Impeachment and the Constitution

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Impeachment and the Constitution

Updated December 6, 2023

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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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