachment by the House and acquittal by the Senate thus will affect future interpretation of "high Crimes and Misdemeanors" in many ways. The House Judiciary Committee recommended impeachment for perjury in Clinton's deposition in a civil lawsuit, and for perjury in his criminal grand jury testimony. The House voted to impeach only for the latter, suggesting that perjury in a criminal matter is impeachable, while perjury in a civil matter is not.

The Senate, however, voted to acquit Clinton of perjury and obstruction of justice even though most Republicans and Democrats believed Clinton lied under oath and tried to influence the testimony of other witnesses. As explained by Senator Richard H. Bryan (D-Nev.), "The president's conduct is boorish, indefensible, even reprehensible. It does not threaten the republic." This suggests that misconduct, even perjury, that is unrelated to the president's official duties and does not present a danger to the nation is not impeachable.

As such, Clinton's acquittal creates a double standard for impeachment of presidents and judges. In 1986, the House impeached and the Senate convicted Judge Harry E. Claiborne for filing false income tax returns. In 1989, the House impeached and the Senate convicted Judge Walter L. Nixon Jr., for lying under oath about conduct unrelated to his official duties. In neither case did anyone suggest that lying about personal conduct is not an impeachable offense. In fact, the House managers' report concerning Judge Nixon said, "It is difficult to imagine an act more subversive to the legal process than lying from the witness stand. A judge who violates his testimonial oath and misleads a grand jury is clearly unfit to remain on the bench. If a judge's truthfulness cannot be guaranteed, if he sets less than the highest standard for candor, how can ordinary citizens who appear in court be expected to abide by their testimonial oath." The Senate's acquittal of Clinton suggested that lying about private matters is an impeachable offense for judges, but not for presidents.

Finally, the most significant effect of Clinton's impeachment and acquittal may be to define "high Crimes and Misdemeanors" to mean whatever the public wants. Scholars and politicians argued that the term purposefully is vague and undefined to allow Congress to handle each instance in the best interests of the nation. According to constitutional scholar Laurence H. Tribe, "[u]nless the rights of individuals or minority groups are threatened, our governing institutions are structured to make the sustained will of a significant majority all but impossible to topple—as the failure of the effort to remove President Clinton will dramatically illustrate." Even Senator Orrin G. Hatch (R-Utah), who voted to convict Clinton, said,"It's not just law. It's politics …. And you have to combine those two and say—and this ought to be the prevailing question—what is in the best interest of our country, of our nation, of our people."

further readings

Amar, Akhil Reed. 1999."On Impeaching Presidents." Hofstra Law Review 28 (winter).

Austin, Jan, ed. 1999. Congressional Quarterly 1998 Almanac. Washington, D.C.: Congressional Quarterly.

Baker, Peter, and Juliet Eilperin. 1998."Clinton Impeached." Washington Post (December 20).

Carney, James, John F. Dickerson, and Karen Tumulty. 1999. "Nightmare's End." Time (February 22).

Cooper, Charles J. 1999. "A Perjurer in the White House?: The Constitutional Case for Perjury and Obstruction of Justice as High Crimes and Misdemeanors." Harvard Journal of Law and Public Policy (spring).

Coyle, Marcia. 1999. "Impeachment Lessons for the House Are Stark." National Law Journal (February 22).

Gettinger, Stephen. 1999. "Impeachment's Future: Just Another Political Weapon?" CQ Weekly (February 13).

"Impeachment of the President: Interpreting 'High Crimes and Misdemeanors'." 1999. Congressional Digest (February).

Marcus, Ruth. 1999. "House Managers Warn of Trial's Future Impact on Presidency." Washington Post (January 12).

——. 1999. "Scholars Weigh Likelihood of Future Impeachments." Washington Post (February 15).

——. 1999. "With Precedents as a Guide; Senators' Decisions, as Well as Rules, Will Affect Process." Washington Post (January 14).

Samuelson, Robert J. 1998. "Nixon's Revenge." Washington Post (December 23).

"Special Report: Impeachment of the President." 1999. CQ Weekly (February 13).

Tribe, Laurence H. 1999. "And the Winner Is…" New York Times (February 12).

"The Verdict; Constitutional Justice." 1999. New York Times (February 13).

Weisberger, Bernard A. 1999. "Impeachment Aftermath." American Heritage (February).

cross-references

Articles of Impeachment; Sexual Harassment.

Impeachment is conducted in two stages. Impeachment proceedings begin in the House of Representatives (art. I, sec. 2). This stage satisfies the Framers' belief that impeachment should be a public inquiry into charges against an official, and it involves fact-finding at hearings. After accumulating all the evidence, the House votes on whether or not to impeach. A vote against impeachment ends the process. A vote to impeach formally advances the process to its second stage through what is called adoption of the articles of impeachment.Each article is a formal charge with conviction on any one article being sufficient for removal. The case is then sent to the Senate, which organizes the matter for trial (art. I, sec. 3).

During the trial, the Senate follows unique rules. There is no jury (art. III, sec. 2). Instead, the Senate is transformed into a quasi-judicial body that hears the case, and the impeached official can attend or be represented by counsel. The vice president presides over the trial of any official except the president, and the chief justice of the U.S. Supreme Court presides over the trial of the president. To convict, a two-thirds majority is needed. The punishments for conviction are removal from office and disqualification from holding office again. No presidential pardon is possible (art. II, sec. 2). Additional criminal charges can be brought against convicted officials, but these are pursued in court and are separate from the impeachment process.

Impeachment is not often pursued. President andrew johnson was nearly impeached as a result of a bitter struggle in 1868 between his exercise of executive power and congressional will. He escaped an impeachment conviction in the Senate by a single vote. In 1974, President richard m. nixon, embroiled in the watergate scandal, resigned rather than face almost certain impeachment. The House Judiciary Committee had recommended that the full House take up three articles of impeachment against Nixon: obstruction of justice; abuse of constitutional authority; and refusal to answer the committee's subpoenas.

Congress has adopted the articles of impeachment against one senator, William Blount; one cabinet member, William W. Belknap; and one Supreme Court justice, samuel chase. It also has voted to impeach a small number of federal appeals and district court judges. In 1989, U.S. district court judge Alcee Hastings, of Miami, became only the twelfth federal judge in U.S. history to be impeached. His case was unique: He was the first African-American to be appointed to the Florida federal bench, and also the only judge to be impeached after an acquittal in a criminal trial. The House voted to adopt 17 articles of impeachment against him in 1988. After Hastings unsuccessfully challenged his impeachment in court in 1989, the Senate convicted him on eight of the articles and removed him from office.

The impeachment and trial of President bill clinton in 1998 and 1999 demonstrated the difficulty of removing an official when the debate becomes politicized. The desire of the House of Representatives to impeach Clinton grew out of actions that had taken place in litigation involving Clinton and Paula Jones. Jones had filed a lawsuit against Clinton, alleging that he had sexually harassed her when he was governor of Arkansas and she was a state employee. Clinton sought to postpone the suit until he left office but the U.S. Supreme Court, in Clinton v. Jones, 520 U.S. 681, 117 S. Ct. 1636, 137 L. Ed. 2d 945 (1997), ruled that a sitting president does not have presidential immunity from suit over conduct unrelated to his official duties. Jones's attorneys then sought to obtain evidence for the trial. Clinton agreed to be deposed in Washington, D.C. on January 17, 1998, the first sitting president to do so. At the deposition, Jones's attorney asked Clinton whether he been involved in a sexual relationship with former White House intern Monica Lewinsky. He denied that there had been such a relationship and made other denials to questions about his conduct with Lewinsky. In written responses to interrogatories, Clinton made similar denials. Within days, the news media reported about allegations of a sexual affair between the president and the intern.

kenneth starr, the independent counsel who was charged with investigating possible criminal activity by President Clinton and First Lady hillary rodham clinton in an Arkansas real estate deal ("Whitewater"), worked with Jones's attorneys to develop evidence that Clinton had lied about the affair with Lewinsky. Starr threatened to subpoena Clinton to testify before a grand jury about possible perjury and obstruction of justice, but Clinton voluntarily agreed to appear before the grand jury. On August 17, 1998 Clinton changed his story when Starr questioned him before the grand jury. Clinton admitted that he had been alone with Lewinsky and that they had engaged in "inappropriate intimate contact."Much of Clinton's grand jury testimony contradicted the sworn testimony that he had given at the Jones deposition.

Starr prepared a 453-page report and submitted it to the House of Representatives on September 11, 1998. He accused Clinton of betraying his constitutional duty by engaging in a pattern of "abundant and calculating" lies regarding his relationship with Lewinsky. The report, which contained explicit language, was released on the internet a few days later. The Republican-controlled House Judiciary Committee began deliberating the possibility of impeaching Clinton. On Dec. 11, 1998, after seven days of hearings, the Judiciary Committee voted to recommend the impeachment of President Clinton. On a 21-to-16, straight, party-line vote, the committee approved an article of impeachment claiming that Clinton had committed perjury before the grand jury. The committee passed two more articles, alleging perjury in the Paula Jones suit and obstruction of justice. On December 12, it passed a fourth article, alleging that Clinton had abused his power. On December 19, the full House of Representatives impeached Clinton, charging him with "high crimes and misdemeanors" for lying under oath and obstructing justice by trying to cover up his affair with Lewinsky. The House voted largely along party lines to approve two of the four proposed articles of impeachment.

The Senate began the impeachment trial on January 14, 1999. Thirteen House members, acting as prosecutors, spent three days making opening statements, laying out the case for the Senate to convict President Clinton and to remove him from office. The team of lawyers representing President Clinton spent the following three days presenting their lines of defense. After the Senate questioned both sides for several days, it adjourned the trial until House prosecutors could be take depositions from Lewinsky and others who had been involved in the alleged perjury and obstruction of justice. The Senate, on a 70-30 vote, decided not to call Lewinsky as a witness but permitted videotape excerpts of her testimony to be played at the trial. Both sides played excerpts that it believed to be favorable to its position, which were shown to the U.S. public through the televised deliberations. Closing arguments then were presented, and the Senate moved into closed-door deliberations on February 9, 1999.

On February 19, 1999, the Senate acquitted President Clinton of the two articles of impeachment. Rejecting the perjury charge, ten Republicans and all 45 Democrats voted not guilty. On the obstruction-of-justice charge, the Senate split 50-50. After the verdict was announced, Clinton stated that he was "profoundly sorry" for the burden he had imposed on the Congress and the citizens of the United States.

Impeachment remains the ultimate check on the abuse of power. By providing this power to Congress, the Framers drew on a long tradition of democratic skepticism about leaders. These provisions ensure that leaders will serve the people only so long as they respect the law and their offices. In this sense, the power of impeachment also stands ready to thwart tyranny. Calls are occasionally made for reform that would streamline the impeachment process, but its rare invocation and tradition of service make such reform unlikely.

further readings

Baron, Alan I. 1995. "The Curious Case of Alcee Hastings." Nova Law Review (spring).

Shea, Pegi Deitz. 2000. The Impeachment Process. Philadelphia: Chelsea House Publishers.

Smith, Alexa J. 1995. "Federal Judicial Impeachment: Defining Process Due." Hastings Law Journal 46 (January).

Strasser, Fred. 1989. "Proud, Unrepentant, Judge Hastings Exits." The National Law Journal (November 6).

Tupaz, Antonio R., and A. Edsel C.F. Tupaz. 2001. Fundamentals on Impeachment. Quezon City, Philippines: Central Lawbook Pub.

Villadolid, Oscar S., and Alice Colet Villadolid. 2001. The Impeachment of a President. Manila.

cross-references

High Crimes and Misdemeanors; Chase, Samuel, "The Samuel Chase Impeachment Trial" (Sidebar).

Impeachment

Government document

By: United States Senate

Date: November 7, 2005

Source: United States Senate. "Impeachment." 〈http://www.senate.gov〉 (November 7, 2005).

About the Author: The United States Senate, which with the House of Representatives comprises the legislative branch of the American government, has two representatives from each state. In addition to its role in proposing and passing laws, the Constitution gives the Senate powers of "advice and consent" to ratify treaties, approve public appointments, and conduct impeachment trials.

INTRODUCTION

First used in England during the fourteenth century, impeachment is the Constitutional process by which government officials are accused of and tried for criminal acts. The House of Representatives declares the impeachment, and the Senate holds the trial. If convicted, the official is automatically removed from office with no chance for appeal. Because the process is both lengthy and cumbersome, however, only seventeen federal officials have been impeached over the course of the nation's history.

PRIMARY SOURCE

The Senate's Impeachment Role

Under the Constitution, the House of Representatives has the power to impeach a government official, in effect serving as prosecutor. The Senate then holds the impeachment trial, essentially serving as jury and judge, except in the impeachment of a president when the chief justice presides.

The president, vice-president, and all civil officers of the United States are subject to impeachment; conviction means automatic removal from office.

The concept of impeachment originated in England and was adopted by many of the American colonial governments and state constitutions. At the Constitutional Convention, the framers considered several possible models before deciding that the Senate should try impeachments.

Since 1789 only seventeen federal officers have been impeached by the House, fourteen of which were tried by the Senate. Three were dismissed before trial because the individual had left office, 7 ended in acquittal and 7 in conviction. All of those convicted were federal judges.

The United States Constitution provides that the House of Representatives "shall have the sole Power of Impeachment" (Article I, section 2) and that "the Senate shall have the sole Power to try all Impeachments … [but] no person shall be convicted without the Concurrence of two-thirds of the Members present" (Article I, section 3).

Impeachment is a very serious affair. It is perhaps the most awesome power of Congress, the ultimate weapon it wields against officials of the federal government. The House of Representatives is the prosecutor. The Senate chamber is the courtroom. The Senate is the jury and also the judge, except in the case of a presidential impeachment trial when the chief justice presides. The final penalty is removal from office. There is no appeal.

So grave is this power of impeachment, and so conscious is the Congress of this solemn power, that impeachment proceedings have been initiated in the House only sixty-two times since 1789. Only seventeen federal officers have been impeached: two presidents, one cabinet officer, one senator and thirteen federal judges. Sixteen cases have reached the Senate. Of these, two were dismissed before trial because the individuals had left office, seven ended in acquittal, and seven in conviction. Each of the seven Senate convictions has involved a federal judge.

Historical Development

Constitutional Origins

In Federalist 65, Alexander Hamilton called impeachment a process designed "as a method of national inquest into the conduct of public men." Hamilton and his colleagues at the Constitutional Convention, who hammered out the provisions for impeachment, knew that the history of impeachment as a constitutional process dated from fourteenth-century England, when the fledgling Parliament sought to make the king's advisers accountable. By the mid-fifteenth century, impeachment had fallen into disuse in England, but, in the early seventeenth century, the excesses of the Stuart kings prompted Parliament to revive its impeachment power. Even as the Constitution's framers toiled in Philadelphia, the impeachment trial of Warren Hastings was in progress in London and avidly followed in America. Hastings, who was eventually acquitted, was charged with oppression, bribery, and fraud as colonial administrator and first governor general in India.

The American colonial governments and early state constitutions followed the British pattern of trial before the upper legislative body on charges brought by the lower house. Despite these precedents, a major controversy arose at the Constitutional Convention about whether the Senate should act as the court of impeachment. Opposing that role for the Senate, James Madison and Charles Cotesworth Pinckney asserted that it would make the president too dependent on the legislative branch. They suggested, as alternative trial bodies, the Supreme Court or the chief justices of the state supreme courts. Hamilton and others argued, however, that such bodies would be too small and susceptible to corruption. In the end, after much wrangling, the framers selected the Senate as the trial forum. To Hamilton fell the task of explaining the convention's decision. In Federalist 65, he argued:

The Convention thought the Senate the most fit depository of this important trust. Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel confidence enough in its own situation, to preserve unawed and uninfluenced the necessary impartiality between an individual accused, and the representatives of the people, his accusers?

There was also considerable debate at the convention in Philadelphia over the definition of impeachable crimes. In the original proposals, the president was to be removed on impeachment and conviction "formal or corrupt conduct," or for "malpractice or neglect of duty." Later, the wording was changed to "treason, bribery, or corruption," then to "treason or bribery" alone. Contending that "treason or bribery" were too narrow, George Mason proposed adding "mal-administration," but switched to "other high crimes and misdemeanors against the state" when Madison said that "mal-administration" was too broad. A final revision defined impeachable crimes as "treason, bribery or other high crimes and misdemeanors."

In the Constitution, the House is given the "sole power of impeachment." To the Senate is given "the sole power to try all impeachments." Impeachments may be brought against "the President, Vice-President, and all civil officers of the United States." Conviction is automatically followed by "removal from office."

While the framers very clearly envisaged the occasional necessity of initiating impeachment proceedings, they put in place only a very general framework, leaving many questions open to differences of opinion and many details to be filled in. Despite the open-endedness, as Peter Charles Hoffer and N.E.H. Hull note in their book Impeachment in America 1635–1805, thanks to the framers: a tool used in Parliament to curb kings and punish placemen was molded into an efficient legislative check upon executive and judicial wrongdoing. The power of the English House of Commons to impeach anyone, for almost any alleged offense, was restrained; the threat of death and forfeiture upon conviction was lifted; and the interference of the Commons and the House of Lords with the regular courts of justice was limited. American impeachment law shifted, at first inadvertently and then deliberately, from the orbit of English precedent to a native republican course. Federal constitutional provisions for impeachment reflected indigenous experience and revolutionary tenets instead of English tradition.

Impact of Resignation

Throughout the Congress' two hundred years, several major questions have dogged impeachment proceedings. One concerns resignations. In general, the resignation of an official puts an end to impeachment proceedings because the primary objective, removal from office, has been accomplished. This was the case in the impeachment proceedings begun in 1974 against President Richard Nixon. However, resignation has not always been a foolproof way to preclude impeachment, as Secretary of War William Belknap found out in 1876. Belknap, tipped off in advance that a House committee had unearthed information implicating him in the acceptance of bribes in return for lucrative Indian trading posts, rushed to the White House and tearfully begged President Ulysses Grant to accept his resignation at ten o'clock on the morning of March 2, 1876. Around three o'clock that afternoon, representatives, furious at both the president and Belknap for thwarting them, impeached Belknap by voice vote anyway. The Senate debated the question of its jurisdiction, in light of Belknap's resignation, and decided by a vote of 37 to 29 that he could be impeached. But at the end of Belknap's sensational trial in the summer of 1876, he was found not guilty of the charges, not because the senators believed him innocent (most did not), but because most had decided they in fact had no jurisdiction over Belknap, then a private citizen.

Definition of Offenses

Another question, the one debated most hotly by members of Congress, defense attorneys, and legal scholars from the first impeachment trial to the most recent trial of President William Clinton, concerns the issue of what exactly is an impeachable offense. The task of definition left to future legislators by the framers has proved perplexing. Treason and bribery, the two constitutionally designated impeachable crimes, were clear cut. But what were "high crimes and misdemeanors?" Were misdemeanors lesser crimes, or merely misconducts? Did a high crime or misdemeanor have to be a violation of written law? Over the years, "high crimes and misdemeanors" have been anything the prosecutors have wanted them to be. In an unsuccessful attempt to impeach Supreme Court Justice William O. Douglas in 1960, Representative Gerald Ford declared: "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history." The phrase is the subject of continuing debate, pitting broad constructionists, who view impeachment as a political weapon, against narrow constructionists, who regard impeachment as being limited to offenses indictable at common law.

Narrow constructionists won a major victory when Supreme Court Justice Samuel Chase was acquitted in 1805, using as his defense the argument that the charges against him were not based on any indictable offense. President Andrew Johnson won acquittal with a similar defense in 1868. But the first two convictions in the twentieth century, those of Judge Robert Archbald in 1913 and Judge Halsted Ritter in 1936, neither of whom had committed indictable offenses, made it clear that the broad constructionists still carried considerable weight. The debate continued during the 1974 investigation into the conduct of President Nixon, with the staff of the House Judiciary Committee arguing for a broad view of "high crimes and misdemeanors" while Nixon's defense attorneys understandably argued for a narrow view.

Influential Impeachment Cases

Over the course of the nation's history, several impeachment cases have been instrumental in the further evolution of the process.

Andrew Johnson

The bitter animosities growing out of the Civil War gave rise to the impeachment trial of President Andrew Johnson, the most famous of all impeachment trials prior to that of President William Clinton in 1999. The first presidential impeachment in American history occurred in 1868. At the heart of the Johnson case, just as in earlier cases, lay issues far larger than the individuals involved. The Johnson case revolved around the crisis of Reconstruction after the war.

When Johnson succeeded to the presidency in 1865, his ideas for a mild Reconstruction of the southern states clashed with the wishes of a majority of the Congress, controlled by Radical Republicans who favored much stronger action. Throughout 1866, Johnson and Congress were locked in battle.

The Tenure of Office Act, the violation of which was to be the legal basis for impeachment, was passed over Johnson's veto on March 2, 1867. It forbade the president to remove civil officers appointed with the consent of the Senate without the approval of the Senate. Despite the certain consequences, Johnson decided to rid himself of Secretary of War Edwin Stanton, an ally of the Radicals. On August 12, 1867, Johnson suspended Stanton, an act that enraged the Radical Republicans and set in motion events that led the House to vote eleven articles of impeachment against the president.

Johnson's Senate trial began on March 5, 1868, with the defense immediately claiming the necessity of an indictable offense for impeachment. On May 16, after weeks of venomous argument, the Senate took a test vote on Article XI, a catch-all charge thought by the House managers most likely to produce a vote for conviction. The drama of the vote has become legendary. With 36 "guiltys" needed for conviction, the final count was guilty, 35; not guilty, 19. Seven Republicans joined the twelve Democrats in supporting Johnson. Stunned by the setback, the Radicals postponed voting until May 26, when votes on Articles II and III produced identical 35-to-19 tallies. To head off further defeats, the Radicals moved to adjourn sine die, and the motion was adopted 34 to 16, abruptly ending the impeachment trial of President Andrew Johnson.

Charles Swayne

Florida District Judge Charles Swayne was impeached in 1905. He was accused of filing false travel vouchers, improper use of private railroad cars, unlawfully imprisoning two attorneys for contempt, and living outside of his district. Swayne's trial consumed two-and-a-half months before it ended on February 27, 1905, when the Senate voted acquittal on each of the twelve articles. There was little doubt that Swayne was guilty of some of the offenses charged against him. Indeed, his counsel admitted as much, though calling the lapses "inadvertent." The Senate, however, refused to convict Swayne because its members did not believe his peccadilloes amounted to "high crimes and misdemeanors."

It was during the long Swayne trial that the suggestion first surfaced that a Senate committee, rather than the Senate as a whole, should receive impeachment evi-dence. Senator George F. Hoar of Massachusetts proposed that the presiding officer should appoint such a committee. While Hoar's proposal would eventually be embodied in Rule XI of the Senate's impeachment rules, in 1905 the resolution was referred to the Rules Committee, which took no action.

Robert W. Archbald

The next impeachment trial was that of Judge Robert W. Archbald of the Commerce Court in 1913. Archbald was charged with numerous and serious acts of misconduct stretching over many years, including using his office to obtain advantageous business deals and free trips to Europe. As in the Swayne case, not one of the thirteen articles charged an indictable offense. Yet, apparently because of the seriousness and extent of his crimes, many of which he acknowledged, Archbald was convicted on five of thirteen articles. Alexander Simpson, Archbald's counsel, noted that the decision "determined that a judge ought not only to be impartial, but he ought so to demean himself, both in and out of the court, that litigants will have no reason to suspect his impartiality; and that repeatedly failing in that respect constituted a 'high misdemeanor'." After the Archbald trial concluded, his counsel also suggested that impeachment evidence be taken by a Senate committee. Simpson argued that many senators were not in attendance when evidence was taken before the full Senate and thus relied on the printed Congressional Record.

Harold Louderback

In 1933, the House Judiciary Committee recommended censure, rather than impeachment, for federal judge Harold Louderback of California. A minority of the committee, however, took the issue to the floor of the House where they persuaded that body to adopt five articles of impeachment, charging Louderback with favoritism and conspiracy in the appointment of bankruptcy receivers. Louderback's Senate trial consumed nearly all of May 1933, during the New Deal's Hundred Days, one of the busiest legislative periods in congressional history. A long parade of witnesses, including a faith healer who had to be brought into the chamber on a stretcher, filed through to testify. Democrats charged Republicans with using the trial to delay a banking reform bill, a charge Republicans denied. Tempers in the Senate frayed as witness after witness cast doubt on the charges. When the Senate finally voted on May 24, 1933, Louderback was acquitted on all five articles. Only on the fifth and last charge, a summation of the preceding four, did the vote even reach a majority, still eight votes short of the two-thirds needed for conviction.

Rule XI

The trial of Judge Louderback again brought to the fore the problem of attendance at impeachment trials. After the trial, Representative Hatton Sumners of Texas, one of the House managers, recalled the scanty attendance: "At one time only three senators were present, and for ten days we presented evidence to what was practically an empty chamber." In 1934, Senator Henry Ashurst of Arizona, chairman of the Judiciary Committee, offered the resolution that became Rule XI after its adoption the following year. The key words of Rule XI provide:

That in the trial of any impeachment the Presiding Officer of the Senate, if the Senate so orders, shall appoint a committee of senators to receive evidence and take testimony at such times and places as the committee may determine …

Halsted Ritter

Rule XI was not used in the next impeachment trial, that of Florida District Judge Halsted Ritter in 1936. Ritter was charged with a wide range of improprieties that included practicing law while a judge, filing false income tax returns, extortion, and an omnibus charge of misconduct. Ritter's counsel argued that the judge had committed no offense that could be labeled a high crime or misdemeanor and was guilty only of exercising "poor judgment." In fact, Ritter was found "not guilty" by narrow margins on each of the first six charges. On the seventh, however, the omnibus article combining the previous six, Ritter was found guilty, by exactly the required two-thirds vote, of bringing, by his combined actions, "his court into scandal and disrepute." Said the New York Times of the decision: "The Senate is putting judges on notice that they will be removed if the sum total of their crimes shows unfitness for the bench regardless of whether a specific high crime or misdemeanor could be established under ordinary rules of evidence."

Richard Nixon

In the summer of 1974 it looked very much as though there might soon be an impeachment trial for a president of the United States, Richard Nixon. The events of those weeks precipitated a more thorough scrutiny of the Senate's impeachment rules than they had previously undergone. In July 1974, the Senate adopted a resolution directing the Senate Committee on Rules and Administration to review the existing impeachment rules and precedents and recommend revisions. The committee devoted long hours to serious reflection about the solemn duty the Senate believed it might be called upon to perform. The committee was meeting on August 8, when President Nixon announced that he would resign the next day. Nevertheless, the panel continued with its work under a mandate from the Senate to file a report by September 1. The report contained recommendations that were primarily technical changes in the rules that had been adopted in 1868 for the impeachment trial of Andrew Johnson. With the resignation of President Nixon, no further action was taken. The recommendations, however, were resurrected in 1986 and helped inform the debates on how to conduct the trials that resulted in the removal of three federal judges between 1986 and 1989, and again in 1999 when the Senate faced its second presidential impeachment trial.

William Clinton

On December 19, 1998, the House of Representatives approved two articles of impeachment against President William J. Clinton, claiming the president had "willfully corrupted and manipulated the judicial process." The Senate trial began on January 14, 1999, and once again arguments focused on the definition of "high crimes and misdemeanors." Falling short of the necessary two-thirds vote on either article of impeachment (Article I, 55 to 45; Article II, 50 to 50), the Senate acquitted President Clinton on February 12, 1999.

SIGNIFICANCE

Impeachment is one of the most serious responsibilities given to Congress by the Constitution and is reserved for crimes against the nation. Only the House may impeach a government official, and only the Senate can try that person. Because there is no appeals process, the Senate must convict by a two-thirds majority. Impeachment proceedings are milestones in American political history.

Impeachment differs from criminal and civil trials both in purpose and result. A criminal trial is designed to determine the defendant's guilt or innocence; convictions can lead to jail time or even a death sentence. Civil conviction forces the defendant to make financial restitution. The ramifications of an impeachment conviction are entirely political. Once official misconduct has been determined, the individual is required to leave office and cannot hold a public office again. This protects the country and its citizens from corrupt leadership, allows the government to be held accountable for its actions, and ensures that no single elected official is above the law.

FURTHER RESOURCES

Books

Berger, Raoul. Impeachment: The Constitutional Problems. Cambridge: Harvard University Press, 1973.

Gerhardt, Michael J. The Federal Impeachment Process: A Constitutional and Historical Analysis. Chicago: University of Chicago Press, 2000.

Web sites

American Bar Association. "FAQs and Web Resources on the Impeachment Process." 〈http://www.abanet.org/publiced/impeach2.html〉 (January 14, 2006).

U. S. House of Representatives. "Committee on the Judiciary." 〈http://judiciary.house.gov/〉 (January 14, 2006).

IMPEACHMENT

The English Parliament devised impeachment for the removal of ministers of the Crown, the House of Commons serving as prosecutor of charges that the House of Lords adjudged. This, alexander hamilton wrote, was the "model" of the American proceeding—the house of representatives files and prosecutes charges and the senate is the trial tribunal. The Framers of the Constitution also adopted the English grounds for removal, " treason, bribery, or other high crimes and misdemeanors." They defined "treason" narrowly; "bribery" was a common law term of familiar meaning; but the scope of "other high crimes and misdemeanors" remains a subject of continuing debate. Some would confine those terms to indictable crimes. At the other pole, Congressman gerald ford, in proposing the impeachment of Justice william o. douglas in 1970, asserted that an impeachable offense is whatever the House, with the concurrence of the Senate, "considers [it] to be." The historical facts indicate, however, that an impeachable offense need not be indictable, but that such offenses have their limits, for which we must look to the English practice the terms expressed.

Advocates of the indictable crime interpretation point to the criminal terminology, for example, "high crimes and misdemeanors." Article III, section 2, of the Constitution provides, "The trial of all Crimes, except in cases of Impeachment, shall be by Jury"; Article II, section 2, confers a power to grant pardons "except in Cases of Impeachment," and pardons relieve from punishment for a crime. In England the House of Lords combined removal and punishment in the impeachment proceeding. But Article I, section 3, clause 7, made an important departure: "Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any [federal] office … but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law." The separation of removal from criminal prosecution meant that political passions could no longer sweep an accused to his death, but that he would be tried by a jury of his peers.

In the North Carolina Ratification Convention, james iredell explained that if the President "commits any misdemeanor in office, he is impeachable, removable from office.… If he commits any crime, he is punishable by the laws of his country," distinguishing an impeachable "misdemeanor" (which has a common law connotation of misconduct in office) from an indictable crime. Hamilton likewise distinguished between "removal from office" and "actual punishment in cases which admit of it," indicating that some impeachable offenses were not criminal. As will appear, some impeachable offenses were not and still are not punishable crimes; nor does the absence of fine and imprisonment, the customary criminal sanctions, comport with the view that impeachment is a criminal proceeding. The doctrine of double jeopardy also conduces to this conclusion. Although double jeopardy at the framing of the Constitution referred to jeopardy of life, as the Fifth Amendment attests, Congress speedily made treason punishable by death. Impeachment for treason could not, therefore, be regarded as criminal without raising a bar to indictment. Such thinking was carried over to all impeachments by james wilson : because they "are founded on different principles … directed to different objects … the trial and punishment of an offense on impeachment, is no bar to a trial of the same offense at common law." Justice joseph story deduced from the separation between removal and indictment that "a second trial for the same offense" would not be barred by double jeopardy. Thus double jeopardy requires impeachment to be read in noncriminal terms.

The Sixth Amendment furnishes further confirmation. Earlier Article III, section 2, clause 3, expressly exempted impeachment from the "Trial of all Crimes" by jury. With that exemption before them, the draftsmen of the Sixth Amendment required trial by jury in "all criminal prosecutions," thereby canceling the former exception. Since the later Amendment controls, it must be concluded either that the Founders felt no need to exempt impeachment from the Sixth Amendment because they did not consider it a "criminal prosecution" or that jury trial is required if impeachment be in fact a "criminal" prosecution. The latter conclusion is inadmissible. Perhaps the use of criminal terminology is attributable to the fact that words like "offenses," "convict," and "high crimes" had been employed in the English impeachments, and the Framers, engaged in hammering out a charter of government that required major political compromises, could not pause to coin a fresh and different vocabulary for every detail.

Treason and bribery, in contradistinction to crimes against the individual such as murder and robbery, are crimes against the State—political crimes. James Wilson, a chief architect of the Constitution, observed that "impeachments are confined to political characters, to political crimes and misdemeanors." And Justice Story added that they are designed "to secure the state against gross official misdemeanors." By association with "treason, bribery," the phrase "other high crimes and misdemeanors" likewise may be deemed to refer to "political" offenses. "High crimes and misdemeanors" meant "and high misdemeanors," not as a matter of grammatical construction but of historical usage. "High misdemeanors" are first met in a 1386 impeachment, long before there was such a crime as a "misdemeanor." At that time felonies were coupled with trespasses, private as distinguished from political offenses. It was not until well into the sixteenth century that "misdemeanors" replaced "trespasses" in the general criminal law; and in England "high misdemeanors" remained a term peculiar to impeachment and did not find its way into ordinary criminal law, as is true of American law but for a very few statutory "high misdemeanors." Explaining "high misdemeanors," Sir william blackstone stated that the "first and principal is the mal-administration of such high officers as are in the public trust and employment. This is usually punished by the method of parliamentary impeachment," which proceeded not under the common law but under the lex parliamentaria, the "laws and course of parliament."

Though this arguably left Parliament free to fashion political offenses ad hoc, the Framers took a more restricted view. English impeachments proceeded largely for neglect of duty, abuse of power, betrayal of trust, corruption; and early state constitutions likewise provided for removal for misconduct in office, maladministration, corruption. In the Convention there were proposals for removal upon malpractice, neglect of duty, betrayal of trust, corruption, malversation (misconduct in office). Throughout, the focus was on machinery for removal rather than punishment for misconduct. When the impeachment provision came to the floor of the Convention, it employed "treason or bribery." george mason protested that the narrow definition of treason would not reach "many great and dangerous offenses," among them "attempts to subvert the Constitution," which lay at the root of the leading English precedent. He therefore suggested the addition of "maladministration," but Madison objected that "so vague a term will be equivalent to a tenure during the pleasure of the Senate," whereupon Mason substituted "other high crimes and misdemeanors." Some two weeks earlier rufus king had identified treason "agst. particular States" as "high misdemeanors"; a week before, "high misdemeanor" had been replaced in the extradition provision because it had "a technical meaning too limited." These facts show, first, that "other high crimes and misdemeanors" referred to "high misdemeanors," and second, that the terms were chosen precisely because they were "limited and technical" and would not leave the accused at the "pleasure of the Senate." As with other common law terms employed by the Framers, they expected them to have the meaning ascribed to them under English practice.

Justice Story stated that for the meaning of "high crimes and misdemeanors" resort must be had "to parliamentary practice" or "the whole subject must be left to the arbitrary discretion of the Senate," a "despotism" "incompatible" with "the genius of our institutions," and, it may be added, with the legislative history of the provision. Were impeachment restricted to common law crimes it would founder because there are no federal common law crimes; all federal crimes are creatures of statute. Early on Congress enacted statutes that made treason and bribery crimes; a few statutes made certain minor acts criminal "high misdemeanors." But no statute declared "abuse of power," "neglect of duty," or "subversion of the Constitution" to be criminal, yet the Founders unquestionably regarded these as impeachable offenses. Except for treason and bribery, the "silence of the statute book," said Story, would render the power of impeachment "a complete nullity" and enable the most serious offender to escape removal. It is preferable to regard such silence as a continuing construction by Congress that its impeachment powers are not dependent on a statutory proscription and definition of impeachable offenses, particularly because most of its impeachment proceedings have involved nonindictable offenses. In extrajudicial statements, Chief Justice william howard taft and Justice charles evans hughes recognized that such offenses were embraced by "high crimes and misdemeanors."

Another much debated issue is whether impeachment constitutes the sole means for removal of judges. Long before there was mention of impeachment of Justices in the Convention, it conditioned judicial tenure on " good behavior." This wording was not, as has been urged, "used simply to describe a life term," but a technical phrase of established meaning: "as long as he shall behave himself well." Hamilton noted that "good behavior tenure" was a "defeasible tenure," copied from the British model. At common law an appointment conditioned on "good behavior" was forfeited on nonperformance of the condition, that is, it terminated on misbehavior. Given a lapse from "good behavior," william murray (Lord Mansfield) observed, there must be power to remove the officer lest the formula be impotent. The remedy, Blackstone wrote, was by writ of scire facias determinable by the judiciary. Attempts by the Crown to remove a couple of high court judges who enjoyed "good behavior" tenure, Sir John Walter, Chief Baron of the Exchequer, and Sir John Archer, a Justice of Common Pleas, met insistence on removal by scire facias. This view was endorsed by Chief Justice Holt, Lord Chancellor Erskine, the future Lord Justice Denman, William Holdsworth, and charles mcilwain. When the Framers employed a common law term, they expected it would be given its accepted meaning, as is shown by their redefinition of treason to avoid historic excesses, by john dickinson's caution that if ex post facto were to be expanded beyond the Blackstonian association with criminal cases it "would require some further provision," and by assurances in the Virginia Ratification Convention that reference to "trial by jury" included all its attributes, including the right to challenge jurors.

The Framers conceived impeachment as a remedy for misconduct by the President, and throughout the Convention such was its almost exclusive focus. Hamilton explained that "the true light in which it ought to be regarded" is as "a bridle in the hands of the legislative body upon the executive servants of the government." Consequently the Framers placed the provision for impeachment of the President in Article II, the Executive article. Almost at the last minute they amplified it by the addition of the "Vice President, and all civil officers," suggesting it was to apply to officers of the Executive department. The interpretive canon that each provision of an instrument should, if possible, be given effect counsels recognition of judicial removal for breaches of "good behavior," particularly because the standards of "high crimes and misdemeanors" differ from those of "good behavior," so that to insist that impeachment is the sole means for removal of judges is to leave some judicial "misbehavior" beyond remedy.

A number of utterances may seem to require the exclusivity of impeachment; for example, Hamilton stated in the federalist #79 that impeachment "is the only provision" for removal of judges found in the Constitution and "consistent with the necessary independence of judges." Yet he had said in The Federalist #78 that "the standard of good behavior" is an "excellent barrier … to the encroachments and oppression of the representative body"; independence from Congress, not from judges, was the aim. Hamilton recognized that the "standard of good behavior" created a "defeasible tenure," a tenure terminated by breach of "good behavior." So too, the debate in the First Congress respecting the President's power to remove his subordinates contains tangential references to the protection from removal (chiefly by the President) that "good behavior" tenure afforded judges. Removal of his subordinates by the President made a breach in the "exclusivity" of impeachment, notwithstanding the fact that they squarely fit within "all civil officers" of Article II. It is easier to recognize an "exception" from exclusivity for the forfeiture that was an established concomitant of "good behavior," thus giving effect to that separate provision, than to make an exception for Executive subordinates.

What the First Congress did do with respect to judges further undermines reliance upon such dicta. By the Act of 1790 it provided that upon conviction in court for bribery a judge shall "forever be disqualified to hold an office." Since the impeachment clause provides both for removal and disqualification upon impeachment and conviction, the Act represents a construction that the clause does not exclude other means of disqualification. As with "disqualification," so with "removal," for the two stand on a par in the impeachment clause. The action of the First Congress, whose constitutional constructions carry great weight, when it dealt with judges thus speaks against reliance upon passing remarks in a debate that did not involve their removal. The several remarks, moreover, do not meet the test laid down by Chief Justice john marshall, showing that had "this particular case been suggested"—that is, judicial removal of judges for "misbehavior"—"the language would have been so varied as to exclude it." Well aware of the perils posed to judges by "the gusts of faction which might prevail" in Congress, the Founders were little likely to jettison the time-honored nonpolitical removal trial of judges by the courts in favor of a factional proceeding in Congress. Impeachment could be reserved for the grave situation in which the judiciary neglects to cleanse its own house, exactly as impeachment remains available for removal of a wrong-doing subordinate or "favorite" whom the President fails to remove.

james bryce observed that impeachment is so heavy a "piece of artillery" as to "be unfit for ordinary use." The Founders repeatedly stressed that impeachment was meant only for "great injuries"; like Solicitor General, later Lord Chancellor Somers, they were aware that "impeachment ought to be like Goliath's sword, kept in the temple, and used but on great occasions." Hamilton too referred in The Federalist #70 to the "awful discretion" of the impeachment tribunal to doom "to infamy the … most distinguished characters of the community." Such views do not square with the insistence that the wheels of the nation must grind to a halt so that Congress can oust a venal district judge. Congress is in fact reluctant to undertake the ouster of such judges even, said Senator William McAdoo, "in cases of flagrant misconduct," because an impeachment proceeding draws the Congress away for weeks from weightier tasks. That situation, he stated, constitutes "a standing invitation for judges to abuse their authority with impunity and without fear of removal." To insist that impeachment is the sole means of removal of judges is in practical effect to immunize grave misconduct. In the almost two hundred years since adoption of the Constitution hundreds of complaints have resulted in fiftyfive investigations, followed in some cases by censure or resignation. But only nine judges have been impeached and only four convicted and removed.

Some regard the acquittal of Justice samuel p. chase in 1805 as a triumph of justice over heated political partisanship. Others view his impeachment as a natural reaction to the gross partisanship of the Federalist judiciary, given to intemperate attacks upon the Republican opposition in harangues to the grand jury, which might be regarded as an "abuse of power" for political ends. Of Chase's trial of James Callender for alleged violations of the alien and seditions acts, edward s. corwin, said that Chase came to the case "with the evident disposition to play the hanging judge," and there is evidence that he prejudged the case. Callendar was entitled under the canons of his time to a trial free of "the tyrannical partiality of judges," and Chase was under statutory oath to administer justice impartially. Most students of the era consider that conviction failed of a two-thirds vote because the inept, acid-tongued manager of the impeachment, john randolph, had alienated many Republicans as well as Federalists.

The cause célèbre is the impeachment of President andrew johnson in 1868, essentially, as Justice samuel f. miller foresaw, "for standing in the way of certain political purposes of the majority in Congress," but ostensibly for discharging his secretary of war, edwin m. stanton, whom Congress had attempted to rivet in place by the tenure of office act. Critics of Johnson have noted Stanton's "defective loyalty," his conferences with Republican leaders behind Johnson's back respecting measures that divided Congress from the President. Finally Johnson removed him, presenting the issue whether a President who considered a statute to be an unconstitutional invasion of his prerogative to remove a disloyal subordinate—Stanton himself had advised Johnson that the statute was unconstitutional—and who felt that it was his constitutional duty to exercise his independent judgment, was impeachable. Such differences were contemplated as part of the checks and balances of the Constitution.

The tone of the proceedings was sounded in benjamin butler's opening statement: "You are bound by no law," "you are a law unto yourselves." thaddeus stevens asserted that Johnson was "standing at bay, surrounded by a cordon of living men, each with the ax of an executioner uplifted for his just punishment." Stevens dared the Senators who had voted for the Tenure of Office Act four times now to vote for acquittal "on the ground of its un-constitutionality, " condemning backsliders to the "gibbet of everlasting obloquy." Senator charles sumner dismissed "the quibbles of lawyers" in a trial that "is a battle with slavery." One of the impeachment articles charged that on his "Swing Around the Circle" before the 1866 elections, Johnson attempted to bring Congress into ridicule, disgrace, and contempt. But as Senator John Sherman pointed out, members of Congress themselves had resorted to grossly abusive epithets, so that Johnson was not to be blamed for responding in kind. freedom of speech, Senator James Patterson cautioned, was not solely for Congress. Current revulsion against Johnson does not overcome the verdict of Samuel Eliot Morison and Eric McKitrick that the impeachment was a "disgraceful episode," "a great act of ill-directed passion." Johnson's conviction failed by one vote. Whatever his faults, Johnson was entitled to a fair trial, and that, the record amply discloses, was denied to him. Had Johnson been convicted, a revisionist historian wrote, it would have established a precedent "for the removal of any President refusing persistently to cooperate with Congress."

The failure of that impeachment led another revisionist historian to prophesy in 1973 that impeachment would never again be employed to remove a President. Shortly thereafter the House Judiciary Committee instituted an investigation whether President richard m. nixon participated in the watergate conspiracy to obstruct justice. Once more the proceedings evidenced that impeachments are swayed by political affiliations; with a few notable exceptions, a Republican phalanx opposed impeachment until the judicially compelled disclosure of the "White House tapes" revealed that Nixon was a participant in the conspiracy. When he learned as a result of that disclosure that he could not count on more than ten votes in the Senate, he resigned from the presidency. In accepting a pardon from his successor, President gerald ford stated, he acknowledged his guilt. Fortunate it was for America that the Founders provided "Goliath's sword" for "great occasions."

Raoul Berger
(1986)

(see also: Articles of Impeachment of Andrew Johnson; Articles of Impeachment of Richard M. Nixon.)

Bibliography

Berger, Raoul 1973 Impeachment. Pages 313–322. Cambridge, Mass.: Harvard University Press.

——1979 "Chilling Judicial Independence": A Judicial Scarecrow. Cornell Law Quarterly 64:822–854.

Kaufman, Irving 1979 Chilling Judicial Independence. Yale Law Journal 88:681–716.

Kurland, Philip 1974 Watergate, Impeachment and the Constitution. Mississippi Law Review 45:531–600.

IMPEACHMENT

IMPEACHMENT. Article II, section 4, of the U.S. Constitution provides that "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." Article I, section 2, gives the House of Representatives the "sole Power of Impeachment," and once impeachment articles are brought by the House, according to Article I, section 3, "The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present." The penalties for impeachment are also carefully spelled out by the Constitution in Article I, section 3: "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: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law." While the president of the United States has general power to grant pardons and reprieves, this power, according to Article II, section 2, is expressly denied him "in Cases of Impeachment." The only other mention of impeachment in the Constitution is in Article III, section 2, which states, "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury."

Much mystery surrounds the proper grounds for impeachment and the precise nature of the proceedings. Impeachment as practiced in England carried with it criminal penalties and could result in the death of the offender. For the United States, however, it is merely a means of removing someone from office, though the conduct that gives rise to impeachment can also serve as a basis for a criminal prosecution. While the framers debated impeachment relatively little, it does appear clear that the language included in the Constitution represented a compromise between those who thought officeholders ought to be removable by the people's representatives for any "maladministration" and those who believed the president and the judges simply could not function if they were subject to removal from office at the discretion of the legislature. Thus, they limited impeachable offenses to "Treason, Bribery, or other high Crimes and Misdemeanors." Treason and bribery are clear enough, but the phrase "other high Crimes and Misdemeanors" is not. While the statement in Article III about trials by jury seems to link impeachments with crimes, several English impeachments that were models for the framers did not. And the word "misdemeanors" at the time of the writing of the Constitution meant only "misdeeds" rather than carrying the connotation of minor crimes, as it did later.

Relatively few federal officials have been impeached and tried, although the House has initiated impeachment proceedings against three presidents and one justice of the U.S. Supreme Court. The lower court judges who have been impeached have generally been convicted in their Senate trials, and all of them, with the exception of the first judge impeached, John Pickering, who was a habitual drunkard and probably was insane, were guilty of criminal conduct. Following impeachment, most of these judges went to prison or faded into obscurity, although one was subsequently elected as a member of the House of Representatives.

Associate Justice Samuel Chase

After Pickering's removal in 1803, the House began impeachment proceedings against Associate Justice Samuel Chase. Chase had been a strong partisan of John Adams in the election of 1800, and when Thomas Jefferson won that election, Chase found it difficult to hide his displeasure. He seemed sympathetic to the prosecution of Jeffersonian editors for seditious libel during the election campaign and afterward he railed against the administration during a grand jury charge in 1803. The House of Representatives voted articles against him in 1804 and his trial before the Senate in 1805 was a major social, political, and cultural event. Chase had committed no crimes, and his impeachment seems to have been brought both because of his harsh criticism of the Jeffersonians and because his jurisprudential notions on the roles of judge and jury differed from theirs. In the end many Jeffersonians became convinced Chase's removal would compromise the independence of the judiciary and the Senate could not find the required two-thirds vote for his conviction. Chase's acquittal established the principle that judges should not be removed for political reasons and his impeachment suggested the similar notion that judges should seek to remain above politics.

President Andrew Johnson

Andrew Johnson assumed the presidency following the assassination of Abraham Lincoln in 1865. The nation had just ended the Civil War and Congress and the new president were embroiled in disputes over how to accomplish the reconstruction of the Union. Many congressional Republicans suspected that Johnson harbored southern sympathies, so to restrict his ability to control the course of events Congress passed, over Johnson's veto, the Tenure of Office Act (1867), a statute restricting the president from removing any cabinet members until the Senate had confirmed their successors. The constitutionality of this statute was dubious, as the power to hire and fire subordinate executive officials would seem to be a presidential prerogative, but some, even at the time of the framing, believed that such removal could not take place without the concurrence of the same Senate that con-firmed such appointments. Accordingly, when Johnson challenged Congress by dismissing his secretary of war, Edwin Stanton, whose sympathies were with Congress rather than with the president, the House brought articles of impeachment against Johnson. Johnson, too, was acquitted, but by only one vote. His impeachment was certainly the product of unusual circumstances, but it did seem to imply that ignoring congressional sentiment or abuse of office might constitute "high Crimes and Misdemeanors." Congress had even taken care to specify in the Tenure of Office Act that failure to follow the act would be a "high misdemeanor."

President Richard M. Nixon

The next case involving a presidential impeachment came more than a century later, and was also concerned with abuse of office, although the articles contemplated involved the commission of crimes as well. This was the proposed impeachment of President Richard M. Nixon and was the final chapter in a political crisis known as Watergate. The Watergate was an apartment complex in Washington, D.C., that housed the offices of the Democratic National Committee. During the presidential campaign of 1972, operatives eventually linked to persons working in Nixon's White House broke into the offices, seeking materials that have never been revealed. The White House sought to cover up its involvement in the debacle, at one point even misleading the Federal Bureau of Investigation (FBI) by claiming that important Central Intelligence Agency (CIA) matters would be compromised if the federal investigatory agency probed too deeply into the White House's operatives. After the Supreme Court forced the White House to turn over taped evidence of meetings Nixon attended that involved plans to misuse the FBI and CIA for political damage control, the president's position became untenable. The Senate held hearings that exposed all sorts of official misconduct, and trials of the Watergate burglars revealed the connections with the White House. The House Judiciary Committee completed its hearings on impeachment articles and recommended impeachment to the full House. Nixon's political support deteriorated even among members of his own party, and in August 1974, before the full House could vote, he became the first president to resign his office. Doing so, he avoided becoming the first elected president to be impeached.

President William Jefferson Clinton

That dubious distinction went to William Jefferson Clinton in December 1998. The Nixon impeachment and the Chase impeachment were the models most often turned to in the proceedings against Clinton, although the genesis of his impeachment was different from theirs. During Clinton's campaign for the presidency in 1992 and his entire tenure in office, he was accused of financial chicanery and extramarital dalliances. His political opponents also charged that he and his wife misused White House facilities and staff positions for the benefit of themselves and their personal and political associates. Pursuant to the then-active Independent Counsel Law, a special prosecutor, the former federal judge Kenneth Starr, was appointed to investigate. The Independent Counsel Law required that Starr submit to Congress any evidence he found of impeachable offenses.

After an investigation that cost more than $50 million, Starr found no clear evidence of any wrongdoing with regard to financial manipulations or misuse of the White House. Nevertheless, Starr referred to Congress evidence he had discovered in connection with a private lawsuit brought against Clinton alleging sexual misconduct. The evidence demonstrated the president lied under oath in a deposition, sought to get others to file false affidavits, sought to conceal evidence, lied to a grand jury investigating these events, and sought through other means to "obstruct justice" in the case. To the end Clinton denied any wrongdoing, but the evidence of his perjury and obstruction of justice was clear and strong enough for the civil trial court judge to fine him for contempt. Clinton lost his license to practice law in Arkansas for five years.

A majority of the House of Representatives, following some exceptionally stormy hearings before the House Judiciary Committee, in December 1998 voted articles of impeachment against the president for his perjury and obstruction of justice. Virtually all of the House Republicans voted for the measure, and as they controlled the chamber and only a majority is required for impeachment, they prevailed. No witnesses appeared before the Senate, a first in impeachment trial proceedings, and the House managers were severely restricted in the evidence they were allowed to present. The Senate voted on 12 February 1999. Not one Senate Democrat voted to remove the president, though many criticized his miscon-duct. Fifty Republicans voted to convict on one of the charges and forty-five voted to convict on the other, numbers far short of the two-thirds majority, so Clinton served his remaining two years in office.

The great constitutional question in the Clinton proceedings was whether or not the president's conduct in a private lawsuit was proper grounds for impeachment and removal from office. If Clinton was guilty of the miscon-duct with which he was charged, and few reasonable observers doubted that he was guilty of the commission of many felonies, his detractors said this was intolerable in the only federal official who takes a constitutional oath to take care that the laws are faithfully executed. Further, the Republicans maintained that this evidence of bad character was sufficient to prove Clinton should not continue as president. Clinton's Democratic defenders argued that, even if he had done the things alleged, these were essentially private matters, that such personal peccadilloes were not disqualifications for public office. It was true that earlier impeachment cases seemed to involve grave matters of state or abuse of office and that Clinton's misdeeds seemed different in kind. Nevertheless, some scholars supporting the impeachment pointed out that the framers considered personal virtue important and wrote that impeachment was a tool to ensure that only "fit characters" served the nation. Clinton's acquittal and the political maelstrom his impeachment unleashed likely means that impeachment will be reserved in the near future for cases of clearly official misconduct. But it is also likely that the "character" issue will remain an important one in elective politics.

BIBLIOGRAPHY

Berger, Raoul. Impeachment: The Constitutional Problems. Cambridge, Mass.: Harvard University Press, 1973.

Gerhardt, Michael J. The Federal Impeachment Process: A Constitutional and Historical Analysis. 2d ed. Chicago: University of Chicago Press, 2000.

Hoffer, Peter Charles, and N. E. H. Hull. Impeachment in America, 1635–1805. New Haven, Conn.: Yale University Press, 1984.

Kutler, Stanley I. The Wars of Watergate: The Last Crisis of Richard Nixon. New York: Knopf, 1990.

Presser, Stephen B. "Would George Washington Have Wanted Bill Clinton Impeached?" George Washington University Law Review 67 (1999): 666–681.

Whittington, Keith E. Constitutional Construction: Divided Powers and Constitutional Meaning. Cambridge, Mass.: Harvard University Press, 1999.

Stephen B.Presser

See alsoConstitution of the United States ; Impeachment Trial of Andrew Johnson ; Impeachment Trial of Bill Clinton ; Impeachment Trial of Samuel Chase ; andvol. 9:Constitutional Faith .