# Impeachment and the Constitution > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3AR46013 ## Record - **Collection:** Congressional research report - **Document type:** CRS Report - **Published:** December 6, 2023 - **Citation:** R46013 ## Text Impeachment and the Constitution Updated December 6, 2023 Congressional Research Service https://crsreports.congress.gov 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. Congressional Research Service 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 Congressional Research Service 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]. Congressional Research Service 1 Impeachment and the Constitution 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...) Congressional Research Service 2 Impeachment and the Constitution 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.”). Congressional Research Service 3 Impeachment and the Constitution 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. Congressional Research Service 4 Impeachment and the Constitution 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). Congressional Research Service 5 Impeachment and the Constitution 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. Congressional Research Service 6 Impeachment and the Constitution 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. Congressional Research Service 7 Impeachment and the Constitution 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. Congressional Research Service 8 Impeachment and the Constitution 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). Congressional Research Service 9 Impeachment and the Constitution 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). Congressional Research Service 10 Impeachment and the Constitution 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). Congressional Research Service 11 Impeachment and the Constitution 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. Congressional Research Service 12 Impeachment and the Constitution 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).” Congressional Research Service 13 Impeachment and the Constitution 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. Congressional Research Service 14 Impeachment and the Constitution 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...) Congressional Research Service 15 Impeachment and the Constitution 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. Congressional Research Service 16 Impeachment and the Constitution 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. Congressional Research Service 17 Impeachment and the Constitution 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. Congressional Research Service 18 Impeachment and the Constitution 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. Congressional Research Service 19 Impeachment and the Constitution 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. Congressional Research Service 20 Impeachment and the Constitution 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. Congressional Research Service 21 Impeachment and the Constitution 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. Congressional Research Service 22 Impeachment and the Constitution 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). Congressional Research Service 23 Impeachment and the Constitution 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). Congressional Research Service 24 Impeachment and the Constitution 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. Congressional Research Service 25 Impeachment and the Constitution 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. Congressional Research Service 26 Impeachment and the Constitution 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). Congressional Research Service 27 Impeachment and the Constitution 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). Congressional Research Service 28 Impeachment and the Constitution 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 testif [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR46013. Public record. Not legal advice.