Impeachment and the Constitution
Congressional research reportDec 6, 2023
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Impeachment and the Constitution
Updated December 6, 2023
Congressional Research Service
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R46013
SUMMARY
Impeachment and the Constitution
The Constitution grants Congress authority to impeach and remove the President, Vice President,
and other federal “civil officers” for “Treason, Bribery, or other high Crimes and
Misdemeanors.” Impeachment is one of the various checks and balances created by the
Constitution, a crucial tool for holding government officers accountable for violations of the law
and abuse of power.
R46013
December 6, 2023
Jared P. Cole
Legislative Attorney
Todd Garvey
Legislative Attorney
Responsibility and authority to determine whether to impeach an individual rests in the hands of
the House of Representatives. Should a simple majority of the House approve articles of
impeachment, the matter is then presented to the Senate, to which the Constitution provides the
sole power to try an impeachment. A conviction on any one of the articles of impeachment
requires the support of a two-thirds majority of the Senators present and results in that individual’s removal from office. The
Senate also has discretion to vote to disqualify that official from holding a federal office in the future.
The Constitution imposes several additional requirements on the impeachment process. When conducting an impeachment
trial, Senators must be “on oath or affirmation,” and the right to a jury trial does not extend to impeachment proceedings. If
the President is impeached and tried in the Senate, the Chief Justice of the United States presides at the trial. The Constitution
bars the President from using the pardon power to shield individuals from impeachment or removal from office.
Understanding the historical practices of Congress with regard to impeachment is central to fleshing out the meaning of the
Constitution’s impeachment clauses. While much of constitutional law is developed through jurisprudence analyzing the text
of the Constitution and applying prior judicial precedents, the Constitution’s meaning is also shaped by institutional practices
and political norms. The power of impeachment is largely immune from judicial review, meaning that Congress’s choices in
this arena are unlikely to be overturned by the courts. For that reason, examining the history of actual impeachments is
crucial to understanding the meaning of the Constitution’s impeachment provisions.
One major recurring question about the impeachment remedy is the definition of “high Crimes and Misdemeanors.” At least
at the time of ratification of the Constitution, the phrase appears understood to have applied to uniquely “political” offenses,
or misdeeds committed by public officials against the state. Such misconduct simply resists a full delineation, however, as the
possible range of potential misdeeds in office cannot be determined in advance. Instead, the type of behavior that merits
impeachment is worked out over time through the political process.
While this report focuses on the constitutional considerations relevant to impeachment, there are various other important
questions that arise in any impeachment proceeding. For a consideration of the legal issues surrounding access to information
from the executive branch in an impeachment investigation, see CRS Report R45983, Congressional Access to Information
in an Impeachment Investigation, by Todd Garvey. For discussion of the House procedures used in impeachment
investigations, see CRS Report R45769, The Impeachment Process in the House of Representatives, by Elizabeth Rybicki
and Michael Greene.
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Impeachment and the Constitution
Contents
Introduction ..................................................................................................................................... 1
Historical Background on Impeachment ......................................................................................... 3
English and Colonial Practice ................................................................................................... 3
Choices of the Framers: An “Americanized” Impeachment System......................................... 4
Impeachment Trials............................................................................................................. 5
High Crimes and Misdemeanors ......................................................................................... 7
The Role of the House of Representatives .................................................................................... 10
The Role of the Senate .................................................................................................................. 13
Historical Practice ................................................................................................................... 13
Requirement of Oath or Affirmation ....................................................................................... 14
Judgment in Cases of Impeachment ........................................................................................ 14
History of Impeachment in Congress ............................................................................................ 15
Early Historical Practices (1789–1860) .................................................................................. 16
Impeachment of Andrew Johnson ........................................................................................... 20
Postbellum Practices (1865–1900) .......................................................................................... 22
Early Twentieth Century Practices .......................................................................................... 23
Effort to Impeach President Richard Nixon ............................................................................ 26
Impeachment of President Bill Clinton ................................................................................... 28
Contemporary Judicial Impeachments .................................................................................... 31
Impeachments of President Donald Trump ............................................................................. 35
Recurring Questions About Impeachment..................................................................................... 38
Who Counts as an Impeachable Officer? ................................................................................ 38
Is Impeachment Limited to Criminal Acts? ............................................................................ 42
Are the Standards for Impeachable Offenses the Same for Judges and Executive
Branch Officials? ................................................................................................................. 43
What Is the Constitutional Definition of Bribery? .................................................................. 46
Impeachment for Behavior Prior to Assuming Office............................................................. 49
Impeachment After an Individual Leaves Office .................................................................... 50
What Is the Standard of Proof in House and Senate Impeachment Proceedings? .................. 51
Standard of Proof in the House ......................................................................................... 52
Standard of Proof in the Senate ........................................................................................ 53
What Are the Applicable Evidentiary Rules and Standards in a Senate Impeachment
Trial? .................................................................................................................................... 54
Are Impeachment Proceedings Subject to Judicial Review? .................................................. 56
Conclusion ..................................................................................................................................... 58
Tables
Table 1. Impeachments in the United States.................................................................................. 59
Contacts
Author Information........................................................................................................................ 61
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Impeachment and the Constitution
Introduction
The Constitution grants Congress authority to impeach and remove the President, Vice President,
and other federal “civil Officers” for treason, bribery, or “other high Crimes and Misdemeanors.”1
Impeachment is one of the various checks and balances created by the Constitution, serving as a
crucial tool for holding government officers accountable for abuse of power, corruption, and
conduct considered incompatible with the nature of an individual’s office.2
Although the term impeachment commonly refers to the removal of a government official from
office, the impeachment process, as described in the Constitution, entails two distinct proceedings
carried out by the separate houses of Congress. First, a simple majority of the House impeaches—
or formally approves allegations of wrongdoing amounting to an impeachable offense.3 The
second proceeding is an impeachment trial in the Senate. If the Senate votes to convict with a
two-thirds majority, the official is removed from office.4 Following a conviction, the Senate also
may vote to disqualify that official from holding a federal office in the future.5 The House has
impeached twenty individuals: fifteen federal judges, one Senator, one Cabinet member, and three
Presidents.6 Of these, eight individuals—all federal judges—were convicted by the Senate.7
1 U.S. CONST. art. II, § 4. While this report focuses on the constitutional considerations relevant to impeachment, there
are various other significant questions that arise in any impeachment proceeding. For a consideration of the legal issues
surrounding access to information in an impeachment investigation, see CRS Report R45983, Congressional Access to
Information in an Impeachment Investigation, by Todd Garvey (2019). For discussion of the House procedures used in
impeachment investigations, see CRS Report R45769, The Impeachment Process in the House of Representatives, by
Elizabeth Rybicki and Michael Greene (2019). See Cong. Rsch. Serv., Overview of Impeachable Offenses, Constitution
Annotated, https://constitution.congress.gov/browse/essay/artII-S4-4-1/ALDE_00000690/.
2 See discussion infra “History of Impeachment in Congress.”
3 See U.S. CONST. art. I, § 2, cl. 5. See Cong. Rsch. Serv., Overview of Impeachment, Constitution Annotated,
https://constitution.congress.gov/browse/essay/artI-S2-C5-1/ALDE_00000030/.
4 Id. § 3, cls. 6, 7. See Cong. Rsch. Serv., Overview of Impeachment Trials, Constitution Annotated,
https://constitution.congress.gov/browse/essay/artI-S3-C6-1/ALDE_00000036/.
5 See 3 ASHER C. HINDS, HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES § 2397, pp.
818–20 (1907) https://www.govinfo.gov/content/pkg/GPO-HPREC-HINDS-V3/pdf/GPO-HPREC-HINDS-V3.pdf
[hereinafter HINDS]; 6 CLARENCE CANNON, CANNON’S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED
STATES § 512, pp. 705–08 (1936), https://www.govinfo.gov/content/pkg/GPO-HPREC-CANNONS-V6/pdf/GPOHPREC-CANNONS-V6.pdf [hereinafter CANNON]. If this option is pursued, a simple majority vote has been sufficient
in the past. See 6 CANNON, supra § 512, pp. 705–06, 708. See, e.g., 49 CONG. REC. 1447–48 (1913) (vote to disqualify
Judge Robert W. Archbald, thirty-nine yeas, thirty-five nays). But see MICHAEL J. GERHARDT, IMPEACHMENT: WHAT
EVERYONE NEEDS TO KNOW 111–12 (2018) (noting that one plausible reading of the constitutional text would require a
two-thirds vote for disqualification).
6 See infra Table 1. The House of Representatives impeached President Donald Trump twice. See infra “Impeachments
of President Donald Trump.” See generally WM. HOLMES BROWN ET AL., HOUSE PRACTICE: A GUIDE TO THE RULES,
PRECEDENTS, AND PROCEDURES OF THE HOUSE ch. 27 § 1 (2011), https://www.govinfo.gov/content/pkg/GPOHPRACTICE-112/pdf/GPO-HPRACTICE-112.pdf [hereinafter HOUSE PRACTICE].
7 See infra Table 1. John Pickering (1804); West H. Humphreys (1862); Robert W. Archbald (1913); Halsted Ritter
(1936); Harry E. Claiborne (1986); Alcee Hastings (1989); Walter L. Nixon Jr. (1989); G. Thomas Porteous Jr. (2010).
See REPORT OF THE IMPEACHMENT TRIAL COMM. ON THE ARTICLES AGAINST JUDGE G. THOMAS PORTEOUS, JR., 111TH
CONG., 2D SESS., S. REP. NO. 111-347, at 1 n.1 (2010) [hereinafter PORTEOUS IMPEACHMENT].
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The Constitution imposes several requirements on the impeachment process.8 When conducting
an impeachment trial, Senators must be “on Oath or Affirmation,”9 and the right to a jury trial
does not extend to impeachment proceedings.10 If the President is impeached and tried in the
Senate, the Chief Justice of the United States presides at the trial.11 Finally, the Constitution bars
the President from using the pardon power to shield individuals from impeachment or removal
from office.12
Understanding the historical practices of Congress on impeachment is central to fleshing out the
meaning of the Constitution’s impeachment clauses. While much of constitutional law is
developed through jurisprudence analyzing the text of the Constitution and applying prior judicial
precedents, the Constitution’s meaning is also shaped by institutional practices and political
norms.13 James Madison, for instance, argued that the meaning of certain provisions in the
Constitution would be “liquidated” over time, or determined through a “regular course of
practice.”14 Justice Joseph Story thought this principle applied to impeachment, noting that the
Framers understood that the meaning of “high Crimes and Misdemeanors” constituting
impeachable offenses would develop over time, much like the common law.15 Justice Story
believed it would be impossible to define precisely the full scope of political offenses that may
constitute impeachable behavior in the future.16 Moreover, the power of impeachment is largely
8 The Constitution contains a number of provisions that are relevant to the impeachment of federal officials. Article I,
Section 2, Clause 5 grants the sole power of impeachment to the House of Representatives; Article I, Section 3, Clause
6 assigns the Senate sole responsibility to try impeachments; Article I, Section 3, Clause 7 provides that the sanctions
for an impeached and convicted individual are limited to removal from office and potentially a bar from holding future
office, but an impeachment proceeding does not preclude criminal liability; Article II, Section 2, Clause 1 provides that
the President enjoys the pardon power, but it does not extend to cases of impeachment; and Article II, Section 4 defines
which officials are subject to impeachment and what kinds of misconduct constitute impeachable behavior. Article III
does not mention impeachment expressly, but Section 1, which establishes that federal judges shall hold their seats
during good behavior, is widely understood to provide the unique nature of judicial tenure. And Article III, Section 2,
Clause 3 provides that trials, “except in Cases of Impeachment, shall be by jury.”
9 Under Senate rules, the Presiding Officer administers the oath to all Senators present before proceeding to
consideration of any articles of impeachment. See S. COMM. ON RULES AND ADMIN., 113TH CONG., SENATE MANUAL
CONTAINING THE STANDING RULES, ORDERS, LAWS, AND RESOLUTIONS AFFECTING THE BUSINESS OF THE UNITED STATES
§ 170, pt. III (2014), https://www.govinfo.gov/content/pkg/SMAN-113/pdf/SMAN-113.pdf. [hereinafter SENATE
MANUAL].
10 U.S. CONST. art. I, § 3, cl. 7; id. art. III, § 2, cl. 3.
11 U.S. CONST. art. I, § 3, cl. 7. There is some debate about who would preside if the Vice President were impeached.
Compare Joel K. Goldstein, Can the Vice President Preside at His Own Impeachment Trial?: A Critique of Bare
Textualism, 44 ST. LOUIS U. L.J. 849, 850 (2000) with Michael Stokes Paulsen, Someone Should Have Told Spiro
Agnew, 14 CONST. COMMENT. 245 (1997).
12 U.S. CONST. art. II, § 2, cl. 1.
13 See KEITH E. WHITTINGTON, CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING 3
(1999); III JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 764 (1833) (“The offences,
to which the power of impeachment has been, and is ordinarily applied, as a remedy, are of a political character.”).
14 THE FEDERALIST NO. 37 (James Madison); see Letter from James Madison to Spencer Roane (Sept. 2, 1819), in 8
WRITINGS OF JAMES MADISON 450 (Gaillard Hunt ed. 1908).
15 III STORY, supra note 13, § 799; (“[N]o previous statute is necessary to authorize an impeachment for any official
misconduct.”); id. § 800 (“In examining the parliamentary history of impeachments, it will be found, that many
offences, not easily definable by law, and many of a purely political character, have been deemed high crimes and
misdemeanours worthy of this extraordinary remedy.”); see also MICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENT
PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS 104–05 (2000).
16 III STORY, supra note 13, § 764 (“Not but that crimes of a strictly legal character fall within the scope of the power,
(for, as we shall presently see, treason, bribery, and other high crimes and misdemeanours are expressly within it;) but
that it has a more enlarged operation, and reaches, what are aptly termed, political offences, growing out of personal
misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties
(continued...)
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immune from judicial review,17 meaning that Congress’s choices in this arena are unlikely to be
overturned by the courts. For that reason, examining the history of actual impeachments is crucial
to determining the meaning of the Constitution’s impeachment provisions.
Consistent with this backdrop, this report begins with an examination of the historical background
on impeachment, including the perspective of the Framers as informed by English and colonial
practice. It then turns to the unique constitutional roles of the House and Senate in the process,
followed by a discussion of impeachment practices throughout the country’s history. The report
concludes by noting and exploring several recurring questions about impeachment, including
legal considerations relevant to a Senate impeachment trial.
Historical Background on Impeachment
English and Colonial Practice
The concept of impeachment and the standard of “high Crimes and Misdemeanors” in the federal
Constitution originate from English, colonial, and early state practice.18 During the struggle in
England by Parliament to impose restraints on the Crown’s powers, the House of Commons
impeached and tried before the House of Lords ministers of the Crown and influential
individuals—but not the Crown itself19—who were often considered beyond the reach of the
criminal courts.20 The tool was used by Parliament to police political offenses committed against
the “system of government.”21
of political office. These are so various in their character, and so indefinable in their actual involutions, that it is almost
impossible to provide systematically for them by positive law.”); id. § 795 (“Again, there are many offences, purely
political, which have been held to be within the reach of parliamentary impeachments, not one of which is in the
slightest manner alluded to in our statute books. And, indeed, political offences are of so various and complex a
character, so utterly incapable of being defined, or classified, that the task of positive legislation would be
impracticable, if it were not almost absurd to attempt it.”).
17 See discussion infra “Are Impeachment Proceedings Subject to Judicial Review?”
18 See THE FEDERALIST NO. 65 (Alexander Hamilton) (Clinton Rossiter ed., 1961); RAOUL BERGER, IMPEACHMENT: THE
CONSTITUTIONAL PROBLEMS 54 (1973); H. COMM. ON THE JUDICIARY, 93D CONG., CONSTITUTIONAL GROUNDS FOR
PRESIDENTIAL IMPEACHMENT 4 (Comm. Print 1974), https://docs.house.gov/meetings/JU/JU00/20160622/105095/
HHRG-114-JU00-20160622-SD004.pdf [hereinafter CONSTITUTIONAL GROUNDS].
19 PETER C. HOFFER & N.E.H. HULL, IMPEACHMENT IN AMERICA, 1635–1805, 96–106 (1984).
20 CONSTITUTIONAL GROUNDS, supra note 18, at 4–7; BERGER, supra note 18, at 59–66; see JOSH CHAFETZ, CONGRESS’S
CONSTITUTION: LEGISLATIVE AUTHORITY AND THE SEPARATION OF POWERS 49–50 (2017). But see Clayton Roberts, The
Law of Impeachment in Stuart England: A Reply to Raoul Berger, 84 YALE L.J. 1419 (1975) (arguing that
impeachment during the Stuart period applied only to violations of existing law). The availability of impeachment in
England appears to have depended on whether the offense endangered the government or society. See HOFFER & HULL,
supra note 19, at 3.
21 CONSTITUTIONAL GROUNDS, supra note 18, at 4–5; II STORY, supra note 13, § 798 (“In examining the parliamentary
history of impeachments, it will be found, that many offences, not easily definable by law, and many of a purely
political character, have been deemed high crimes and misdemeanours worthy of this extraordinary remedy. Thus, lord
chancellors, and judges, and other magistrates, have not only been impeached for bribery, and acting grossly contrary
to the duties of their office; but for misleading their sovereign by unconstitutional opinions, and for attempts to subvert
the fundamental laws, and introduce arbitrary power. . . . One cannot but be struck, in this slight enumeration, with the
utter unfitness of the common tribunals of justice to take cognizance of such offences; and with the entire propriety of
confiding the jurisdiction over them to a tribunal capable of understanding, and reforming, and scrutinizing the polity
of the state, and of sufficient dignity to maintain the independence and reputation of worthy public officers.”).
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Parliament used impeachment as a tool to punish political offenses that damaged the state or
subverted the government, although impeachment was not limited to government ministers.22 At
least by the second half of the seventeenth century, impeachment in England represented a
remedy for “misconduct in high places.”23 The standard of high crimes and misdemeanors
appeared to apply to, among other things, significant abuses of a government office,
misapplication of funds, neglect of duty, corruption, abridgement of parliamentary rights, and
betrayals of the public trust.24 Punishment for impeachment was not limited to removal from
office, but could include a range of penalties upon conviction by the House of Lords, including
imprisonment, fines, or even death.25 In the English experience, the standard of high crimes and
misdemeanors appears to have addressed conduct involving an individual’s abuse of power or
office that damaged the state.26
Inheriting the English practice, the American colonies adopted their own distinctive impeachment
practices.27 These traditions extended into state constitutions established during the early years of
the Republic. The colonies largely limited impeachment to officeholders based on misconduct
committed in office, and the available punishment for impeachment was limited to removal from
office.28 Likewise, many state constitutions adopted after the Declaration of Independence in
1776, but before the federal Constitution was ratified, incorporated impeachment provisions
limiting impeachment to government officials and restricting the punishment for impeachment to
removal from office with the possibility of future disqualification from office.29 At the state level,
the body charged with trying an impeachment varied.30
Choices of the Framers: An “Americanized” Impeachment System
The English and colonial history thus informed the Framers’ consideration and adoption of
impeachment procedures at the Constitutional Convention.31 In some ways, the Framers adopted
the general framework of impeachment inherited from English practice. The English
Parliamentary structure of a bicameral legislature—dividing the power of impeachment between
the “lower” house, which impeached individuals, and an “upper” house, which tried them—was
22 BERGER, supra note 18, at 59–66; CONSTITUTIONAL GROUNDS, supra note 18, at 4–5 (citing J. Rushworth, The Tryal
of Thomas Earl of Stafford, in 8 HISTORICAL COLLECTIONS 8 (1686)); HOFFER & HULL, supra note 19, at 96–106; 15
THE AMERICAN AND ENGLISH ENCYCLOPEDIA OF LAW 1061, 1064 (David S. Garland & Lucius P. McGehee eds., 1900).
23 HOFFER & HULL, supra note 19, at 6.
24 See id. at 3–14; CONSTITUTIONAL GROUNDS, supra note 18, at 4–7; BERGER, supra note 18, at 67–73. Compare id. at
67–68 (claiming that impeachment during the Stuart period was not limited to indictable conduct) with Roberts, supra
note 20 (arguing that impeachment during the Stuart period only applied to violations of existing law).
25 BERGER, supra note 18, at 67.
26 CONSTITUTIONAL GROUNDS, supra note 18, at 4–6; GERHARDT, supra note 15, at 103–04.
27 See HOFFER & HULL, supra note 19, at 15–26.
28 Id. at 67.
29 See generally id. at 57–95; GERHARDT, supra note 15, at 3–11; CHAFETZ, supra note 20, at 96–97; see, e.g., MASS.
CONST. of 1780, pt. 2, ch. 1, § 2, art. VIII; id. § 3, art. VI; NEW YORK CONST. of 1777, art. XXXIII; PENN CONST. of
1776, § 22 (placing the power of impeachment with the commonwealth’s unicameral legislature).
30 See GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776–1787, 141–42 (1969); see, e.g., N.Y.
CONST. of 1777, arts. XXXII–XXXIII (providing that impeachments be tried before a court composed of Senators,
judges of the Supreme Court, and the chancellor).
31 GERHARDT, supra note 15, at 3–11.
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replicated in the federal system with the power to impeach given to the House of Representatives
and the power to try impeachments assigned to the Senate.32
Influenced by the impeachment experiences in the colonies, the Framers ultimately adopted an
“Americanized” impeachment practice with a republican character distinct from English
practice.33 The Framers’ choices narrowed the scope of impeachable offenses and persons subject
to impeachment as compared to English practice.34 For example, the Constitution established an
impeachment mechanism exclusively geared toward holding public officials, including the
President, accountable.35 This system contrasted with the English practice of impeachment, which
could extend to any individual save the Crown and was not limited to removal from office, but
could lead to a variety of punishments.36 Likewise, the Framers adopted a requirement of a twothirds majority vote for conviction on impeachment charges, shielding the process somewhat
from naked partisan control.37 This protocol also differed from the English practice, which
allowed conviction on a simple majority vote.38 In England, the Crown could also pardon
individuals following an impeachment conviction.39 In contrast, the Framers restricted the pardon
power from being applied to impeachments, rendering the impeachment process essentially
unchecked by the executive branch.40 Ultimately, the Framers’ choices in crafting the
Constitution’s impeachment provisions provide Congress with a crucial check on the other
branches of the federal government and inform the Constitution’s separation of powers.41
Impeachment Trials
The Framers also applied the lessons of English history and colonial practice in determining the
structure and location of impeachment trials.42 As mentioned above, most of the American
colonies and early state constitutions adopted their own impeachment procedures before the
establishment of the federal Constitution, placing the power to try impeachments in various
bodies.43 At the Constitutional Convention, the proper body to try impeachments posed a difficult
question.44 Several proposals were considered that would have assigned responsibility for trying
impeachments to different bodies, including the Supreme Court, a panel of state court judges, or a
32 See THE FEDERALIST NOS. 65, 81 (Alexander Hamilton) (Clinton Rossiter ed., 1961); BERGER, supra note 18, at 59–
66; U.S. CONST. art. I, § 2, cl. 5 (conferring the House with the sole power of impeachment); U.S. CONST. art. I, § 3, cl.
6 (providing that the Senate has the exclusive power to try impeachments).
33 See HOFFER & HULL, supra note 19, at xiii, 96–106; GERHARDT, supra note 15, at 3.
34 See Michael J. Gerhardt, Putting the Law of Impeachment in Perspective, 43 ST. LOUIS U. L.J. 905, 908–12 (1999)
[hereinafter Gerhardt, Perspective].
35 HOFFER & HULL, supra note 19, at 96–106.
36 Id. at 97.
37 Id.
38 Id.
39 THE AMERICAN AND ENGLISH ENCYCLOPEDIA OF LAW, supra note 22, at 1071–72.
40 See U.S. CONST. art. II, § 2, cl. 1 (providing that the President “shall have Power to grant Reprieves and Pardons for
Offenses against the United States, except in Cases of Impeachment”).
41 See THE FEDERALIST NO. 65, at 397 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (describing the power of
impeachment as a “bridle in the hands of the legislative body upon the executive servants of the government”); id. NO.
66 (noting that impeachment is an “essential check in the hands of [Congress] upon the encroachments of the
executive”); id. NO. 81 (explaining the importance of the impeachment power in checking the judicial branch).
42 CHARLES L. BLACK, IMPEACHMENT: A HANDBOOK 5–14 (1974).
43 See WOOD, supra note 30, at 141–42; see, e.g., N.Y. CONST. of 1777, arts. XXXII–XXXIII (providing that
impeachments be tried before a court composed of state senators, judges of the New York Supreme Court, and the state
chancellor).
44 See Nixon v. United States, 506 U.S. 224, 233 (1993).
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combination of these bodies.45 One objection to granting the Supreme Court authority to try
impeachments was that Justices were to be appointed by the President, casting doubt on their
ability to be independent in an impeachment trial of the President or another executive official.46
Further, a crucial legislative check in the Constitution’s structure against the judicial branch is
impeachment, as Article III judges cannot be removed by other means.47 To permit the judiciary
to have the ultimate say in one of the most significant checks on its power would subvert the
purpose of that important constitutional limitation.48
Rather than allowing a coordinate branch to play a role in the impeachment process, the Framers
decided that Congress alone would determine who is subject to impeachment. This framework
guards against, in the words of Alexander Hamilton, “a series of deliberate usurpations on the
authority of the legislature” by the judiciary.49 Likewise, the Framers’ choice to place both the
accusatory and adjudicatory aspects of impeachment in the legislature renders impeachment “a
bridle in the hands of the legislative body upon the executive” branch.50 The Framers’ choice also
imposed institutional constraints on the process.51 Dividing the power to impeach from the
authority to try and convict guards against “the danger of persecution from the prevalency of a
fractious spirit in either” body.52 In other words, requiring two legislative bodies to concur for an
impeachment conviction reduces the possibility that an individual will be removed from office
without good reason.
The Framers made one exception to the legislature’s exclusive role in the impeachment process
that promotes integrity in the proceedings. The Chief Justice of the United States presides at
impeachment trials of the President of the United States.53 This provision ensures that a Vice
President, in his usual capacity as Presiding Officer of the Senate,54 shall not preside over
proceedings that could lead to his own elevation to the presidency, a particularly important
concern at the time of the founding, when a President and Vice President could belong to rival
parties.55
45 See id. at 243–44 (White, J., joined by Blackmun, J., concurring); HOFFER & HULL, supra note 19, at 96–100; BLACK,
supra note 42, at 10.
46 James Madison, Notes on the Constitutional Convention (Sept. 8, 1787), in 2 THE RECORDS OF THE FEDERAL
CONVENTION OF 1787, at 551 (Max Farrand ed., 1911).
47 While Congress enjoys the power of the purse, U.S. CONST. art I, § 9, cl. 7, this authority is less pronounced relative
to the judiciary than the executive branch as the Constitution provides that the salary of federal judges cannot be
reduced “during their Continuance in Office.” Id. art. III, § 1.
48 See Nixon, 506 U.S. at 235; THE FEDERALIST NO. 81 (Alexander Hamilton).
49
See THE FEDERALIST NO. 81 (Alexander Hamilton).
50 See id. NO. 65; id. NO. 66 (noting that impeachment is an “essential check in the hands of [Congress] upon the
encroachments of the executive”); see Nixon, 506 U.S. at 242–43 (White, J. joined by Blackmun, J. concurring)
(“[T]here can be little doubt that the Framers came to the view at the Convention that . . . the impeachment power
must reside in the Legislative Branch to provide a check on the largely unaccountable Judiciary.”).
51 See BLACK, supra note 42, at 5–14.
52 THE FEDERALIST NO. 66 (Alexander Hamilton).
53 U.S. CONST. art. I, § 3, cl. 6.
54 Id., art. I, § 3, cl. 5.
55 Compare U.S. CONST. art. II, § 1, cl. 3 (amended 1804) (providing that the electors vote for two persons for President
with the runner-up becoming Vice President), with id. amend XII (amending the Constitution to require electors to cast
one vote for President and one for Vice President). See WOOD, supra note 30, at 212–13.
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High Crimes and Misdemeanors
The Framers narrowed the standard for impeachable conduct as compared to the English
experience. While the English Parliament never formally defined the parameters of what counted
as impeachable conduct, the Framers restricted impeachment to treason, bribery, and “other high
Crimes and Misdemeanors,” the latter phrase a standard inherited from English practice.56 This
standard applied to behavior found damaging to the state, including significant abuses of a
government office or power, misapplication of funds, neglect of duty, corruption, abridgement of
parliamentary rights, and betrayals of the public trust.57
The debates at the Constitutional Convention over what behavior should be subject to
impeachment focused mainly on the President.58 In discussing whether the President should be
removable by impeachment, Gouverneur Morris argued that the President should be removable
through the impeachment process, noting concern that the President might “be bribed by a greater
interest to betray his trust,” and pointed to the example of Charles II receiving a bribe from Louis
XIV.59
The adoption of the high crimes and misdemeanors standard during the Constitutional
Convention reveals that the Framers did not envision impeachment as the proper remedy for
simple policy disagreements with the President. During the debate, the Framers rejected a
proposal to include—in addition to treason and bribery—“maladministration” as an impeachable
offense, which would have presumably incorporated a broad range of common-law offenses.60
Although “maladministration” was a ground for impeachment in many state constitutions at the
time of the Constitution’s drafting,61 the Framers instead adopted the term “high Crimes and
Misdemeanors” from English practice. James Madison objected to including “maladministration”
as grounds for impeachment because such a vague standard would “be equivalent to a tenure
during pleasure of the Senate.”62 The Convention voted to include “high crimes and
misdemeanors” instead.63 Arguably, the Framers’ rejection of such a broad term supports the view
that congressional disagreement with a President’s policy goals is not sufficient grounds for
impeachment.64
Of particular importance to the understanding of high crimes and misdemeanors to the Framers
was the roughly contemporaneous British impeachment proceedings of Warren Hastings, the
governor general of India, which were transpiring at the time of the Constitution’s formulation
and ratification.65 Hastings was charged with high crimes and misdemeanors, which included
56 HOFFER & HULL, supra note 19, at 97; THE AMERICAN AND ENGLISH ENCYCLOPEDIA OF LAW, supra note 22, at 1066.
57 HOFFER & HULL, supra note 19, at 3–14; CONSTITUTIONAL GROUNDS, supra note 18, at 4–7; BERGER, supra note 18,
at 67–73.
58 GERHARDT, supra note 15, at 104.
59 5 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 343
(Jonathan Elliot ed., 1827) [hereinafter ELLIOT’S DEBATES].
60
RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 46, at 547, 550; see Michael J. Gerhardt, The
Constitutional Limits to Impeachment and Its Alternatives, 68 TEX. L. REV. 1, 14–15 (1989) [hereinafter Gerhardt,
Constitutional Limits].
61 Gerhardt, Constitutional Limits, supra note 60, at 29; CONSTITUTIONAL GROUNDS, supra note 18, at 11; BLACK, supra
note 42, at 29.
62 RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 46, at 550; see BLACK, supra note 42, at 29–30.
63 RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 46, at 64–65; see BLACK, supra note 42, at 28.
64 See BLACK, supra note 42, at 30.
65 CONSTITUTIONAL GROUNDS, supra note 18, at 7; HOFFER & HULL, supra note 19, at 113–15.
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corruption and abuse of power.66 At the Constitutional Convention, George Mason positively
referenced the impeachment of Hastings. At that point in the Convention, a proposal to define
impeachment as appropriate for treason and bribery was under consideration. George Mason
objected, noting that treason would not cover the misconduct of Hastings.67 He also thought
impeachment should extend to “attempts to subvert the Constitution.”68 Mason thus proposed that
maladministration be included as an impeachable offense, although, as noted above, this was
eventually rejected in favor of “high Crimes and Misdemeanors.”69
While evidence of precisely what conduct the Framers and ratifiers of the Constitution considered
to constitute high crimes and misdemeanors is relatively sparse, the evidence available indicates
that they considered impeachment to be an essential tool to hold government officers accountable
for political crimes, or offenses against the state.70 James Madison considered it “indispensable
that some provision be made for defending the community against incapacity, negligence, or
perfidy of the chief executive,” as the President might “pervert his administration into a scheme
of peculation or oppression,” or “betray his trust to foreign powers.”71 Alexander Hamilton, in
explaining the Constitution’s impeachment provisions, described impeachable offenses as arising
from “the misconduct of public men, or in other words, from the abuse or violation of some
public trust.”72 Such offenses were “POLITICAL, as they relate chiefly to injuries done immediately
to the society itself.”73 These political offenses could take innumerable forms and simply could
not be neatly delineated.74
At the North Carolina ratifying convention, James Iredell, later to serve as an Associate Justice of
the Supreme Court, noted the difficulty in defining what constitutes an impeachable offense,
beyond causing injury to the government.75 For him, impeachment was “calculated to bring
[offenders] to punishment for crime which is not easy to describe, but which every one must be
convinced is a high crime and misdemeanor against government. . . . [T]he occasion for its
exercise will arise from acts of great injury to the community.”76 He thought the President would
be impeachable for receiving a bribe or “act[ing] from some corrupt motive or other,”77 but not
merely for “want of judgment.”78 Similarly, Samuel Johnston, then the governor of North
Carolina and later the state’s first Senator, thought impeachment was reserved for “‘great
misdemeanors against the public.’”79
At the Virginia ratifying convention, a number of individuals claimed that impeachable offenses
were not limited to indictable crimes.80 For example, James Madison argued that were the
66 CONSTITUTIONAL GROUNDS, supra note 18, at 7; HOFFER & HULL, supra note 19, at 113–15.
67 RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 46, at 550.
68 Id.
69 See supra notes 59–61.
70 See THE FEDERALIST NO. 65, supra note 18; GERHARDT, supra note 15, at 104.
71 5 ELLIOT’S DEBATES, supra note 59, at 341.
72 FEDERALIST NO. 65 supra note 18.
73 Id.
74 Id.; See GERHARDT, supra note 15, at 105.
75 See GERHARDT, supra note 15, at 19.
76 4 ELLIOT’S DEBATES, supra note 59, at 113 (statement of James Iredell at Convention of North Carolina).
77 Id. at 127.
78 Id. at 126.
79 Id. at 48; see GERHARDT, supra note 15, at 19 (quoting 4 ELLIOT’S DEBATES, supra note 59, at 48 (statement of
General Johnston)).
80 See GERHARDT, supra note 15, at 19.
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President to assemble a minority of states to ratify a treaty at the expense of the other states, this
assembly would constitute an impeachable “misdemeanor.”81 Further, Virginia Governor Edmund
Randolph, who would become the nation’s first Attorney General, noted that impeachment was
appropriate for a “willful mistake of the heart,” but not for incorrect opinions.82 Randolph also
argued that impeachment was appropriate for a President’s violation of the Foreign Emoluments
Clause,83 which, he noted, guards against corruption.84
James Wilson, delegate to the Constitutional Convention and later a Supreme Court Justice,
delivered talks about impeachment at the College of Philadelphia following the adoption of the
federal Constitution. He claimed that impeachment was reserved to “political crimes and
misdemeanors, and to political punishments.”85 He argued that, in the eyes of the Framers,
impeachments did not come “within the sphere of ordinary jurisprudence. They are founded on
different principles; are governed by different maxims; and are directed to different objects.”86
Thus, for Wilson, the impeachment and removal of an individual did not preclude a later trial and
punishment for a criminal offense based on the same behavior.87
Justice Joseph Story’s writings on the Constitution echo the understanding that impeachment
applied to political offenses. He noted that impeachment applied to those “offences … committed
by public men in violation of their public trust and duties,” duties that are often “political.”88 Like
Hamilton, Story considered the range of impeachable offenses “so various in their character, and
so indefinable in their actual involutions, that it is almost impossible to provide systematically for
them by positive law.”89
At the time of ratification of the Constitution, the phrase “high crimes and misdemeanors” thus
appears understood to have applied to uniquely “political” offenses, or misdeeds committed by
public officials against the state.90 Such offenses simply resist a full delineation, as the possible
range of potential misdeeds in office cannot be determined in advance.91 Instead, the type of
misconduct that merits impeachment is worked out over time through the political process. In the
years following the Constitution’s ratification, precisely what behavior constitutes a high crime or
misdemeanor has thus been the subject of much debate.92
81 3 ELLIOT’S DEBATES, supra note 59, at 500.
82 Id. at 401.
83 U.S. CONST. art. I, § 9, cl. 8 (“[N]o Person holding any Office of Profit or Trust under [the United States], shall,
without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from
any King, Prince, or foreign State.”).
84 DAVID ROBERTSON, DEBATES AND OTHER PROCEEDINGS OF THE CONVENTION OF VIRGINIA 345 (2d ed. 1805).
85 JAMES WILSON, Lectures on Law, reprinted in 1 THE WORKS OF JAMES WILSON 426 (Robert Green McCloskey ed.,
1967).
86 Id. at 324.
87 Id.
88 III STORY, supra note 13, § 746.
89 Id. § 762.
90 Gary L. McDowell, “High Crimes and Misdemeanors:” Recovering the Intentions of the Founders, 67 GEO. WASH.
L. REV. 626, 638 (1999); BERGER, supra note 18, at 59–61; GERHARDT, supra note 15, at 103–06.
91 See GERHARDT, supra note 15, at 105.
92 Compare H. COMM. ON THE JUDICIARY, IMPEACHMENT OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED
STATES, 105TH CONG., 2D SESS., H.R. REP. NO. 105-830, at 110–18 (1998) [hereinafter CLINTON IMPEACHMENT]
(majority views), with id. at 204 (minority views). See McDowell, supra note 90, at 627; Laurence H. Tribe, Defining
“High Crimes and Misdemeanors”: Basic Principles, 67 GEO. WASH. L. REV. 712, 717 (1999).
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The Role of the House of Representatives
The Constitution grants the sole power of impeachment to the House of Representatives.93
Generally speaking, the impeachment process has often been initiated in the House by a Member
by resolution or declaration of a charge,94 although anyone—including House Members, a grand
jury, or a state legislature—may request that the House investigate an individual for impeachment
purposes.95 In modern practice, many impeachments have been sparked by referrals from an
external investigatory body.96 Beginning in the 1980s, the Judicial Conference has referred its
findings to the House recommending an impeachment investigation into a number of federal
judges who were eventually impeached.97 Similarly, in the impeachment of President Bill Clinton,
an independent counsel—a temporary prosecutor given statutory independence and charged with
investigating certain misconduct when approved by a judicial body98—first conducted an
investigation into a variety of alleged activities on the part of the President and his associates, and
then delivered a report to the House detailing conduct that the independent counsel considered
potentially impeachable.99
Regardless of the source requesting an impeachment investigation, the House has sole discretion
under the Constitution to begin any impeachment proceedings against an individual.100 In
practice, impeachment investigations have historically been handled by an already existing or
specially created subcommittee of the House Judiciary Committee.101 Recent presidential
impeachment investigations, however, have been undertaken by multiple standing committees
working in concert.102
The scope of the investigation can vary. In some instances, an entirely independent investigation
may be initiated by the House. In other cases, an impeachment investigation might rely on
93 U.S. CONST. art. I, § 2, cl. 5.
94 See 3 HINDS, supra note 5, § 2342, pp. 711–15; id. § 2400, pp. 823–26; id. § 2469, pp. 948–50; 116 CONG. REC.
11,941–42 (1970); 119 CONG. REC. 34,873 (1973); see also HOUSE PRACTICE, supra note 6, at ch. 27 § 6. For a
discussion of the impeachment procedures used in the House, see CRS Report R45769, The Impeachment Process in
the House of Representatives, by Elizabeth Rybicki and Michael Greene.
95 See GERHARDT, supra note 15, at 25; 3 LEWIS DESCHLER, PRECEDENTS OF THE UNITED STATES OF THE HOUSE OF
REPRESENTATIVES, H.R. DOC. NO. 94-661, at Ch. 14 § 5, pp. 2020–21; id. §§ 5.10–5.11, pp. 2030–31 (1994),
https://www.govinfo.gov/content/pkg/GPO-HPREC-DESCHLERS-V3/pdf/GPO-HPREC-DESCHLERS-V3.pdf
[hereinafter DESCHLER].
96 The Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 authorizes the Judicial Conference to
forward a certification to the House that impeachment of a federal judge may be warranted. 28 U.S.C. § 355.
97 See GERHARDT, supra note 15, at 176.
98 See 28 U.S.C. §§ 591–99. The statute authorizing the appointment of an independent counsel expired in 1999. Id. §
599.
99
See GERHARDT, supra note 15, at 176.
100 U.S. CONST. art. I, § 2, cl. 5. For a consideration of legal issues surrounding an impeachment investigation, see CRS
Report R45983, Congressional Access to Information in an Impeachment Investigation, by Todd Garvey. For
discussion of the House procedures used in impeachment investigations, see CRS Report R45769, The Impeachment
Process in the House of Representatives, by Elizabeth Rybicki and Michael Greene.
101 See, e.g., GERHARDT, supra note 15, at x–xi; PORTEOUS IMPEACHMENT, supra note 7, at 6 (describing the creation by
the House Judiciary Committee of an Impeachment Task Force to investigate allegations against Judge Porteous).
102 See, e.g., H.R. Res. 660, 116th Cong. (2019) (directing multiple committees to “continue their ongoing
investigations as part of the existing House of Representatives inquiry into whether sufficient grounds exist for the
House of Representatives to exercise its Constitutional power to impeach Donald John Trump, President of the United
States of America”); Press Release, Kevin McCarthy, Speaker of the House, Speaker McCarthy Opens an Impeachment
Inquiry (Sept. 12, 2023), https://www.speaker.gov/speaker-mccarthy-opens-an-impeachment-inquiry/ (announcing the
start of a “formal impeachment inquiry into President Joe Biden” by three House committees).
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records delivered by outside entities, such as those delivered by the Judicial Conference or an
independent counsel.103 Following this investigation, the full House may vote on the relevant
impeachment articles. If articles of impeachment are approved, the House chooses managers to
present the matter to the Senate.104 The Chairman of the House Managers then presents the
articles of impeachment to the Senate and requests that the body order the appearance of the
accused.105 The House Managers typically act as prosecutors in the Senate trial.106
The House has impeached twenty individuals: fifteen federal judges, one Senator, one Cabinet
member, and three Presidents.107 The consensus reflected in these proceedings is that
impeachment may serve as a means to address misconduct that does not necessarily give rise to
criminal sanction. According to congressional sources, the types of conduct that constitute
grounds for impeachment in the House appear to fall into three general categories: (1) improperly
exceeding or abusing the powers of the office; (2) behavior incompatible with the function and
purpose of the office; and (3) misusing the office for an improper purpose or for personal gain.108
Consistent with scholarship on the scope of impeachable offenses,109 congressional materials have
cautioned that the grounds for impeachment “do not all fit neatly and logically into categories”
because the remedy of impeachment is intended to “reach a broad variety of conduct by officers
that is both serious and incompatible with the duties of the office.”110
While successful impeachments and convictions of federal officials represent some clear
guideposts for what constitutes impeachable conduct, impeachment processes that do not result in
a final vote for impeachment and removal also may influence the understanding of Congress,
executive and judicial branch officials, and the public over what constitutes an impeachable
offense.111 A prominent example involves the first noteworthy attempt at a presidential
impeachment, aimed at John Tyler in 1842. At the time, the presidential practice had generally
been to reserve vetoes for constitutional, rather than policy, disagreements with Congress.112
Following President Tyler’s veto of a tariff bill on policy grounds, the House endorsed a select
103 See GERHARDT, supra note 15, at 26. The House also did not conduct independent fact finding in the impeachments
of President Bill Clinton, President Andrew Johnson, and Judge Harry E. Claiborne. Id. at 176–77. In the second
impeachment of President Trump, the House conducted no formal impeachment investigation, but the staff of the
Committee on the Judiciary presented the House with a report supporting the impeachment and outlining the events of
January 6, 2021. See Staff of H. Comm. on the Judiciary, 116th Cong., Materials in Support of H. Res. 24 Impeaching
Donald John Trump, President of the United States, for High Crimes and Misdemeanors (Comm. Print 2021).
104 HOUSE PRACTICE, supra note 6, at ch. 27, §§ 8–9.
105 GERHARDT, supra note 15, at 33.
106 3 HINDS, supra note 5, § 2301, pp. 651–52; id. § 2370, pp. 785–86, 788–89; id. § 2390, pp. 809–10, 812; id. § 2420,
pp. 862–63, 869; id. § 2449, pp. 909–10, 915.
107 See infra Table 1. See also PORTEOUS IMPEACHMENT, supra note 7, at 1 n.1.
108 HOUSE PRACTICE, supra note 6, at ch. 27 § 4. For examples of impeachments that fit into these categories, see CONG.
GLOBE, 40th Cong., 2nd Sess. 1400 (1868) (impeaching President Andrew Johnson for violating the Tenure of Office
Act); 132 CONG. REC. H4710–22 (daily ed. July 22, 1986) (impeaching Judge Harry E. Claiborne for providing false
information on federal income tax forms); 156 CONG. REC. 3155–57 (2010) (impeaching Judge G. Thomas Porteous for
engaging in a corrupt relationship with bail bondmen where he received things of value in return for helping bondsman
develop relationships with state judges).
109 GERHARDT, supra note 15, at 48–49.
110 CONSTITUTIONAL GROUNDS, supra note 18, at 17.
111 In 1970, for instance, a Subcommittee of the House Judiciary Committee was authorized to conduct an
impeachment investigation into the conduct of Justice William O. Douglas, but ultimately concluded that impeachment
was not warranted. See generally ASSOCIATE JUSTICE WILLIAM O. DOUGLAS, FINAL REPORT BY THE SPECIAL SUBCOMM.
ON H. RES. 920 OF THE COMMITTEE ON THE JUDICIARY, 91ST CONG. (Comm. Print 1970).
112 See generally MICHAEL J. GERHARDT, FORGOTTEN PRESIDENTS: THEIR UNTOLD CONSTITUTIONAL LEGACY 41–47
(2013).
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committee report condemning President Tyler and suggesting that he might be an appropriate
subject for impeachment proceedings.113 The possibility apparently ended when the Whigs, who
had led the movement to impeach, lost their House majority in the midterm elections.114 In the
years following the aborted effort to impeach President Tyler, Presidents have routinely used their
veto power for policy reasons. This practice is generally seen as an important separation of
powers limitation on Congress’s ability to pass laws rather than a potential ground for
impeachment.115
Likewise, although President Richard Nixon resigned before impeachment proceedings were
completed in the House, the approval of three articles of impeachment by the House Judiciary
Committee against him may inform lawmakers’ understanding of conduct that constitutes an
impeachable offense.116 The approved impeachment articles included allegations that President
Nixon obstructed justice by using the office of the presidency to impede the investigation into the
break-in of the Democratic National Committee headquarters at the Watergate Hotel and Office
Building and authorized a cover-up of the activities that were being investigated. President Nixon
was alleged to have abused the power of his office by using federal agencies to punish political
enemies and refusing to cooperate with the Judiciary Committee’s investigation.117 While no
impeachment vote was taken by the House, the Nixon experience nevertheless established what
some would call the quintessential case for impeachment—a serious abuse of the office of the
presidency that undermined the office’s integrity.118
At the same time, one must be cautious in extrapolating wide-ranging lessons from the lack of
impeachment proceedings in the House. Specific behavior not believed to constitute an
impeachable offense in prior contexts might be considered impeachable in a different set of
circumstances. Moreover, given the varied contextual permutations, the full scope of impeachable
behavior resists specification,119 and historical precedent may not always serve as a useful guide
to whether conduct is grounds for impeachment. For instance, no President has been impeached
for abandoning the office and refusing to govern. That this event has not occurred, however,
hardly proves that this behavior would not constitute an impeachable offense meriting removal
from office.120
113 OLIVER P. CHITWOOD, JOHN TYLER: CHAMPION OF THE OLD SOUTH 299–300 (1939).
114
GERHARDT, FORGOTTEN PRESIDENTS, supra note 112, at 57.
115 Randall K. Miller, Presidential Sanctuaries After the Clinton Sex Scandals, 22 HARV. J.L. & PUB. POL’Y 647, 706–
07 (1999) (“The Senate acquittal of President Andrew Johnson and the House’s failed attempt to impeach
President John Tyler implies that even a deeply felt congressional disagreement with a target's policies or political
philosophies alone is not enough to justify removal.”).
116 See H. COMM. ON THE JUDICIARY, IMPEACHMENT OF RICHARD M. NIXON, PRESIDENT OF THE UNITED STATES, 93D
CONG., 2D SESS., H.R. REP. NO. 93-1305, at 6–11 (1974) [hereinafter NIXON IMPEACHMENT]; United States v. Nixon,
418 U.S. 683, 713–14 (1974).
117 See NIXON IMPEACHMENT, supra note 116, at 6–11.
118 See discussion infra “Effort to Impeach President Richard Nixon.”
119 See GERHARDT, supra note 15, at 106.
120 See BLACK, supra note 42, at 33–36.
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The Role of the Senate
Historical Practice
The Constitution grants the Senate sole authority “to try all Impeachments.”121 The Senate thus
enjoys broad discretion in establishing procedures to be undertaken in an impeachment trial. For
instance, in a lawsuit challenging the Senate’s use of a trial committee to take and report
evidence, the Supreme Court in Nixon v. United States unanimously ruled that the suit posed a
nonjusticiable political question and was not subject to judicial resolution.122 The Court explained
that the term “try” in the Constitution’s provisions on impeachment was textually committed to
the Senate for interpretation and lacked sufficient precision to enable a judicially manageable
standard of review.123 In reaching this conclusion, the Court explained that the Constitution
imposes three precise requirements for impeachment trials in the Senate: (1) Members must be
under oath during the proceedings; (2) conviction requires a two-thirds vote; and (3) the Chief
Justice must preside if the President is tried.124 Given these three clear requirements, the Court
reasoned that the Framers “did not intend to impose additional limitations on the form of the
Senate proceedings by the use of the word ‘try.’”125 Thus, subject to these three clear
requirements of the Constitution, the Senate enjoys substantial discretion in establishing its own
procedures during impeachment trials.
While the Senate determines for itself how to conduct impeachment proceedings, the nature and
frequency of Senate impeachment trials largely hinge on the impeachment charges brought by the
House. The House has impeached thirteen federal district judges, a judge on the Commerce
Court, a Senator, a Supreme Court Justice, the secretary of an executive department, and three
Presidents.126 In contrast, the Senate ultimately has only convicted and removed from office seven
federal district judges and a Commerce Court judge.127 While this pattern does not mean that
Presidents or other civil officers are immune from removal based on impeachment,128 the Senate’s
acquittals may be considered to have precedential value when assessing whether particular
conduct constitutes a removable offense. For instance, the first subject of an impeachment by the
House involved a sitting U.S. Senator for allegedly conspiring to aid Great Britain’s attempt to
seize Spanish-controlled territory.129 The Senate voted to dismiss the charges in 1799,130 and no
Member of Congress has been impeached since. The House also impeached Supreme Court
Justice Samuel Chase, who was widely viewed by Jeffersonian Republicans as openly partisan
for, among other things, misapplying the law.131 The Senate acquitted Justice Chase, establishing,
121 U.S. CONST. art. I, § 3, cl. 6.
122 Nixon v. United States, 506 U.S. 224, 238 (1993). But see In re Request for Access to Grand Jury Materials Grand
Jury No. 81-1, Miami, 833 F.2d 1438, 1439–40 (11th Cir. 1987) (upholding an order granting the House Judiciary
Committee access to grand jury materials in an impeachment investigation).
123 Nixon, at 229–30.
124 Id. at 230.
125 Id.
126 See infra Table 1.
127 See infra Table 1.
128 U.S. CONST. art. II, § 4.
129 See DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: THE FEDERALIST PERIOD 1789–1801 275–81 (1997).
130 8 ANNALS OF CONG. 2318–20 (1799).
131 See discussion infra “Early Historical Practices (1789–1860).”
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at least for many, a general principle that impeachment is not an appropriate remedy for
disagreement with a judge’s judicial philosophy or decisions.132
Requirement of Oath or Affirmation
The Constitution requires Senators sitting as an impeachment tribunal to take a special oath
distinct from the oath of office that all Members of Congress must take.133 This requirement
underscores the unique nature of the role the Senate plays in impeachment trials, at least in
comparison to its normal deliberative functions.134 The Senate practice has been to require each
Senator to swear or affirm that he will “do impartial justice according to the Constitution and
laws.”135 The oath was originally adopted by the Senate before proceedings in the impeachment
of Senator Blount in 1798 and has remained largely unchanged since.136
Judgment in Cases of Impeachment
The Constitution provides that “Judgment in Cases of Impeachment shall not extend further than
to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit
under the United States.”137 While the Constitution authorizes the Senate, following an
individual’s conviction in an impeachment trial, to bar an individual from holding office in the
future, the text of the Constitution does not make clear that a vote for disqualification from future
office must be taken separately from the initial vote for conviction. Instead, the potential for a
separate vote for disqualification has arisen through the historical practice of the Senate.138 The
Senate did not choose to disqualify an impeached individual from holding future office until the
Civil War era. Federal district judge West H. Humphreys took a position as a judge in the
Confederate government but did not resign his seat in the U.S. government.139 The House
impeached Humphreys in 1862. The Senate then voted unanimously to convict Judge Humphreys
and separately voted to disqualify him from holding office in the future.140 Senate practice since
the Humphreys case has been to require a simple majority vote to disqualify an individual from
holding future office, rather than the supermajority required by the Constitution’s text for
removal, but it is unclear what justifies this result beyond historical practice.141
132 See GERHARDT, supra note 15, at 3–11; WILLIAM H. REHNQUIST, GRAND INQUESTS: THE HISTORIC IMPEACHMENTS
134 (1992). For a discussion of the “constitutional constructions” developed by the Chase impeachment, including the
standard of impeachable offenses and the role of the judiciary in the Republic, see WHITTINGTON, supra note 13, at 20–
71.
133 U.S. CONST. art. I, § 3, cl. 6.
134 See BLACK, supra note 42, at 9–10.
135
See S. DOC. NO. 99-33, at 61 (1986).
136 3 HINDS, supra note 5, § 2303.
137 U.S. CONST. art. I, § 3, cl. 7.
138 See 6 CANNON, supra note 5, § 512, pp. 705–08. See, e.g., 49 CONG. REC. 1447–48 (1913) (vote to disqualify Judge
Robert W. Archbald, thirty-nine yeas, thirty-five nays).
139 EMILY F.V. TASSEL & PAUL FINKELMAN, IMPEACHABLE OFFENSES: A DOCUMENTARY HISTORY FROM 1787 TO THE
PRESENT 114–16 (1999).
140 ELEANORE BUSHNELL, CRIMES, FOLLIES, AND MISFORTUNES: THE FEDERAL IMPEACHMENT TRIALS 123 (1992); see
U.S. CONST. art. I, § 3, cl. 7 (“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.”) [hereinafter
BUSHNELL].
141 U.S. CONST. art. I, § 3, cl. 7.
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The Constitution also distinguishes the impeachment remedy from the criminal process,
providing that an individual removed from office following impeachment “shall nevertheless be
liable and subject to indictment.”142 The Senate’s power to convict and remove individuals from
office, as well as to bar them from holding office in the future, thus does not overlap with
criminal remedies for misconduct. The unique nature of impeachment as a political remedy
distinct from criminal proceedings ensures that “the most powerful magistrates should be
amenable to the law.”143 Rather than helping police violations of strictly criminal activity,
impeachment is a “method of national inquest into the conduct of public men” for “the abuse or
violation of some public trust.”144 Impeachable offenses are those that “relate chiefly to injuries
done immediately to the society itself.”145 Put another way, the purpose of impeachment is to
protect the public interest, rather than impose a punitive measure on an individual.146 This
distinction was highlighted in the impeachment trial of federal district judge Alcee Hastings.
Judge Hastings had been indicted for a criminal offense, but was acquitted.147 In 1988, the House
impeached Hastings for much of the same conduct for which he had been indicted. Judge
Hastings argued that the impeachment proceedings constituted “double jeopardy” because of his
previous acquittal in a criminal proceeding.148 The Senate rejected his motion to dismiss the
articles against him.149 The Senate voted to convict and remove Judge Hastings on eight articles,
but it did not disqualify him from holding office in the future.150 Judge Hastings was later elected
to the House of Representatives.151
History of Impeachment in Congress
The Constitution provides that the President, Vice President, and all civil officers are subject to
impeachment for “treason, bribery, or other high Crimes and Misdemeanors.”152 The meaning of
high crimes and misdemeanors, like the other provisions in the Constitution relevant to
impeachment, is not primarily determined through the development of jurisprudence in the courts.
Instead, the meaning of the Constitution’s impeachment clauses is “liquidated” over time, or
determined through historical practice.153 The Framers did not delineate with specificity the
complete range of behavior that would merit impeachment, as the scope of possible “offenses
committed by federal officers are myriad and unpredictable.”154 According to one scholar,
142 See id. art. I, § 3, cl. 7.
143 WILSON, supra note 85, at 425–26.
144 See THE FEDERALIST NO. 65 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
145 Id.
146 8 ANNALS OF CONG. 2251 (1798).
147 H.R. Res. 499, 100th Cong., 2d Sess. (1988); H. COMM. ON THE JUDICIARY, IMPEACHMENT OF JUDGE ALCEE L.
HASTINGS, REPORT OF THE COMM. ON THE JUDICIARY TO ACCOMPANY H. RES. 499, 100TH CONG., 2D SESS., H.R. REP.
NO. 100-810, at 1–5, 66 (1988) [hereinafter HASTINGS IMPEACHMENT].
148 IMPEACHMENT OF JUDGE ALCEE L. HASTINGS, MOTIONS OF JUDGE ALEE L. HASTINGS TO DISMISS ARTICLES I–XV AND
XVII OF THE ARTICLES OF IMPEACHMENT AGAINST HIM AND SUPPORTING AND OPPOSING MEMORANDA, 101ST CONG., 1ST
SESS., S. DOC. NO. 101-4, at 48–65 (1989).
149 The Impeachment Trial of Alcee L. Hastings (1989) U.S. District Judge, Florida, U.S. SENATE,
https://www.senate.gov/artandhistory/history/common/briefing/Impeachment_Hastings.htm (last visited Oct. 25, 2019).
150 135 CONG. REC. S13, 783–88 (daily ed. Oct. 20, 1989).
151 See Waggoner v. Hastings, 816 F. Supp. 716 (S.D. Fla. 1993).
152 U.S. CONST. art. II, § 4.
153 THE FEDERALIST NO. 37 (James Madison); Letter from James Madison to Spencer Roane, supra note 14, at 450.
154 Keith E. Whittington, A Formidable Weapon of Faction? The Law and Politics of Impeachment, 55 WAKE FOREST
(continued...)
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impeachments are sometimes “aimed at articulating, establishing, preserving, and protecting
constitutional norms,” or “‘constructing’ constitutional meaning and practices.”155 At times,
impeachment might be used to reinforce an existing norm, indicating that certain behavior
continues to constitute grounds for removal; in others, it may be used to establish a new norm,
setting a marker that signifies what practices are impeachable for the future.156 Examining the
history of impeachment in Congress can thus illuminate the constitutional meaning of
impeachment, including when Congress has established or reaffirmed a particular norm.
Early Historical Practices (1789–1860)
Congressional understanding of the scope of activities subject to impeachment and the potential
persons who may be impeached was first put to the test during the Adams Administration. In
1797, letters sent to President Adams revealed a conspiracy by Senator William Blount—in
violation of the U.S. government’s policy of neutrality on the matter and the Neutrality Act157—to
organize a military expedition with the British to invade land in the American Southwest under
Spanish control.158 The House voted to impeach Senator Blount on July 7, 1797,159 while the
Senate voted to expel Senator William Blount the next day.160 Before impeaching Senator Blount,
several House Members questioned whether Senators were “civil officers” subject to
impeachment.161 Samuel W. Dana of Connecticut argued that Members of Congress must be civil
officers because other provisions of the Constitution that mention offices appear to include
holding legislative office.162 Despite already having voted to impeach Senator Blount, it was not
until early in the next year that the House adopted specific articles of impeachment against
him.163
At the Senate impeachment trial in 1799, Blount’s attorneys argued that impeachment was
improper because Blount had already been expelled from his Senate seat and had not been
charged with a crime.164 The primary issue of debate, however, was whether Members of
Congress qualified as civil officers subject to impeachment. The House prosecutors argued that
under the American system, as in England, virtually anyone was subject to impeachment.165 The
L. REV. 381, 396 (2020); III STORY, supra note 13, § 764 (“Not but that crimes of a strictly legal character fall within
the scope of the power, (for, as we shall presently see, treason, bribery, and other high crimes and misdemeanours are
expressly within it;) but that it has a more enlarged operation, and reaches, what are aptly termed, political offences,
growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests, in the
discharge of the duties of political office. These are so various in their character, and so indefinable in their actual
involutions, that it is almost impossible to provide systematically for them by positive law.”); id. § 797 (“Again, there
are many offences, purely political, which have been held to be within the reach of parliamentary impeachments, not
one of which is in the slightest manner alluded to in our statute book. And, indeed, political offences are of so various
and complex a character, so utterly incapable of being defined, or classified, that the task of positive legislation would
be impracticable, if it were not almost absurd to attempt it.”).
155 Whittington, supra note 154, at 17–18 (quoting WHITTINGTON, supra note 13).
156 Id.
157 1 Stat. 381, 384 § 5 (June 5, 1794) (codified as amended at 18 U.S.C. § 960).
158 See generally BUCKNER F. MELTON, THE FIRST IMPEACHMENT: THE CONSTITUTION’S FRAMERS AND THE CASE OF
SENATOR WILLIAM BLOUNT 60–103 (1998); GERHARDT, supra note 15, at 48; CURRIE, supra note 129, at 275–81.
159 TASSEL & FINKELMAN, supra note 139, at 87–88.
160 GERHARDT, supra note 15, at 48; see U.S. CONST. art. I, § 5.
161 CURRIE, supra note 129, at 276.
162 Id. (citing U.S. CONST. art. I, §§ 3–9).
163 TASSEL & FINKELMAN, supra note 139, at 87–88; see generally MELTON, supra note 158, at 104–89.
164 CURRIE, supra note 129, at 277.
165 Id. at 279.
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defense responded that this broad interpretation of the impeachment power would enable
Congress to impeach state officials as well as federal, upending the proper division of federal and
state authorities in the young Republic.166 The Senate voted to defeat a resolution that declared
Blount was a “civil officer” and therefore subject to impeachment.167 The Senate ultimately voted
to dismiss the impeachment articles brought against Blount because it lacked jurisdiction over the
matter, although the impeachment record does not reveal the precise basis for this conclusion.168
The House has not impeached a Member of Congress since.
The first federal official to be impeached and removed from office was John Pickering, a federal
district judge. The election of President Thomas Jefferson in 1800, along with Jeffersonian
Republican majorities in both Houses of Congress, signaled a shift from Federalist party control
of government.169 Much of the federal judiciary at this early stage of the Republic were members
of the Federalist party, and the new Jeffersonian Republican majority strongly opposed the
Federalist-controlled courts.170 John Pickering was impeached by the House of Representatives in
1803171 and convicted by the Senate on March 12, 1804.172 The circumstances of Judge
Pickering’s impeachment are somewhat unique as it appears that the judge had been mentally ill
for some time, although the articles of impeachment did not address Pickering’s mental faculties
but instead accused him of drunkenness, blasphemy on the bench, and refusing to follow legal
precedent.173 Judge Pickering did not appear at his trial, and Senator John Quincy Adams
apparently served as a defense counsel.174 Following debate in a closed session, the Senate voted
to permit evidence of Judge Pickering’s insanity, drunkenness, and behavior on the bench.175 The
Senate also rejected a resolution to disqualify three Senators, who were previously in the House
and had voted to impeach Judge Pickering, from participating in the impeachment trial.176 The
Senate voted to convict Judge Pickering guilty as charged, but the articles did not explicitly
specify that any of Pickering’s behavior constituted a high crime or misdemeanor.177 Objections
to the framing of the question at issue caused several Senators to withdraw from the trial.178
166 Id.
167 8 ANNALS OF CONG. 2317–18 (1799).
168 HOFFER & HULL, supra note 19, at 155, 161. 9 ANNALS OF CONG. 2648–49 (1799). CURRIE, supra note 129, at 280–
81. While the Senate’s vote to dismiss for lack of jurisdiction might also be based on the fact that the Senator had been
expelled from Congress, and therefore did not occupy an “office,” it is generally accepted that the Senate’s decision
stands for the proposition that impeachment does not extend to Members of Congress. See HOUSE PRACTICE, supra note
6, at ch. 27 §§ 2–3.; H. COMM. ON THE JUDICIARY, 93D CONG., IMPEACHMENT, SELECTED MATERIAL 692 (Comm. Print
1973) [hereinafter IMPEACHMENT, SELECTED MATERIALS]; Motions Sys. Corp. v. Bush, 437 F.3d 1356, 1373 (Fed. Cir.
2006) (per curiam) (“This principle has been accepted since 1799, when the Senate, presented with articles of
impeachment against Senator William Blount, concluded after four days of debate that a Senator was not a civil officer
. . . for purposes of the Impeachment Clause.”)
169 HOFFER & HULL, supra note 19, at 181.
170 Id. at 206.
171 See 12 ANNALS OF CONG. 642 (1803); 13 ANNALS OF CONG. 380 (1803).
172 See 13 ANNALS OF CONG. 368 (1804); HOFFER & HULL, supra note 19, at 208, 216–17.
173 BUSHNELL, supra note 140, at 45–46.
174 HOFFER & HULL, supra note 19, at 211–13.
175 BUSHNELL, supra note 140, at 48–51. Scholars have noted that the Senate vote in favor of admitting evidence of
insanity likely stemmed from two opposing reasons. The minority party Federalists—of which Judge Pickering was a
member—considered evidence of insanity a reason to acquit the judge because it was not an impeachable offense. The
majority party Republicans, in contrast, considered insanity a reason to remove him from the bench. Id. at 48–49.
176 Id. at 46–47.
177 13 ANNALS OF CONG. 367 (1804); BUSHNELL, supra note 140, at 53–54.
178 BUSHNELL, supra note 140, at 53–54.
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On the same day the Senate convicted Judge Pickering, the House of Representatives impeached
Supreme Court Justice Samuel Chase.179 Like the impeachment trial of Judge Pickering, the
proceedings occurred following the election of President Thomas Jefferson and amid intense
conflict between the Federalists and Jeffersonian Republicans.180 Justice Chase was viewed by
Jeffersonian Republicans as openly partisan, and in fact the Justice openly campaigned for
Federalist John Adams in the presidential election of 1800.181 Republicans also took issue with
Justice Chase’s aggressive approach to jury instructions in Sedition Act prosecutions.182 The eight
articles of impeachment accused him of acting in an “arbitrary, oppressive, and unjust” manner at
trial, misapplying the law, and expressing partisan political views to a grand jury.183 The Senate
trial began on February 4, 1805. Both the House Managers and defense counsel for Justice Chase
presented witnesses detailing the Justice’s behavior.184 While some aspects of the dispute focused
on whether Justice Chase took certain actions, the primary conflict centered on whether his
behavior was impeachable.185 Before reaching a verdict, the Senate approved a motion from
Senator James Bayard, a Federalist from Delaware, that the underlying question be whether
Justice Chase was guilty of high crimes and misdemeanors, rather than guilty as charged.186 Of
the eight articles, a majority of Senators voted to convict on three, while the remaining five did
not muster a majority for conviction.187 Despite that majority, the Senate vote ultimately fell short
of the necessary two-thirds majority to secure a conviction on any of the articles.188
The trial raised several questions that have recurred throughout the history of impeachments. For
example, is impeachment limited to criminal acts, or does it extend to noncriminal behavior?189
The opposing sides in the Chase case took differing views on this matter, as they would in later
impeachments to come.190 Due in part to the charged political atmosphere of the historical
context, the attempted impeachment of Justice Chase has also come to represent an important
limit on the scope of the impeachment remedy. Commentators have interpreted the acquittal of
Justice Chase as establishing that impeachment does not extend to congressional disagreement
179 TASSEL & FINKELMAN, supra note 139, at 101; 13 ANNALS OF CONG. 363–68 (1804) (Senate conviction of Judge
Pickering); 13 ANNALS OF CONG. 1180–81 (1804) (House impeachment of Justice Chase).
180 HOFFER & HULL, supra note 19, at 228–38.
181 BUSHNELL, supra note 140, at 62–63.
182 See CHAFETZ, supra note 20, at 108.
183 IMPEACHMENT, SELECTED MATERIALS, supra note 168, at 133–35.
184 BUSHNELL, supra note 140, at 63–73.
185 Id. at 67–84; see GERHARDT, supra note 15, at 181.
186 BUSHNELL, supra note 140, at 84.
187 14 ANNALS OF CONG. 664–69 (1804); TASSEL & FINKELMAN, supra note 139, at 103.
188 TASSEL & FINKELMAN, supra note 139, at 103.
189 BUSHNELL, supra note 140, at 82–87.
190 See NIXON IMPEACHMENT, supra note 116, at 362–72 (minority views); 3 DESCHLER, supra note 95, at Ch. 14 §§
3.8–3.11, pp. 1996–2003.
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with a judge’s opinions or judicial philosophy.191 At least some Senators who voted to acquit did
not consider the alleged offenses as rising to the level of impeachable behavior.192
By the time of the next impeachment in 1830, both houses of Congress were controlled by
Jacksonian Democrats, and the federal courts were unpopular with Congress and the public.193
The House of Representatives impeached James Peck, a federal district judge, for abusing his
judicial authority. The sole article accused the judge of holding an attorney in contempt for
publishing an article critical of Peck and barring the attorney from practicing law for eighteen
months. The context surrounding Judge Peck’s actions involved disputes over French and Spanish
land grant titles following the transfer of land in the Louisiana territory from French to U.S.
control.194 Shortly after Missouri was admitted to the United States as part of the Missouri
Compromise in 1821, Judge Peck decided a land rights case against the claimants in favor of the
United States.195 The attorney for the plaintiffs wrote an article critical of the decision in a local
paper.196 Judge Peck held the attorney in contempt, sentenced him to jail for twenty-four hours,
and barred him from practicing law for eighteen months.197
The House impeached Judge Peck by a wide margin.198 Of central concern during the Senate trial
were the limits of a judge’s common law contempt power, a matter that appeared to be in
dispute.199 The Senate ultimately acquitted Judge Peck, with roughly half of the Jacksonian
Democrats voting against conviction.200 Shortly thereafter, Congress passed a law reforming and
defining the scope of the judicial contempt power.201
In the midst of the Civil War, federal district judge West H. Humphreys was appointed to a
position as a judge in the Confederate government, but he did not resign as a U.S. federal
judge.202 In 1862, the House impeached and the Senate convicted Judge Humphreys for joining
the Confederate government and abandoning his position.203 As in the trial of Judge Pickering
previously, Judge Humphreys did not attend the proceedings.204 Unlike in the case of Judge
Pickering, however, no defense was offered in the impeachment trial of Judge Humphreys.205
191
See David P. Currie, The Constitution in Congress: The Most Endangered Branch, 1801–1805, 33 WAKE FOREST L.
REV. 219, 259 (1998); REHNQUIST, supra note 132, at 114, 125; CHAFETZ, supra note 20, at 150. This is not to say that
impeachment had no effect on Justice Chase, see id. at 109 (arguing that Justice Chase returned to the bench “humbled”
and that one result of the affair was that the Marshall Court “made its peace with Republican politics); or the judiciary
more broadly. See REHNQUIST, supra note 132, at 125; Gene Healy, Indispensable Remedy: The Broad Scope of the
Constitution’s Impeachment Power, CATO INST. 21–22 (2018), https://www.cato.org/sites/cato.org/files/pubs/pdf/genehealy-indispensable-remedy-white-paper.pdf (noting that a result of the Chase impeachment was to “foster a new norm
against blatant partisanship from the bench”). For a discussion of the implications of the Chase impeachment for the
judiciary, see WHITTINGTON, supra note 13, at 20–71.
192 See Gerhardt, Perspective, supra note 34, at 921.
193 BUSHNELL, supra note 140, at 91.
194 TASSEL & FINKELMAN, supra note 139, at 108–09; BUSHNELL, supra note 140, at 92.
195
TASSEL & FINKELMAN, supra note 139, at 108–09.
196 Id.
197 Id.
198 6 CONG. DEB. 818–19 (1830).
199 BUSHNELL, supra note 140, at 91–113.
200 7 CONG. DEB. 45 (1831).
201 See Act of Mar. 2, 1831, ch. 98, 4 Stat. 487.
202 TASSEL & FINKELMAN, supra note 139, at 114–16.
203 3 HINDS, supra note 5, §§ 2385–86, pp. 805–07; see also id. § 2390, pp. 810–11; id. § 2396–97, pp. 817–20.
204 BUSHNELL, supra note 140, at 115.
205 Id.
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Impeachment of Andrew Johnson
The impeachment and trial of President Andrew Johnson took place in the shadow of the Civil
War and the assassination of President Abraham Lincoln.206 President Johnson was a Democrat
and former slave owner who was the only southern Senator to remain in his seat when the South
seceded from the Union.207 President Lincoln, a Republican, appointed Johnson military governor
of Tennessee in 1862,208 and Johnson was later selected as Lincoln’s second-term running mate
on a “Union” ticket.209 Given these unique circumstances, President Johnson lacked both a party
and geographic power base when in office, which likely isolated him when he assumed the
presidency following the assassination of President Lincoln.210
The majority Republican Congress and President Johnson clashed over, among other things,
Reconstruction policies implemented in the former slave states and control over officials in the
executive branch.211 President Johnson vetoed twenty-one bills while in office, compared to
thirty-six vetoes by all prior Presidents. Congress overrode fifteen of Johnson’s vetoes, compared
to just six with prior Presidents.212 On March 2, 1867, Congress reauthorized, over President
Johnson’s veto, the Tenure of Office Act, extending its protections for all officeholders.213 In
essence, the Act provided that all federal officeholders subject to Senate confirmation could not
be removed by the President except with Senate approval,214 although the reach of this
requirement to officials appointed by a prior administration was unclear.215 Congressional
Republicans apparently anticipated the possible impeachment of President Johnson when drafting
the legislation; Republicans already knew of President Johnson’s plans to fire Secretary of War
Edwin Stanton, and the Act provided that a violation of its terms constituted a “high
misdemeanor.”216
President Johnson then fired Secretary Stanton without the approval of the Senate. Importantly,
his Cabinet unanimously agreed that the new restrictions on the President’s removal power
imposed by the Tenure of Office Act were unconstitutional.217 Shortly thereafter, on February 24,
1868, the House voted to impeach President Johnson.218 The impeachment articles adopted by the
House against President Johnson included defying the Tenure of Office Act by removing Stanton
from office219 and violating (and encouraging others to violate) the Army Appropriations Act.220
206 See REHNQUIST, supra note 132, at 185–98.
207 BUSHNELL, supra note 140, at 128.
208 Id.
209 TASSEL & FINKELMAN, supra note 139, at 222.
210 BUSHNELL, supra note 140, at 128.
211 See WHITTINGTON, supra note 13, at 113–57; see generally MICHAEL LES BENEDICT, THE IMPEACHMENT AND TRIAL
OF ANDREW JOHNSON 1–25 (1973).
212 TASSEL & FINKELMAN, supra note 139, at 222–23.
213 Tenure of Office Act, 14 Stat. 430 (1867); TASSEL & FINKELMAN, supra note 139, at 224.
214 Tenure of Office Act, 14 Stat. 430 (1867); see Michael J. Gerhardt, Constitutional Arrogance, 164 U. PA. L. REV.
1649, 1663 (2016).
215 REHNQUIST, supra note 132, at 228.
216 LES BENEDICT, supra note 211, at 92–125.
217 REHNQUIST, supra note 132, at 230.
218 CONG. GLOBE, 40th Cong., 2nd Sess. 1400 (1868).
219 See Act of Mar. 2, 1867, ch. 154, § 6, 14 Stat. 430. Incidentally, such tenure protections were later invalidated as
unconstitutional by the Supreme Court. See Myers v. United States, 272 U.S. 52, 106–07 (1926).
220 TASSEL & FINKELMAN, supra note 139, at 226.
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One article of impeachment also accused the President of making “utterances, declarations,
threats, and harangues” against Congress.221
The Senate appointed a committee to recommend rules of procedure for the impeachment trial
which then were adopted by the Senate, including a one-hour time limit for each side to debate
questions of law that would arise during the trial.222 Chief Justice Salmon P. Chase presided over
the trial and was sworn in by Associate Justice Samuel Nelson.223 During the swearing-in of the
individual Senators, the body paused to debate whether Senator Benjamin Wade of Indiana, the
president pro tempore of the Senate, was eligible to participate in the trial. Because the office of
the Vice President was empty, under the laws of succession at that time Senator Wade would
assume the presidency upon a conviction of President Johnson. Ultimately, the Senator who
raised this point, Thomas Hendricks of Indiana, withdrew the issue and Senator Wade was sworn
in.224
An important point of contention at the trial was whether the Tenure of Office Act protected
Stanton at all because of his appointment by President Lincoln, rather than President Johnson.225
Counsel for President Johnson argued that impeachment for violating a statute whose meaning
was unclear was inappropriate, and the statute barring removal of the Secretary of War was an
unconstitutional intrusion into the President’s authority under Article II.226
The Senate failed to convict President Johnson with a two-thirds majority by one vote on three
articles, and it failed to vote on the remaining eight.227 Reports suggest that several Senators were
prepared to acquit if their votes were needed.228 Seven Republicans voted to acquit; of those
Senators, some thought it questionable whether the Tenure of Office Act applied to Stanton and
believe it was improper to impeach a President for incorrectly interpreting an arguably ambiguous
law.229
The implications of the acquittal of President Johnson are difficult to encapsulate neatly.230 Some
commentators have concluded that the failure to convict President Johnson coincides with a
general understanding that while impeachment is appropriate for abuses of power or violations of
the public trust, it does not pertain to political or policy disagreements with the President, no
matter how weighty.231 Of course, it bears mention that by the time of the Senate trial Johnson
was in the last year of his Presidency, was not going to receive a nomination for President by
either major political party for the next term, and appears to have promised in private to appoint a
replacement for Stanton that could be confirmable.232 More broadly, the Johnson impeachment
221 Id. at 235.
222 REHNQUIST, supra note 132, at 219–20.
223 Id. at 221.
224 See generally AKHIL REED AMAR, AMERICA’S UNWRITTEN CONSTITUTION (2012).
225 REHNQUIST, supra note 132, at 221.
226 Id. at 230–31.
227 3 HINDS, supra note 5, § 2440 (vote on article 11); id. § 2443, pp. 897–901 (vote on articles 2 and 3); see
REHNQUIST, supra note 132, at 234–35.
228 TASSEL & FINKELMAN, supra note 139, at 221; see generally HANS L. TREFOUSSE, IMPEACHMENT OF A PRESIDENT:
ANDREW JOHNSON, THE BLACKS, AND RECONSTRUCTION 169 (1975).
229 REHNQUIST, supra note 132, at 240–46.
230 See generally WHITTINGTON, supra note 13, at 115; TREFOUSSE, supra note 228, at 180–90.
231 HOFFER & HULL, supra note 19, at 101; Gerhardt, Perspective, supra note 34, at 921–22. This is not to say that the
acquittal of President Johnson necessarily was a triumph or vindication of his actions. See WHITTINGTON, supra note
13, at 152 (arguing that “Johnson had been disciplined and his actions repudiated, even if he had not been removed”).
232 REHNQUIST, supra note 132, at 247.
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also represented a larger struggle between Congress and the President over the scope of executive
power, one that arguably reconstituted their respective roles following the Civil War presidency
of Abraham Lincoln.233
Postbellum Practices (1865–1900)
The postbellum experience in American history saw a variety of government officials impeached
on several different grounds. These examples provide important principles that guide the practice
of impeachment through the present day. For example, the Senate has not always conducted a
trial following an impeachment by the House. In 1873, the House impeached federal district
judge Mark. H. Delahay for, among other things, drunkenness on and off the bench.234 The
impeachment followed an investigation by a subcommittee of the House Judiciary Committee
into his conduct.235 Following the House vote on impeachment, Judge Delahay resigned before
written impeachment articles were drawn up, and the Senate did not hold a trial.236 The
impeachment of Judge Delahay shows that the scope of impeachable behavior is not limited to
strictly criminal behavior; Congress has been willing to impeach individuals for behavior that is
not indictable, but still constitutes an abuse of an individual’s power and duties.
This period of American history was fraught with partisan conflict over Reconstruction.237
Besides President Johnson, a number of other individuals were investigated by Congress during
this time for purposes of impeachment. For example, in 1873, the House voted to authorize the
House Judiciary Committee to investigate the behavior of Edward H. Durrell, federal district
judge for Louisiana.238 A majority of the House Judiciary Committee reported in favor of
impeaching Judge Durell for corruption and usurpation of power, including interfering with the
state’s election.239 Judge Durrell resigned on December 1, 1874, and the House discontinued
impeachment proceedings.240
The first and only time a Cabinet-level official was impeached occurred during the presidential
administration of Ulysses S. Grant. Grant’s Secretary of War, William W. Belknap, was
impeached in 1876 for allegedly receiving payments in return for appointing an individual to
maintain a trading post in Indian territory.241 Belknap resigned two hours before the House
unanimously impeached him,242 but the Senate still conducted a trial in which Belknap was
acquitted.243 During the trial, upon objection by Belknap’s counsel that the Senate lacked
jurisdiction because Belknap was now a private citizen, the Senate voted 37–29 in favor of
jurisdiction.244 A majority of Senators voted to convict Belknap, but no article mustered a twothirds majority, resulting in acquittal. A number of Senators voting to acquit indicated that they
233 See WHITTINGTON, supra note 13, at 132–40.
234 3 HINDS, supra note 5, §§ 2504–05, pp. 1008–10; HOUSE PRACTICE, supra note 6, at ch. 27 § 4.
235 3 HINDS, supra note 5, §§ 2504–05, pp. 1008–10.
236 TASSEL & FINKELMAN, supra note 139, at 119.
237 See generally ERIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION, 1863–77 (1988).
238 3 HINDS, supra note 5, §§ 2506–08, pp. 1011–14.
239 Id.
240 Id. § 2509, pp. 1015–16. For a defense of Judge Durell’s actions in the matters in question, see Charles Lane,
Edward Henry Durell: A Study in Reputation, 13 GREEN BAG 2D 153, 153–68 (2010).
241 3 HINDS, supra note 5, §§ 2444–46, pp. 902–06; see CONSTITUTIONAL GROUNDS supra note 18, at 20.
242 BUSHNELL, supra note 140, at 165.
243 3 HINDS, supra note 5, §§ 2446–68, pp. 906–47.
244 Id. §§ 2459–60, pp. 933–36. Two of the thirty-seven voting “guilty” and twenty-two of the twenty-five voting “not
guilty” stated that they believed the Senate lacked jurisdiction in the case. Id. § 2467, pp. 945–46.
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did so because the Senate lacked jurisdiction over an individual no longer in office.245 Although
bribery is explicitly included as an impeachable offense in the Constitution, the impeachment
articles brought against Belknap instead charged his behavior as constituting high crimes and
misdemeanors.246 Bribery was mentioned at the Senate trial, but it was not specifically referenced
in the impeachment articles themselves.247
Early Twentieth Century Practices
The twentieth century saw further development of the scope of conduct considered by Congress
to be impeachable, including the extent to which noncriminal conduct can constitute impeachable
behavior and the proper role of a federal judge. The question of judicial review of impeachments
also received its first treatment in the federal courts.
The question of whether Congress can designate particular behavior as a “high crime or
misdemeanor” by statute arose in the impeachment of Charles Swayne, a federal district judge for
the Northern District of Florida, during the first decade of the twentieth century. A federal statute
provided that federal district judges live in their districts and that anyone violating this
requirement was “guilty of a high misdemeanor.”248 Judge Swayne’s impeachment originated
from a resolution passed by the Florida legislature requesting the state’s congressional delegation
to recommend an investigation into his behavior.249 The procedures followed by the House in
impeaching Judge Swayne were somewhat unique. First, the House referred the impeachment
request to the Judiciary Committee for investigation. Following this investigation, the House
voted to impeach Judge Swayne based on the report prepared by the committee.250 The committee
was then tasked with preparing articles of impeachment to present to the Senate.251 The House
then voted again on these individual articles, each of which received less support than the single
prior impeachment vote had received.252 The impeachment articles accused Judge Swayne of a
variety of offenses, including misusing the office, abusing the contempt power, and living outside
his judicial district. At the trial in the Senate, Judge Swayne essentially admitted to certain
accused behavior, although his attorneys did dispute the residency charge, and Swayne instead
argued that his actions were not impeachable.253 The Senate vote failed to convict Judge Swayne
on any of the charges brought by the House.254
The impeachability of certain noncriminal behavior for federal judges was firmly established by
the impeachment of Judge Robert W. Archbald in 1912. Judge Archbald served as a federal
district judge before being appointed to the short-lived U.S. Commerce Court, which was created
to review decisions of the Interstate Commerce Commission.255 He was impeached by the House
for behavior occurring both as a federal district judge and as a judge on the Commerce Court.256
245 BUSHNELL, supra note 140, at 186.
246 See U.S. CONST. art. II, § 4.
247 BUSHNELL, supra note 140, at 170.
248 REVISED STATUTES OF THE UNITED STATES PASSED AT THE FIRST SESS. OF THE FORTY-THIRD CONG., 1873–’74, Title
XIII, Ch. 2 § 551 (2d ed., 1878); TASSEL & FINKELMAN, supra note 139, at 123–24.
249 BUSHNELL, supra note 140, at 191.
250 39 CONG. REC. 248 (1904).
251 BUSHNELL, supra note 140, at 191–92.
252 Id. at 191–93.
253 TASSEL & FINKELMAN, supra note 139, at 123–25.
254 39 CONG. REC. 3467–72 (1905).
255 TASSEL & FINKELMAN, supra note 139, at 132.
256 48 CONG. REC. 8904–34 (1912).
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The impeachment articles accused Judge Archbald of, among other things, using his position as a
judge to generate profitable business deals with potential future litigants in his court.257 This
behavior did not violate any criminal statute and did not appear to violate any laws regulating
judges.258 Judge Archbald argued at trial that noncriminal conduct was not impeachable. The
Senate voted to convict him on five articles and also voted to disqualify him from holding office
in the future.259 Four of those articles centered on behavior that occurred while Judge Archbald
sat on the Commerce Court, whereas the fifth described his conduct over the course of his
career.260
In the 1920s, a series of corruption scandals swirled around the administration of President
Warren G. Harding. Most prominently, the Teapot Dome Scandal, which involved the
noncompetitive lease of government land to oil companies, implicated many government officials
and led to resignations and the criminal conviction and incarceration of a Cabinet-level official.261
The Secretary of the Navy, at the time Edwin Denby, was entrusted with overseeing the
development of oil reserves that had recently been located. The Secretary of the Interior, Albert
Fall, convinced Denby that the Interior Department should assume responsibility for two of the
reserve locations, including in Teapot Dome, Wyoming.262 Secretary Fall then leased the reserves
to two of his friends, Harry F. Sinclair and Edward L. Doheny.263 Revelations of the lease without
competitive bidding launched a lengthy congressional investigation that sparked the eventual
criminal conviction of Fall for bribery and conspiracy and Sinclair for jury tampering.264
President Harding, however, died in 1923, before congressional hearings began. The affair also
generated significant judicial decisions examining the scope of Congress’s investigatory
powers.265
One aspect of the controversy included an impeachment investigation into the decisions of thenAttorney General Harry M. Daugherty.266 In 1922, the House of Representatives referred a
resolution to impeach Daugherty for a variety of activities, including his failure to prosecute those
involved in the Teapot Dome Scandal, to the House Judiciary Committee.267 The House Judiciary
Committee eventually found there was not sufficient evidence to impeach Daugherty. But in
1924, a Senate special committee was formed to investigate similar matters.268 That investigation
257 TASSEL & FINKELMAN, supra note 139, at 133.
258 Id. at 134.
259 49 CONG. REC. 1438–48 (1913).
260 BUSHNELL, supra note 140, at 221.
261 See HASIA DINER, THE TEAPOT DOME SCANDAL, 1922–24, in 1 CONGRESS INVESTIGATES: A CRITICAL AND
DOCUMENTARY HISTORY 460–74 (Roger A. Brunset al. eds., 2011) [hereinafter DINER].
262 Id. at 461.
263 Id.
264 Id. at 463–74.
265 See McGrain v. Daugherty, 273 U.S. 135, 174–75 (1927) (“We are of opinion that the power of inquiry-with process
to enforce it-is an essential and appropriate auxiliary to the legislative function.”); Sinclair v. United States, 279 U.S.
263, 295 (1929) (observing that Congress has authority to require disclosures in aid of its constitutional powers),
overruled on other grounds by United States v. Gaudin, 515 U.S. 506 (1995).
266 6 CANNON, supra note 5, §§ 536–38, pp. 769–73.
267 See 62 CONG. REC. 12,381 (1922); see generally H. COMM. ON THE JUDICIARY, 67TH CONG., CHARGES OF HON.
OSCAR E. KELLER AGAINST THE ATTORNEY GENERAL AND THE ATTORNEY GENERAL’S ANSWERS THERETO BEFORE THE
COMMITTEE ON THE JUDICIARY, HOUSE OF REPRESENTATIVES, SIXTY-SEVENTH CONG., THIRD SESS. ON H. RES. 425
(Comm. Print 1922).
268 S. Res. 157, 68th Cong., 1st Sess. (1924); Hearings Before the Select Committee on Investigation of the Attorney
General, United States Senate, Investigation of Hon. Harry M. Daugherty, Formerly Attorney General of the United
States, 68th Cong., 1st Sess. (1924).
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spawned allegations of many improper activities in the Justice Department. Daugherty resigned
on March 28, 1924.269
In 1926, federal district judge George W. English was impeached for a variety of alleged offenses,
including (1) directing a U.S. marshal to gather a number of state and local officials into court in
an imaginary case in which Judge English proceeded to denounce them; (2) threatening two
members of the press with imprisonment without sufficient cause; and (3) showing favoritism to
certain litigants before his court.270 Judge English resigned before a trial in the Senate occurred;
and the Senate dismissed the charges without conducting a trial in his absence.271
Federal district judge Harold Louderback was impeached in 1933 for showing favoritism in the
appointment of bankruptcy receivers, which were coveted positions following the stock market
crash of 1929 and the ensuing Depression.272 The House authorized a subcommittee to
investigate, which held hearings and recommended to the Judiciary Committee that Judge
Louderback be impeached.273 The Judiciary Committee actually voted against recommending
impeachment, urging censure of Judge Louderback instead, but permitted the minority report that
favored impeachment to be reported to the House together with the majority report.274 The full
House voted to impeach anyway,275 but the Senate failed to convict him.276
Shortly thereafter, the House impeached federal district judge Halsted L. Ritter for showing
favoritism in and profiting from appointing receivers in bankruptcy proceedings; practicing law
while a judge; and failing to fully report his income on his tax returns.277 The Senate acquitted
Judge Ritter on each individual count alleging specific behavior, but convicted him on the final
count which referenced the previous articles, and charged him with bringing his court into
disrepute and undermining the public’s confidence in the judiciary.278
Congress’s impeachment of Judge Ritter was the first to be challenged in court.279 Judge Ritter
sued in the Federal Court of Claims seeking back pay, arguing that the charges brought against
him were not impeachable under the Constitution and that the Senate improperly voted to acquit
on six specific articles but to convict on a single omnibus article.280 In rejecting Judge Ritter’s
suit, the court held that the Senate has exclusive jurisdiction over impeachments and courts lack
authority to review the Senate’s verdict.281
269 See DINER, supra note 261, at 471.
270 67 CONG. REC. 6705–55 (1926); 6 CANNON, supra note 5, §§ 544–45, pp. 778–81.
271 TASSEL & FINKELMAN, supra note 139, at 144–46.
272 76 CONG. REC. 4913–26 (1933); 6 CANNON, supra note 5, §§ 513–20, pp. 709–30.
273 BUSHNELL, supra note 140, at 245.
274 Id. at 246.
275 Id. at 247.
276 77 CONG. REC. 4064–88 (1933).
277 80 CONG. REC. 3066–92 (1936); TASSEL & FINKELMAN, supra note 139, at 157.
278 80 CONG. REC. 5602–08 (1936); See PROCEEDINGS OF THE U.S. SENATE IN THE TRIAL OF IMPEACHMENT OF HALSTED
L. RITTER, UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA, 74TH CONG., 2D SESS., S. DOC.
NO. 74-200, at 637–38 (1936) [hereinafter RITTER IMPEACHMENT]; TASSEL & FINKELMAN, supra note 139, at 158–59.
279 Ritter v. United States, 84 Ct. Cl. 293, 296 (1936).
280 BUSHNELL, supra note 140, at 286–87.
281 Ritter, 84 Ct. Cl. at 298.
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Effort to Impeach President Richard Nixon
The impeachment investigation and ensuing resignation of President Richard Nixon stands out as
a profoundly important experience informing the standard for the impeachment of Presidents.282
Although President Nixon was never impeached by the House or subjected to a trial in the Senate,
his conduct exemplifies for many authorities, scholars, and members of the public the
quintessential case of impeachable behavior in a President.
Less than two years after a landslide reelection as President, Richard Nixon resigned following
the House Judiciary Committee’s adoption of three articles of impeachment against him.283 The
circumstances surrounding the impeachment of President Nixon were sparked by the arrest of
five men for breaking into the Democratic National Committee Headquarters at the Watergate
Hotel and Office Building. The arrested men were employed by the committee to Re-Elect the
President (CRP), a campaign organization formed to support President Nixon’s reelection.284
In the early summer of 1973, Attorney General Elliot Richardson appointed Archibald Cox as a
special prosecutor to investigate the connection between the five burglars and CRP. Likewise, the
Senate Select Committee on Presidential Campaign Activities began its own investigation.285
After President Nixon fired various staffers allegedly involved in covering up the incident, he
spoke on national television disclaiming knowledge of the cover-up. But the investigations
uncovered evidence that President Nixon was involved, that he illegally harassed his enemies
through, among other things, the use of tax audits, and that the men arrested for the Watergate
break-in—the “plumbers unit,” because they were used to “plug leaks” considered damaging to
the Nixon Administration—had committed burglaries before.286 Eventually a White House aide
revealed that the President had a tape recording system in his office, raising the possibility that
many of Nixon’s conversations about the Watergate incident were recorded.287
The President refused to hand over such tapes to the special prosecutor or Congress. In his
capacity as special prosecutor, Cox then subpoenaed tapes of conversations in the Oval Office on
Saturday, October 20, 1973. This sparked the sequence of events commonly known as the
Saturday Night Massacre.288 In response to the subpoena, President Nixon ordered Attorney
General Elliot Richardson to fire Special Prosecutor Cox. Richardson refused and resigned.
Nixon ordered Deputy Attorney General William D. Ruckelshaus to fire the special prosecutor,
but Ruckelshaus also refused to do so and resigned. Solicitor General Robert Bork, in his capacity
as Acting Attorney General, then fired the special prosecutor.289 Nixon eventually agreed to
deliver some of the subpoenaed tapes to the judge supervising the grand jury. The Justice
Department appointed Leon Jaworski to replace Cox as special prosecutor.
The House Judiciary Committee began an official investigation of the Watergate issue and
commenced impeachment hearings in April 1974.290 On March 1, 1974, a grand jury indicted
seven individuals connected to the larger Watergate investigation and named the President as an
282 For a more detailed account of the Watergate Scandal, see STANLEY I. KUTLER, THE WARS OF WATERGATE (1990).
283 See Carroll Kilpatrick, Nixon Resigns, WASH. POST, Aug. 9, 1974, at A1.
284 KUTLER, supra note 282, at 187–211.
285 Id. at 323–49; TASSEL & FINKELMAN, supra note 139, at 255–56.
286 TASSEL & FINKELMAN, supra note 139, at 255–56; KUTLER, supra note 282, at 111–16, 351–72.
287 TASSEL & FINKELMAN, supra note 139, at 256–57.
288 JERRY ZEIFMAN, WITHOUT HONOR: CRIMES OF CAMELOT AND THE IMPEACHMENT OF PRESIDENT NIXON 59 (1995).
289 See Carroll Kilpatrick, Nixon Forces Firing of Cox; Richardson, Ruckelshaus Quit, WASH. POST (Oct. 21, 1973), at
A1.
290 TASSEL & FINKELMAN, supra note 139, at 258–59.
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unindicted coconspirator.291 On April 18, a subpoena was issued, upon the motion of the special
prosecutor, by the United States District Court for the District of Columbia requiring the
production of tapes and various items relating to meetings between the President and other
individuals. Following a challenge to the subpoena in district court, the Supreme Court reviewed
the case. On July 24, 1974, the Supreme Court affirmed the district court’s order.292
In late July, following its investigation and hearings, the House Judiciary Committee voted to
adopt three articles of impeachment against President Nixon.293 The first impeachment article
alleged that the President obstructed justice by attempting to impede the investigation into the
Watergate break-in.294 The second charged the President with abuse of power for using federal
agencies to harass his political enemies and authorizing burglaries of private citizens who
opposed the President.295 The third article accused the President of refusing to cooperate with the
Judiciary Committee’s investigation.296
The committee considered but rejected two proposed articles of impeachment. The first rejected
article accused the President of concealing from Congress the bombing operations in Cambodia
during the Vietnam conflict.297 This article was rejected for two primary reasons: some Members
thought (1) the President was performing his constitutional duty as Commander-in-Chief and (2)
Congress was given sufficient notice of these operations.298
The second rejected article concerned receiving compensation in the form of government
expenditures at President Nixon’s private properties in California and Florida—which allegedly
constituted an emolument from the United States in violation of Article II, Section 1, Clause 7 of
the Constitution—and tax evasion.299 Those Members opposed to the portion of the charge
alleging receipt of federal funds argued that most of the President’s expenditures were made
pursuant to a request from the Secret Service; that there was no direct evidence the President
knew at the time that the source of these funds was public, rather than private; and that this
conduct failed to rise to the level of an impeachable offense.300 Some Members opposed to the tax
evasion charge argued that the evidence was insufficient to impeach; others that tax fraud is not
the type of behavior “at which the remedy of impeachment is directed.”301
President Nixon resigned on August 9, 1974, before the full House voted on the articles.302 The
lessons and standards established by the Nixon impeachment investigation and resignation are
disputed. On the one hand, the behavior alleged in the approved articles against President Nixon
is arguably a “paradigmatic” case of impeachment, constituting actions that are almost certainly
impeachable conduct for the President.303
291 United States v. Nixon, 418 U.S. 683, 686–87 (1974).
292 Id. at 713–14.
293
NIXON IMPEACHMENT, supra note 116, at 6–11.
294 Id. at 1–2.
295 Id. at 3–4.
296 Id. at 4.
297 Id. at 217–19.
298 Id. at 219.
299 NIXON, supra note 116, at 220–23.
300 Id. at 221.
301 Id. at 223.
302 Kilpatrick, supra note 283.
303 Michael J. Gerhardt, The Lessons of Impeachment History, 67 GEO. WASH. L. REV. 603, 604 (1999).
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On the other hand, the significance of the House Judiciary Committee’s rejection of certain
impeachment articles is unclear. In particular, whether conduct considered unrelated to the
performance of official duties, such as the rejected article alleging tax evasion, can constitute an
impeachable offense for the President is disputed. During the later impeachment of President Bill
Clinton, for example, the majority and minority reports of the House Judiciary Committee on the
committee’s impeachment recommendation took different views on when conduct that might
traditionally be viewed as private or unrelated to the functions of the presidency constitutes an
impeachable offense.304 The House Judiciary Committee report that recommended articles of
impeachment argued that perjury by the President was an impeachable offense, even if committed
with regard to matters outside his official duties.305 In contrast, the minority views in the report
argued that impeachment was reserved for “conduct that constitutes an egregious abuse or
subversion of the powers of the executive office.”306 The minority noted that the Judiciary
Committee had rejected an article of impeachment against President Nixon alleging that he
committed tax fraud, mainly because that “related to the President’s private conduct, not to an
abuse of his authority as President.”307
Impeachment of President Bill Clinton
The impeachment of President Bill Clinton stemmed from an investigation that originally
centered on financial transactions occurring years before President Clinton took federal office.308
Attorney General Janet Reno appointed Robert Fiske Jr. as a special prosecutor in January 1994
to investigate the dealings of President Clinton and his wife with the “Whitewater” real estate
development during the President’s tenure as attorney general and then governor of Arkansas.309
Following the reauthorization of the Independent Counsel Act in June, the Special Division of the
United States Court of Appeals for the District of Columbia Circuit replaced Fiske in August with
Independent Counsel Kenneth W. Starr, a former Solicitor General in the George H.W. Bush
Administration and federal appellate judge.310
During the Whitewater investigation, Paula Jones, an Arkansas state employee, filed a civil suit
against President Clinton in May 1994 alleging that he sexually harassed her in 1991 while
governor of Arkansas.311 Lawyers for Jones deposed President Clinton at the White House and
asked questions about the President’s relationship with staffers, including an intern named
Monica Lewinsky.312 Independent Counsel Starr received information alleging that Lewinsky had
tried to influence the testimony of a witness in the Jones litigation,313 along with tapes of
304 Compare CLINTON IMPEACHMENT, supra note 92, at 110–18 (majority views), with id. at 204–07 (minority views).
305 See id. at 108.
306 Id. at 205.
307
Id. at 207.
308 See generally KEN GORMLEY, THE DEATH OF AMERICAN VIRTUE: CLINTON VS. STARR 33–114 (2010).
309 TASSEL & FINKELMAN, supra note 139, at 267; see generally Whitewater: Timeline, WASH. POST (1998).
310 See generally GORMLEY, supra note 308, at 143–69. A previous version of the statute under which the independent
counsel was appointed was challenged as unconstitutional in Morrison v. Olson, 487 U.S. 654 (1998). The Supreme
Court upheld the statute. Id. at 685–96.
311 In Clinton v. Jones, the Supreme Court held that the President was not immune from suit for unofficial acts. 520
U.S. 681, 684–85 (1997).
312 TASSEL & FINKELMAN, supra note 139, at 268.
313 Kenneth W. Starr, Communication from Kenneth W. Starr, Independent Counsel, Transmitting a Referral to the
United States House of Representatives Filed in Conformity with the Requirements of Title 28, United States Code,
Section 595(C) (“Starr Report”), H.R. Doc. No. 105–310, Vol. I at 3 (1998).
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recordings between Monica Lewinsky and former White House employee Linda Tripp.314 Tripp
had recorded conversations between herself and Lewinsky about Lewinsky’s relationship with the
President and hope of obtaining a job outside the White House. Starr presented this information to
Attorney General Reno. Reno petitioned the Special Division of the United States Court of
Appeals for the District of Columbia Circuit to expand the independent counsel’s jurisdiction, and
the Special Division issued an order on January 16, 1998, permitting the expansion of Starr’s
investigation into President Clinton’s response to the Paula Jones case.315 Over the course of the
spring and summer a grand jury investigated whether President Clinton committed perjury in his
response to the Jones suit and whether he obstructed justice by encouraging others to lie about his
relationship with Lewinsky.316 President Clinton appeared by video before the grand jury and
testified about the Lewinsky relationship.317
Independent Counsel Starr referred his report to the House of Representatives on September 9,
1998, noting that under the independent counsel statute, his office was required to do so because
President Clinton engaged in behavior that might constitute grounds for impeachment.318 The
House then voted to open an impeachment investigation into President Clinton’s behavior,
released the Starr Report publicly, and the House Judiciary Committee voted to release the tape of
the President’s grand jury testimony.319
Although the House Judiciary Committee had already conducted several hearings on the
possibility of impeachment,320 the committee did not engage in an independent fact-finding
investigation or call any live witnesses to testify about the President’s conduct.321 Instead, the
Judiciary Committee largely relied on the Starr Report to inform the committee’s own report
recommending impeachment, released December 16, 1998.322 The committee report
recommended impeachment of President Clinton on four counts.323 The first article alleged that
President Clinton perjured himself when testifying to a criminal grand jury about his response to
the Jones lawsuit and his relationship with Lewinsky.324 The second alleged that the President
committed perjury during a deposition in the civil suit brought against him by Paula Jones.325 The
third alleged that President Clinton obstructed justice in the suit brought against him by Jones and
in the investigation by Independent Counsel Starr.326 The fourth alleged that the President abused
314 See GORMLEY, supra note 308, at 304–06.
315 Id.
316 TASSEL & FINKELMAN, supra note 139, at 269.
317 CLINTON IMPEACHMENT, supra note 92, at 28; The Starr Report: Grounds for Impeachment, No. II, WASH. POST
(1998), http://www.washingtonpost.com/wp-srv/politics/special/clinton/icreport/7groundsii.htm (last visited Oct. 25,
2019).
318 The Starr Report: Introduction, WASH. POST (1998), http://www.washingtonpost.com/wpsrv/politics/special/clinton/icreport/5intro.htm (last visited Oct. 25, 2019); see 28 U.S.C. § 595(c).
319 TASSEL & FINKELMAN, supra note 139, at 271.
320 See Background and History of Impeachment, Hearing Before the Subcomm. on the Constitution of the H. Comm.
on the Judiciary, 105th Cong. (1998); Impeachment Inquiry: William Jefferson Clinton, President of the United States,
Hearing Before the H. Comm. on the Judiciary, 105th Cong. (1998).
321 GERHARDT, supra note 15, at 176–77.
322 See CLINTON IMPEACHMENT, supra note 92, at 200–02 (minority views).
323 Id. at 128.
324 Id. at 2.
325 Id. at 2–3.
326 Id. at 3–4.
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his office by refusing to respond to certain requests for admission from Congress and making
untruthful responses to Congress during the investigation into his behavior.327
On December 19, 1998, in a lame-duck session, the House voted to approve the first and third
articles.328 After trial in the Senate, the President was acquitted on February 12, 1999.329
Statements of the Senators entered into the record on the impeachment reflect disagreement about
what constitutes an impeachable offense for the President and whether Clinton’s behavior rose to
this level.330 For instance, Republican Senator Richard G. Lugar voted to convict on both articles,
noting in his statement the gravity of the “presidential misconduct at issue” and arguing that the
case was “not about adultery.”331 Instead, it centered on the obstruction of justice that occurred
when the President “lied to a federal grand jury and worked to induce others to give false
testimony.”332 For Senator Lugar, the President ultimately “betrayed [the] trust” of the nation
through his actions and should be removed from office.333 In contrast, Republican Senator
Olympia Snowe voted to acquit on both articles. In her statement, she admonished the President’s
“lowly conduct,” but concluded there was “insufficient evidence of the requisite untruth and the
requisite intent” to establish perjury with regard to the concealment of his relationship with a
subordinate; and the perjury charges regarding his relationship with a subordinate concerned
statements that were largely “ruled irrelevant and inadmissible in the underlying civil case” which
“undermine[d] [their] materiality.”334 She also stated that she thought one of the allegations in the
second impeachment article had been proven—the President’s attempt to influence the testimony
of his personal assistant—but that the proper remedy for this was a criminal prosecution.335 A
number of Senators indicated that they did not consider the President’s behavior to constitute an
impeachable offense because the President’s conduct was not of a distinctly public nature.336 For
instance, Democratic Senator Byron L. Dorgan voted to acquit on both articles.337 He described
Clinton’s behavior as “reprehensible,” but concluded that it did not constitute “a grave danger to
the nation.”338
The significance of the Clinton impeachment experience to informing the understanding of what
constitutes an impeachable offense is thus open to debate. One might point to the impeachment
articles recommended by the House Judiciary Committee, but not adopted by the full House, as
concerning conduct insufficient to establish an impeachable offense. Specifically, the House
declined to impeach President Clinton for his alleged perjury in a civil suit against him as well as
for alleged untruthful statements made in response to congressional requests.339 Likewise, some
scholars have pointed to the acquittal in the Senate of both impeachment articles brought by the
327 Id. at 4–5.
328 144 CONG. REC. 28,035–113 (1998).
329 145 CONG. REC. 2375–78 (1999); Alison Mitchell, Clinton is Acquitted Decisively by Senate on Both Charges, N.Y.
TIMES (Feb. 13, 1999) at A1.
330 See 145 CONG. REC. S1471–1637 (daily ed. Feb. 12, 1999); GERHARDT, supra note 15, at 175.
331 PROCEEDINGS OF THE UNITED STATES SENATE IN THE IMPEACHMENT TRIAL OF PRESIDENT WILLIAM JEFFERSON
CLINTON, VOLUME IV: STATEMENTS OF SENATORS REGARDING THE IMPEACHMENT TRIAL, 106TH CONG., 1ST SESS., S.
DOC. NO. 106-4, at 2571–72 (1999) [hereinafter CLINTON PROCEEDINGS].
332 Id.
333 Id. at 2573.
334 Id. at 3001–02.
335 Id. at 3004.
336 See 145 CONG. REC. S1471–1637 (daily ed. Feb. 12, 1999); GERHARDT, supra note 15, at 175.
337 CLINTON PROCEEDINGS, supra note 331, at 2942.
338 Id.
339 144 CONG. REC. 28, 110–12 (1998).
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House as evidence that the Clinton impeachment articles lacked merit or were adopted on purely
partisan grounds.340 The statements of some Senators mentioned above, reasoning that Clinton’s
conduct did not qualify as an impeachable offense, may support arguments that impeachment is
not an appropriate tool to address at least some sphere of conduct by a President not directly tied
to his official duties.341 Even so, the failure to convict President Clinton might instead simply
reflect the failure of the House Managers to prove their case,342 or simply bare political
calculation by some Senators.343 Ultimately, the lessons of the Clinton impeachment experience
will be revealed in the future practice of Congress when assessing whether similar conduct is
impeachable if committed by future Presidents.
Contemporary Judicial Impeachments
Congress has impeached federal judges with comparatively greater frequency in recent decades,
and some of these impeachments appear to augur important consequences for the practice in the
future. In particular, within three years in the 1980s the House voted to impeach three federal
judges, each occurring after a criminal prosecution of the judge. One impeached federal judge
was not barred from future office and later was elected to serve in the House of Representatives,
the body that had earlier impeached him.344 Another judge challenged the adequacy of his
impeachment trial in a case that ultimately reached the Supreme Court, which ruled that the case
was nonjusticiable.345
The House of Representatives impeached federal district judge Harry E. Claiborne in 1986,
following his criminal conviction and imprisonment for providing false statements on his tax
returns.346 Despite his incarceration, Judge Claiborne did not resign his seat and continued to
collect his judicial salary.347 The House unanimously voted in favor of four articles of
impeachment against him.348 The first two articles against Judge Claiborne simply laid out the
underlying behavior that had led to his criminal prosecution.349 The third article “rest[ed] entirely
on the conviction itself” and stood for the principle that “by conviction alone he is guilty of . . .
‘high crimes’ in office.”350 The fourth alleged that Judge Claiborne’s actions brought the
340 Miller, supra note 115 at 728 (“President Clinton's acquittal, a constitutional law decision by the Senate—the final
arbiter of the impeachment law—will reaffirm Congress’s prior “holdings” that impeachment carries a “substantiality”
requirement. Impeachable offenses are offenses seriously incompatible with the institutions of government or those that
substantially impair a president’s ability to perform his constitutional duties. President Clinton’s conduct falls short of
this extraordinarily high threshold.”). But see Charles J. Cooper, A Perjurer in the White House?: The Constitutional
Case for Perjury and Obstruction of Justice As High Crimes and Misdemeanors, 22 HARV. J.L. & PUB. POL'Y 619, 621
(1999) (“[T]he crimes alleged against the President . . . plainly do involve the derelict violation of executive duties.
Those crimes are plainly impeachable offenses.”).
341
Michael J. Gerhardt, The Perils of Presidential Impeachment, 67 U. CHI. L. REV. 293, 299–301 (2000).
342 See 145 CONG. REC. S1577 (daily ed. Feb. 12, 1999).
343 GERHARDT, supra note 15, at 175–76.
344 See H.R. Res. 499, 100th Cong., 2d Sess. (1988); HASTINGS IMPEACHMENT, supra note 147, at 8, 66; see also The
Impeachment Trial of Alcee L. Hastings (1989) U.S. District Judge, Florida, U.S. SENATE,
https://www.senate.gov/artandhistory/history/common/briefing/Impeachment_Hastings.htm (last visited Oct. 25, 2019).
345 Nixon v. United States, 506 U.S. 224, 237–38 (1993).
346 United States v. Claiborne, 727 F.2d 842 (9th Cir. 1984) (per curiam).
347 TASSEL & FINKELMAN, supra note 139, at 168.
348 132 CONG. REC. H4710–22 (daily ed. July 22, 1986).
349 H. COMM. ON THE JUDICIARY, IMPEACHMENT OF JUDGE HARRY E. CLAIBORNE, REPORT TO ACCOMPANY H. RES. 461,
99TH CONG., 2D SESS., H.R. REP. NO. 99-688, at 1–2 (1986) [hereinafter CLAIBORNE IMPEACHMENT].
350 Id. at 22.
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“judiciary into disrepute, thereby undermining public confidence in the integrity and impartiality
of the administration of justice” which amounted to a “misdemeanor.”351
The Senate impeachment trial of Judge Claiborne was the first in which that body used a
committee to take evidence. Rather than conducting a full trial with the entire Senate, the
committee took testimony, received evidence, and voted on pretrial motions regarding evidence
and discovery.352 The committee then reported a transcript of the proceedings to the full Senate,
without recommending whether impeachment was warranted.353 The Senate voted to convict
Judge Claiborne on the first, second, and fourth articles.354
In 1988, the House impeached a federal district judge who had been indicted for a criminal
offense but was acquitted. Judge Alcee L. Hastings was acquitted in a criminal trial where he was
accused of conspiracy and obstruction of justice for soliciting a bribe in return for reducing the
sentences of two felons.355 After his acquittal, a judicial committee investigated the case and
concluded that Judge Hastings’s behavior might merit impeachment. The Judicial Conference (a
national entity composed of federal judges that reviews investigations of judges and may refer
recommendations to Congress) eventually referred the matter to the House of Representatives,
noting that impeachment might be warranted.356 The House of Representatives approved
seventeen impeachment articles against Judge Hastings, including for perjury, bribery, and
conspiracy.357
Judge Hastings objected to the impeachment proceedings as “double jeopardy” because he had
already been acquitted in a previous criminal proceeding.358 The Senate, however, rejected his
motion to dismiss the articles against him.359 The Senate again used a trial committee to receive
evidence. That body voted to convict and remove Judge Hastings on eight articles, but did not
vote to disqualify him from holding future office.360 Judge Hastings was later elected to the House
of Representatives.361
Before the trial of Judge Hastings even began in the Senate, the House impeached Judge Walter
L. Nixon. Judge Nixon was convicted in a criminal trial of perjury to a grand jury and
imprisoned.362 Following an investigation by the House Judiciary Committee’s Subcommittee on
Civil and Constitutional Rights, the Judiciary Committee reported a resolution to the full House
recommending impeachment on three articles.363 The full House approved three articles of
351 Id. at 23.
352 STAFF FROM THE S. IMPEACHMENT TRIAL COMM., ON THE IMPEACHMENT OF HARRY E. CLAIBORNE, 99TH CONG., 2D
SESS., S. REP. NO. 99-511, at 1–4 (1986).
353 Id. at 1.
354 132 CONG. REC. 29, 870–72 (1986).
355 HASTINGS IMPEACHMENT, supra note 147, at 8.
356 Id. at 8. The Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 authorizes the Judicial
Conference to forward a certification to the House that impeachment of a federal judge may be warranted. 28 U.S.C. §
355.
357 H.R. Res. 499, 100th Cong., 2d Sess. (1988); HASTINGS IMPEACHMENT, supra note 147, at 1–5, 8.
358 IMPEACHMENT OF JUDGE ALCEE L. HASTINGS, MOTIONS TO DISMISS, supra note 148, at 48–65.
359 The Impeachment Trial of Alcee L. Hastings (1989) U.S. District Judge, Florida, U.S. SENATE,
https://www.senate.gov/artandhistory/history/common/briefing/Impeachment_Hastings.htm (last visited Oct. 25, 2019).
360 135 CONG. REC. S13,783–87 (daily ed. Oct. 20, 1989).
361 TASSEL & FINKELMAN, supra note 139, at 173.
362 H. COMM. ON THE JUDICIARY, IMPEACHMENT OF WALTER L. NIXON, JR., REPORT TO ACCOMPANY H. RES. 87, 101ST
CONG. 1ST SESS., H.R. REP. NO. 101-36, at 12–13 (1989) [hereinafter NIXON JR. IMPEACHMENT].
363 Id. at 14–16.
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impeachment, the first two involving lying to a grand jury and the last for undermining the
integrity of and bringing disrepute on the federal judicial system.364 The Senate convicted Judge
Nixon on the first two articles but acquitted him on the third.365
Judge Nixon challenged the Senate’s use of a committee to receive evidence and conduct
hearings. He sued in federal court arguing that the use of a committee, rather than the full Senate,
to take evidence violated the Constitution's provision that the Senate “try” all impeachments.366
The Supreme Court ultimately rejected his challenge in Nixon v. United States, ruling that the
issue was a nonjusticiable political question because the Constitution grants the power to try
impeachments “in the Senate and nowhere else”; and the word “try” “lacks sufficient precision to
afford any judicially manageable standard of review of the Senate’s actions.”367 As a result of this
decision, impeachment proceedings appear largely immune from judicial review.368
Two judges have been impeached in the twenty-first century. As with the three impeachments of
judges in the 1980s, the first followed a criminal indictment. District Judge Samuel B. Kent
pleaded guilty to obstruction of justice for lying to a judicial investigation into alleged sexual
misconduct and was sentenced to thirty-three months in prison.369 The House impeached Judge
Kent for sexually assaulting two court employees, obstructing the judicial investigation of his
behavior, and making false and misleading statements to agents of the Federal Bureau of
Investigation about the activity.370 Judge Kent resigned his office before a Senate trial.371 The
Senate declined to conduct a trial following his resignation.
Although the four previous impeachments of federal judges followed criminal proceedings, the
most recent impeachment did not.372 In 2010, Judge G. Thomas Porteous Jr. was impeached for
participating in a corrupt financial relationship with attorneys in a case before him, and engaging
in a corrupt relationship with bail bondsmen whereby he received things of value in return for
helping the bondsman develop corrupt relationships with state court judges.373 Judge Porteous
was the first individual impeached by the House374 and convicted by the Senate based in part on
conduct occurring before he began his tenure in federal office. The first and second articles of
impeachment each alleged misconduct by Judge Porteous during both his state and federal
364 See 135 CONG. REC. H1802–11 (daily ed. May 10, 1989).
365 135 CONG. REC. S14,633–39 (daily ed. Nov. 3, 1989).
366 Nixon v. United States, 506 U.S. 224, 226 (1993).
367 Id. at 229–30.
368 The U.S. District Court for the District of Columbia initially threw out Judge Hastings’ Senate impeachment
conviction, because the Senate had tried his impeachment before a committee rather than the full Senate. Hastings v.
United States, 802 F. Supp. 490, 505 (D.D.C. 1992), vacated, 988 F.2d 1280 (D.C. Cir. 1993). The decision was
vacated on appeal and remanded for reconsideration in light of Nixon v. United States. Hastings v. United States, 988
F.2d 1280 (D.C. Cir. 1993). The district court then dismissed the suit because it presented a nonjusticiable political
question. Hastings v. United States, 837 F. Supp. 3, 5–6 (D.D.C. 1993).
369 H. COMM. ON THE JUDICIARY, IMPEACHMENT OF JUDGE SAMUEL B. KENT, REPORT TO ACCOMPANY H. RES. 520, 11TH
CONG., 1ST SESS., H.R. REP. No. 111-159, at 6–13 (2009) [hereinafter KENT IMPEACHMENT].
370 155 CONG. REC. H7053–67 (daily ed. June 19, 2009); KENT IMPEACHMENT, supra note 369, at 2–3.
371 HOUSE PRACTICE, supra note 6, at ch. 27 §§ 3–4.
372 The FBI investigated judicial corruption in Louisiana’s 24th Judicial District, the court on which Judge Porteous
served before appointed to the District Court for the Eastern District of Louisiana. The Department of Justice declined
to seek criminal charges but did submit a complaint of judicial misconduct to the Fifth Circuit Court of Appeals.
PORTEOUS IMPEACHMENT, supra note 7, at 5.
373 Id. at 1–2.
374 See 156 CONG. REC. 3155–57 (2010).
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judgeships.375 The fourth alleged that Judge Porteous made false statements to the Senate and FBI
in connection with his nomination and confirmation to the U.S. District Court for the Eastern
District of Louisiana.376
Judge Porteous’s filings in answer to the articles of impeachment argued that conduct occurring
before he was appointed to the federal bench cannot constitute impeachable behavior.377 The
House Managers’ replication, or reply to this argument, argued that Porteous’s contention had no
basis in the Constitution.378 On December 8, 2010, he was convicted on all four articles, removed
from office, and disqualified from holding future federal offices.379 The first article, which
included conduct occurring before he was a federal judge, was affirmed 96–0.380 The second
article, approved 90–6, alleged that he lied to the Senate in his confirmation hearing to be a
federal judge.381 A number of Senators explicitly adopted the reasoning supplied by expert
witness testimony before the House that the crucial issue over the appropriateness of
impeachment was not the timing of the misconduct, but “whether Judge Porteous committed such
misconduct and whether such misconduct demonstrates the lack of integrity and judgment that
are required in order for him to continue to function” in office.382
Senator Claire McCaskill explained in her statement entered in the Congressional Record that
Judge Porteous’s argument for an “absolute, categorical rule that would preclude impeachment
and removal for any pre-federal conduct” should be rejected.383 “That should not be the rule,” she
noted, “any more than allowing impeachment for any pre-federal conduct that is entirely
unrelated to the federal office.”384 Senator Patrick Leahy agreed, noting that he “reject[ed] any
notion of impeachment immunity [for pre-federal behavior] if misconduct was hidden, or
otherwise went undiscovered during the confirmation process, and it is relevant to a judge’s
ability to serve as an impartial arbiter.”385
375 PORTEOUS IMPEACHMENT, supra note 7, at 1–2.
376 Id. at 2.
377 156 CONG. REC. S2183–84 (daily ed. Apr. 12, 2010). See also Judge G. Thomas Porteous Jr.’s Post-Trial Brief (Oct.
29, 2010), in PROCEEDINGS OF THE UNITED STATES SENATE IN THE IMPEACHMENT TRIAL OF G. THOMAS PORTEOUS, JR., A
JUDGE OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA, 111TH CONG., 2D SESS., S.
DOC. NO. 111-20, at 61–76 (2010) [hereinafter PORTEOUS PROCEEDINGS].
378 156 CONG. REC. S2358 (daily ed. Apr. 15, 2010). See also Post-Trial Memorandum of the House of Representatives
(Oct. 29, 2010), in PORTEOUS PROCEEDINGS, supra note 377, at 304–15.
379 156 CONG. REC. 19, 134–36 (2010).
380 Id. at 8609.
381 Id. at 8610.
382 To Consider Possible Impeachment of United States District Judge G. Thomas Porteous, Jr. (Part IV), Hearing
Before the Task Force on Judicial Impeachment of the H. Comm. on the Judiciary, 111th Cong. 1st Sess., H. Hrg. 11146, at 30 (Dec. 15, 2009) (statement of Michael J. Gerhardt, Professor of Law, University of North Carolina, Chapel
Hill School of Law); see, e.g., 156 CONG. REC. S10,285 (daily ed. Dec. 15, 2010) (statement of Senator Tom Udall); id.
S10,284 (statement of Senator Patrick Leahy).
383 156 CONG. REC. S10,282 (daily ed. Dec. 15, 2010).
384 Id.
385 Id. S10,284; see also id. S10,286 (statement of Senator Jeanne Shaheen) (“I was totally unpersuaded by the defense
team's argument that Judge Porteous’s ‘pre-Federal’ conduct should be outside the scope of our deliberation—I do not
believe the act of being confirmed to a Federal judgeship by the Senate erases or excuses an individual’s conduct up to
the point of confirmation.”); id. S10,405 (statement of Senator Jeff Sessions) (“The Constitution does not require that
all conduct be committed post Federal appointment nor does it stipulate at all when the conduct must occur.”).
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Impeachments of President Donald Trump
The House of Representatives impeached President Donald Trump twice during his term in
office. In both cases, the Senate acquitted him on all counts.
The first impeachment stemmed from a call President Trump had with President Volodymyr
Zelenskyy of Ukraine in which President Trump asked the Ukrainian president to announce two
investigations: one involving his potential opponent in the upcoming 2020 presidential election
and a second into unsubstantiated allegations that entities within Ukraine had interfered in the
2016 presidential election.386 At the time of the call, the Office of Management and Budget had
frozen $400 million in military aid to Ukraine at the direction of the President.387 The contents of
the call initially came to light through an intelligence community whistleblower report, but a
summary of the call was later made public by President Trump.388
The initial fact-finding portion of the investigation was primarily handled by the House
Intelligence Committee, in cooperation with the Committee on Oversight and Reform and the
Committee on Foreign Affairs.389 The early stages of this phase of the investigation saw some
controversy over whether the House must explicitly authorize the initiation of an impeachment
investigation. Although the Speaker of the House had announced that the committee
investigations constituted an official impeachment inquiry, the White House counsel objected to
the investigations on the ground that they lacked the necessary authorization for a valid
impeachment proceeding and violated the Due Process Clause.390 As a result, the President
instructed members of his Administration not to cooperate with the House’s inquiry.391
The House subsequently adopted a resolution authorizing the House committees to “continue
their ongoing investigations as part of the existing House of Representatives inquiry into whether
sufficient grounds exist . . . to impeach Donald John Trump.”392 The White House and other
executive branch offices generally refused to comply with the House investigators’ requests for
information, including subpoenas. Some executive branch officials, however, made the individual
determination to cooperate with the impeachment inquiry and, as a result, the Intelligence
Committee was able to hold a number of investigative hearings and issue a report outlining their
findings. The record established in the fact-finding phase was then provided to the Judiciary
Committee.
The next phase of the impeachment investigation was conducted by the Judiciary Committee.
This Committee focused on whether the President’s conduct, as uncovered in the fact-finding
phase of the inquiry, constituted an impeachable offense.393 Following a series of hearings, the
Committee recommended two articles of impeachment against the President, both of which were
386 H.R. Rep. No. 116-346, at 81-83 (2019).
387 Id. at 82.
388 Id. at 126.
389 Staff of H. Perm. Select Comm. on Intelligence, H. Comm. on Oversight and Reform, & H. Comm. on Foreign
Affairs, The Trump-Ukraine Impeachment Inquiry Report: Report for the H. Perm. Select Comm. on Intelligence
Pursuant to H. Res. 660 in Consultation with the H. Comm. on Oversight and Reform and the H. Comm. on Foreign
Affairs, 116th Cong. (Comm. Print 2019).
390 Press Release, Nancy Pelosi, Speaker of the House, Pelosi Remarks Announcing Impeachment Inquiry (Sept. 24,
2019), https://www.speaker.gov/newsroom/92419-0.
391 See Letter from Pat Cipollone, White House Counsel, to Nancy Pelosi, Speaker of the House of Representatives, et
al. (Oct. 8, 2019), https://s3.documentcloud.org/documents/6459967/PAC-Letter-10-08-2019.pdf.
392 H.R. Res. 660, 116th Cong. (2019).
393 H.R. Rep. No. 116-346; Report by the Majority Staff of the H. Comm. on the Judiciary, Constitutional Grounds for
Presidential Impeachment, 116th Cong. (Comm. Print 2019).
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ultimately approved by the House. The first charged the President with abuse of power, alleging
that he had used the powers of his office to solicit Ukraine’s interference in the 2020 election and
had conditioned official acts, such as the release of military aid to Ukraine and a White House
visit, on President Zelenskyy agreeing to announce the previously referenced
investigations.394 President Trump, the article alleged, engaged in this scheme or course of
conduct for corrupt purposes in pursuit of personal political benefit.395 The second article charged
the President with obstruction of the House impeachment investigation by “direct[ing]
the unprecedented, categorical” defiance of subpoenas issued by the House of
Representatives.396 This abuse of office, according to the article, was “subversive of constitutional
government” and “nullif[ied] a vital constitutional safeguard vested solely in the House of
Representatives.”397
The impeachment articles were adopted by the House on December 18, 2019, although managers
were not appointed and the articles not delivered to the Senate until January 15, 2020.398
One conflict that arose during the trial involved the proper relationship between impeachment and
criminal law. Trial briefs and debate made clear that the House managers and President Trump’s
attorneys reached very different conclusions on the question of whether high crimes and
misdemeanors require evidence of a criminal act or other legal violation.399 The House, consistent
with past impeachment practice, asserted that for purposes of Article II, high Crimes and
Misdemeanors need not be indictable criminal offenses.400 In response, however, the President’s
attorneys asserted that an impeachable offense must be a violation of established law, and that the
articles “fail[ed] to allege any crime or violation of law whatsoever, let alone ‘high Crimes and
Misdemeanors,’ as required by the Constitution.”401 The acquittal provided no clear resolution to
these conflicting positions, but the debate over a link between illegal acts and impeachable acts
appears to have had some impact on individual Senators. A number of Senators pointed to the
failure to allege an explicit criminal act as a primary reason for acquittal.402
394 H.R. Res. 755, 116th Cong. (2019).
395 Id.
396 Id.
397 Id.
398 H.R. Res. 798, 116th Cong. (2020).
399 U.S. CONST. art. II, § 4.
400 PROCEEDINGS OF THE UNITED STATES SENATE IN THE IMPEACHMENT TRIAL OF PRESIDENT DONALD JOHN TRUMP, VOL.
I: PRELIMINARY PROCEEDINGS, S. Doc. No. 116-18, 116th Cong. 416 (2020).
401 Id. at 471.
402 See, e.g., PROCEEDINGS OF THE UNITED STATES SENATE IN THE IMPEACHMENT TRIAL OF PRESIDENT DONALD JOHN
TRUMP, VOL. IV: STATEMENTS OF SENATORS, S. Doc. No. 116-18, 116th Cong. 1914 (2020) (statement of Senator
James M. Inhofe) (“Each of the past impeachment cases in the House of Representatives accused Presidents Johnson,
Nixon, and Clinton of committing a crime. This President didn’t commit a crime.”); id. at 1984 (statement of Senator
Ted Cruz) (“Indeed, in the Articles of Impeachment they sent over here, they don’t allege any crime whatsoever. They
don’t even allege a single Federal law that the President violated.”); id. at 1990 (statement of Senator David Perdue)
(“President Trump is the first President ever to face impeachment who was never accused of any crime in these
proceedings, whatsoever. These two Articles of Impeachment simply do not qualify as reasons to impeach any
President.”); id. at 2034 (statement of Senator John Cornyn) (“But they failed to bring forward compelling and
unassailable evidence of any crime—again, the Constitution talks about treason, bribery, or other high crimes and
misdemeanors; clearly, a criminal standard . . . .”). Other Senators identified the non-existence of a crime as an
important factor in their vote but made clear their belief that a crime is not constitutionally required. See, e.g., id. at
1937 (statement of Senator Mitch McConnell) (“Now, I do not subscribe to the legal theory that impeachment requires
a violation of a criminal statute, but there are powerful reasons why, for 230 years, every Presidential impeachment did
in fact allege a criminal violation.”); id. at 2016 (statement of Senator Rob Portman) (“In this case, no crime is alleged.
(continued...)
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During the trial, the House managers asked that the Senate authorize subpoenas for relevant
executive branch documents and for testimony from various White House officials, including
former National Security Advisor John Bolton.403 With only forty-nine Senators voting in favor,
the Senate chose not to approve the request, and the record was limited to the evidence provided
by the House.404 Ultimately, the Senate acquitted President Trump on both counts. Article I failed
by a vote of 48–52, while Article II failed by a vote of 47–53.405
The second impeachment of President Trump occurred a year later, in the waning days of his
presidency and following the events of January 6, 2021, at the U.S. Capitol. On that day,
supporters of President Trump attempted to disrupt the congressional certification of Joe Biden as
the winner of the 2020 presidential election. The House moved quickly following those events.
Foregoing an investigation, the House Judiciary Committee staff compiled publicly available
evidence relating to the President’s actions on January 6 and within one week, the House had
approved a single article of impeachment charging the President with incitement to
insurrection.406 The article alleged that in the months running up to January 6, the President had
consistently “issued false statements asserting that the presidential election results were the
product of widespread fraud and should not be accepted by the American people.”407 He then
repeated those claims when addressing a crowd on January 6 and “willfully made statements that,
in context, encouraged—and foreseeably resulted in—lawless action at the Capitol . . . .”408
Although the House ultimately impeached President Trump prior to the expiration of his term, the
Senate did not commence a trial until after President Trump had left office.409 The Senate trial
saw the chamber make two threshold determinations regarding trials of former Presidents. First,
although the Constitution clearly requires the Chief Justice to preside over presidential
impeachment trials, the Senate implicitly determined that that requirement does not extend to the
trial of a former President. At the opening of the trial, Senator Patrick Leahy, President pro
tempore of the U.S. Senate, was sworn in as presiding officer without objection.410
The Senate also made the threshold determination of whether it had the constitutional authority to
try a former President. After briefing and debate on the question of whether the Senate had
jurisdiction over a former President for acts that occurred during his tenure in office, the Senate
explicitly determined by a vote of 56–44 that it did.411 Thus a majority of Senators, as they have
Let me repeat. In the two Articles of Impeachment that came over to us from the House, there is no criminal law
violation alleged. Although I don’t think that that is always necessary—there could be circumstances where a crime
isn’t necessary in an impeachment . . . .”).
403 PROCEEDINGS OF THE UNITED STATES SENATE IN THE IMPEACHMENT TRIAL OF PRESIDENT DONALD JOHN TRUMP, VOL.
II: FLOOR AND TRIAL PROCEEDINGS, S. Doc. No. 116-18, 116th Cong. 1498–99 (2020).
404 Id. at 1499.
405 166 Cong. Rec. S937–38 (daily ed. Feb. 5, 2020).
406 Staff of H. Comm. on the Judiciary, Materials in Support of H. Res. 24 Impeaching Donald John Trump, President
of the United States, for High Crimes and Misdemeanors, 116th Cong. (Comm. Print 2021); H.R. Res. 24, 117th Cong.
(2021).
407 H.R. Res. 24, 117th Cong. (2021).
408 H.R. Res. 24, 117th Cong. (2021).
409 See PROCEEDINGS OF THE UNITED STATES SENATE IN THE IMPEACHMENT TRIAL OF DONALD JOHN TRUMP, VOL. I:
PRELIMINARY AND FLOOR TRIAL PROCEEDINGS, S. Doc. No. 117-3, 117th Cong. 23 (2021).
410 167 Cong. Rec. S142 (daily ed. Jan. 26, 2021) (swearing in Patrick Leahy (D-VT), President pro tempore of the
United States Senate, as presiding officer).
411 167 Cong. Rec. S609 (daily ed. Feb. 9, 2021) (determining that “Donald John Trump is subject to the jurisdiction of
a Court of Impeachment for acts committed while President of the United States, notwithstanding the expiration of his
term in that office”).
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on previous occasions, determined that former officials may be tried by the Senate and, though
not removable, remain subject to disqualification from holding future office if convicted.412
Regarding whether the President committed an impeachable offense, much of the debate during
the trial centered on the applicability of the First Amendment to President Trump’s statements and
actions.413 Although a majority of Senators voted to convict, former President Trump was
ultimately acquitted by a vote of 57–43.414
Recurring Questions About Impeachment
Who Counts as an Impeachable Officer?
The Constitution explicitly makes “[t]he President, Vice President and all civil Officers of the
United States” subject to impeachment and removal.415 Which officials are considered “civil
Officers of the United States” for purposes of impeachment is a significant constitutional question
that remains partly unresolved. Based on both the constitutional text and historical precedent,
federal judges416 and Cabinet-level officials417 are “civil Officers” subject to impeachment, while
military officers,418 state and local officials,419 purely private individuals,420 and Members of
Congress421 likely are not.
A question that neither the Constitution nor historical practice has answered is whether Congress
may impeach and remove lower-level, non-Cabinet executive branch officials. The Constitution
does not define “civil Officers of the United States.” Nor do the debates at the Constitutional
412 See infra “Impeachment After an Individual Leaves Office.”
413 PROCEEDINGS OF THE UNITED STATES SENATE IN THE IMPEACHMENT TRIAL OF DONALD JOHN TRUMP, Part II, S. Doc.
No. 117-2, 117th Cong. 146–75 (2021); PROCEEDINGS OF THE UNITED STATES SENATE IN THE IMPEACHMENT TRIAL OF
DONALD JOHN TRUMP, Part III, S. Doc. No. 117-2, 117th Cong. 208 (2021).
414 167 Cong. Rec. S733 (daily ed. Feb. 13, 2021).
415 U.S. CONST. art. II, § 4.
416 Federal judges—appointed by the President, confirmed by the Senate, and enjoying tenure and salary protection—
have consistently been considered civil officers; in fact, the vast majority of impeached individuals have been federal
judges. See generally PORTEOUS IMPEACHMENT, supra note 7; United States v. Claiborne, 727 F.2d 842, 845 n.3 (9th
Cir. 1984) (observing that “[f]ederal judges are ‘civil officers’ within the meaning of Art. II sec 4”).
417 3 HINDS, supra note 5, §§ 2444–68, pp. 902, 946–47.
418 Joseph Story has also suggested that “civil officers” was not intended to cover military officers. See III STORY,
supra note 13, § 791 (concluding that “[t]he sense, in which [civil] is used in the Constitution, seems to be in
contradistinction to military, to indicate the rights and duties relating to citizens generally, in contradistinction to those
of persons engaged in the land or naval service of the government.”).
419 See discussion supra “Postbellum Practices (1865–1900)”; CONSTITUTIONAL GROUNDS, supra note 18, at 20; 3
HINDS, supra note 5, §§ 2444–68, pp. 902, 946–47. A House committee concluded that a Commissioner of the District
of Columbia was not a civil officer for impeachment purposes because he was not a federal official, but a municipal
officer. See 6 CANNON, supra note 5, § 548.
420 3 HINDS, supra note 5, §§ 2007, 2315. For a discussion of impeachment proceedings following an official’s
resignation, see “Impeachment After an Individual Leaves Office.”
421 As previously discussed, the House impeached Senator William Blount in 1797. The Senate, however, voted to
defeat a resolution that declared Blount a “civil officer” and ultimately voted to dismiss the impeachment articles
brought against Blount because it lacked jurisdiction over the matter. Although the record does not indicate precisely
the basis for the Senate dismissal, it has generally been viewed as establishing that Members of Congress are not
subject to impeachment. See, e.g., Motions Sys. Corp. v. Bush, 437 F.3d 1356, 1373 (Fed. Cir. 2006) (“This principle
has been accepted since 1799, when the Senate, presented with articles of impeachment against Senator William
Blount, concluded after four days of debate that a Senator was not a civil officer . . . for purposes of the Impeachment
Clause.”).
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Convention provide significant evidence of which individuals (beyond the President and Vice
President) the Framers intended to be impeachable.422 Impeachment precedents in both the House
and Senate are of equally limited utility with respect to subordinate executive officials (i.e.,
executive branch officials other than the President and Vice President). In all of American history,
only one such official has been impeached: Secretary of War William Belknap. Thus, while it
seems that executive officials of the highest levels have been viewed as “civil Officers,” historical
precedent provides no examples of the impeachment power being used against lower-level
executive officials.423 One must therefore look to other sources for aid in determining precisely
how far down the federal bureaucracy the impeachment power might reach.
The general purposes of impeachment may assist in interpreting the proper scope of “civil
Officers of the United States.” The congressional power of impeachment constitutes an important
aspect of the various checks and balances built into the Constitution to preserve the separation of
powers. It is a tool, entrusted to the House and Senate alone, to remove government officials in
the other branches of government, who either abuse their power or engage in conduct that
warrants their dismissal from an office of public trust. At least one commentator has suggested
that the Framers recognized, particularly for executive branch officials, that there would be times
when it may not b
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