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Impeachment of the President can bring out the very best or very worst in America's democracy. The ability to remove from office our highest official reflects the depth of our commitment to a government of laws, not men. When Richard Nixon resigned from office in 1974, under threat of imminent impeachment, many foreign leaders were bewildered. They assumed throughout the Watergate affair that, if he had to, Nixon could always clamp down on the media, strike back at his enemies, somehow use his power to secure his position. In those countries, it takes bullets, not ballots, to remove a leader from the throne.
But in America, there is no throne. Indeed, a major impetus for the American revolution was oppression by the British monarchy. The Declaration of Independence catalogued the numerous ways in which King George mistreated the American colonies. So too, our Founding Fathers knew, monarchs often oppress their own people. When the Framers set out to draft a Constitution in 1787, one of their goals was to prevent monarchy by another name. They took pains not to give the President too much power. In fact, some Framers opposed the establishment of a single executive, one person in command of the armed forces and responsible for executing the laws. In the end, they decided in favor of a single executive -- the President -- but adopted measures to prevent him from becoming too powerful. They gave him only a four-year term in office, requiring him to face the voters periodically. In addition, they limited his authority and gave other government officials the means to keep him within his constitutional bounds.
Ultimately, they realized, all of these measures to restrain the President might not be enough. He might overstep the constitutional limits of his power and resist efforts to rein him in. In order truly to safeguard against an oppressive President (or, for that matter, one who otherwise proved unfit), the Framers felt they must provide a means for his peaceful removal from office. And so they did.
The significance of impeachment cannot be appreciated in isolation: It represents one piece in an amazing puzzle. The United States Constitution is one of the most democratic documents in human history. The very first words of the document, boldly proclaiming that We The People ordain and establish the Constitution, imply the core principle of American government -- all power resides with the People. We are the masters; government officials are our servants to whom we delegate certain authority.
Much of the rest of the document was designed to ensure that government officials do not usurp their authority. On the most familiar level, the Constitution divides power between the federal government and the states, and divides federal power among three different branches that can check and balance one another. Further, the Constitution provides citizens with important rights (free speech, jury trial, due process and more) that cannot be deprived by government.
The Constitution also contains lesser-known features that reinforce its commitment to democracy. For example, the Constitution says that "The United States shall guarantee to every State in this Union a Republican Form of Government." Not only is our federal government democratic in nature, but each state's government must be as well. And the Constitution stipulates that "No Title of Nobility shall be granted by the United States." England has its Lords and Dukes, but in America the highest calling is citizen. So too, the Constitution prohibits a religious test for office, and the quartering of soldiers in people's homes. An abiding respect for human liberty pervades this great document, and an elegant architecture protects that liberty.
Impeachment is a pillar, at once an expression and means of protecting our hard-earned and ever-precious liberty. Even the President, who commands our armed forces and controls our nuclear weaponry, who flies in Air Force I and lives in luxury at the public expense, even this most powerful and privileged person can be brought to heel if he abuses the trust we place in him.
The removal of Richard Nixon through the impeachment process may have been a national tragedy, and was surely a national crisis, but it nevertheless displayed America at its best. A president was lost but a transcendent principle affirmed: No man is above the law. And that principle was affirmed without bloodshed. Critically, in the end the removal of Nixon was a bi-partisan affair: Many Republicans in the House of Representatives stood ready to vote for impeachment, and many Republican senators favored conviction. Throughout the country, the majority of all Americans, Republicans as well as Democrats, believed that Nixon must be removed from office. The winner of the prolonged contest was not a particular political party or ideology but the People and our Constitution.
But there's a less splendid side to the impeachment power: It can be used as a means to circumvent or subvert the ballot box, a weapon with which to bludgeon a President one dislikes or disapproves. The only president actually impeached by Congress was Andrew Johnson, who escaped conviction and removal by a single vote. In the view of most historians, Johnson's greatest offense was policy disagreement with the Congress. At any rate, the entire affair smacked of politics and partisanship: In the House, all 42 members of the Republican Party voted to impeach the Democratic President, even though the charges were less than persuasive (though, in the end, the attempt to remove Johnson failed thanks to the defection of seven Republican senators). Certainly his impeachment divided rather than united the country, and his trial lacked the dignity and impartiality needed to command a sense of legitimacy and respect in the eyes of the American people.
Although in Johnson's case the drive for removal fell just short, imagine if it succeeds in another such case (or one even more baldly political). The election of a President by millions of Americans can be undone by a sham procedure designed to serve partisan interests. There may be a peaceful transition of power, but not a legitimate one. We will have, in effect, a palace coup.
Therein lies the reality of impeachment: It is a double-edged sword. Used properly, it reflects and serves our deepest ideals. Used improperly, it undermines those very ideals. At its best, it distinguishes our commitment to democracy. At its worst, it is the triumph of power politics and partisanship over democracy, and that way lies authoritarianism.
Of course, there are gray areas, and the kinds of assessments we've been discussing are somewhat subjective. At the time, there were at least a few commentators who believed Richard Nixon's misconduct did not justify impeachment, and that a President who won 49 states in a landslide election was simply driven out of office by his political opponents. And there are still some historians who believe that Andrew Johnson did, in fact, commit misconduct worthy of removal. The subjectivity of such judgments has been clearly in evidence during the battle over Bill Clinton's presidency. Some observers maintain that we are witnessing the flowering of a glorious constitutional process -- testing, through deliberate and fair means, whether Clinton's patently improper actions rise to the level of impeachable offenses. To others, we have nothing more than a witch-hunt, an attempt to remove a President for what amount to peccadilloes.
Is the impeachment of Bill Clinton necessary and proper, as its supporters maintain, or a national disgrace, as opponents insist? The Congress and all Americans need to make that judgment for themselves. But before we can do so, before we can evaluate the process as it unfolds and the work of our servants, we need to understand what impeachment is all about. Only then can the citizenry properly monitor the incredibly important public business that is taking place.
This Guide aims to provide that understanding, and thereby to help citizens do their job.
Impeachment requires fairness and adherence to a constitutional standard. Members of Congress
are not supposed to take polls in order to decide whether to impeach and remove the President.
But the public is never irrelevant. The public's role during an impeachment trial is akin to its role
in a criminal or civil trial. Merely by watching, we deter abuses. And by seeing, we learn whether
our servants proceed properly. By making our voices heard, we prevent abuses and guide
conduct. Additionally, we have a role at the ballot box. Members of Congress should do what
they think right, but they cannot and should not be immune from the will and judgment of the
People.
Impeachment is the process by which charges are brought against a government official, which can result in his removal from office. It is the equivalent of "indictment" in the criminal law. It does not mean that the person impeached is guilty, only that a trial must be held to determine his innocence or guilt.
The word "impeach" is derived from the Middle English "empechen," meaning to impede or accuse, and the Latin "impedicare" which meant to entangle or put in fetters. The first impeachment trial was in England in 1376, but the practice did not become regular until the Seventeenth Century.
The impeachment measure was adopted by the Founding Fathers when they drafted America's
Constitution in 1787. (The Constitution was ratified the following year.) The term "impeachment"
is used several times in the Constitution, as discussed throughout this Guide.
The House of Representatives. Article I, Section 2 of the Constitution says the House "shall have the sole Power of Impeachment." Remember, though, this means only that the House can bring charges. It does not conduct the trial or vote to determine whether someone will be removed from office.
Article I, Section 5 of the Constitution provides, as a general matter, that "Each House may
determine the Rules of its Proceedings." The House has developed a series of rules with respect
to impeachment investigations and proceedings. After someone has lodged a complaint of official
misconduct, the matter is referred to the House Judiciary Committee to investigate whether
impeachment is warranted. If necessary, the committee will conduct hearings, questioning
witnesses and subpoenaing documents. If the committee recommends impeachment, the matter is
taken up by the entire House. The House impeaches by passing what are called "Articles of
Impeachment" -- each article makes a specific accusation that allegedly justifies impeachment.
The Senate. Article I, Section 3 of the Constitution states that: "The Senate shall have the sole Power to try all Impeachments." That means that the Vice President presides over impeachment trials, since, in general, under Article I, Section 3, "The Vice President of the United States shall be President of the Senate." (In practice, Vice Presidents rarely bother to preside over the Senate -- they show up only on occasion, such as to cast the deciding vote when the Senate is deadlocked.)
The Constitution makes one exception, specifying that "When the President of the United States is tried, the Chief Justice [of the Supreme Court] shall preside." This provision guards against the obvious conflict of interest were the Vice President to preside at the President's trial. Interestingly, today that conflict of interest could cut in either direction. On the one hand, the Vice President may favor the President out of loyalty. On the other hand, the Vice President would become President if the President were convicted by the Senate, which could give him incentive to slant proceedings against the President.
Who presides if the Vice President is impeached? A trick question, because if you fed the text of the Constitution into a computer, the bizarre answer would be that the Vice President presides at his own impeachment trial! As noted, the Vice President normally presides over the Senate -- and while the Constitution makes an exception when the President is impeached (putting the Chief Justice in charge), it does not make any other exception. Therefore, on a literal reading of the Constitution, the Vice President presides at his own impeachment trial.
Of course, common sense dictates that the Chief Justice, not the Vice President, would preside at a Vice President's impeachment trial as well. After all, the reason the Vice President does not preside at a President's impeachment trial is to avoid a blatant conflict of interest; The conflict would be even more blatant if the Vice President were to preside at his own trial. Obviously that situation is unthinkable.
An interesting issue related to all this arose in the impeachment trial of Andrew Johnson in 1868.
There was no Vice President at the time (Johnson having become President by virtue of Abraham
Lincoln's assassination). Next in line to be President if Johnson were removed was the President
pro tempore of the Senate, Benjamin Wade. The question arose whether Wade, a fierce political
opponent of Johnson, should be allowed to participate and vote in the trial. It was argued that
allowing him to do so was analogous to letting the Vice President preside at the President's trial
-- it involved a similar conflict of interest, since Wade would have succeeded to the presidency if
Johnson were impeached. However, Wade was allowed to participate.
Under Article II, Section 4 of the Constitution, "The President, Vice President and all civil Officers of the United States" may be impeached and, if convicted, shall be removed from office.
Members of Congress may not be impeached. Although this is not clear from the text of the Constitution, it was established by America's very first impeachment trial. In 1797, the House of Representatives impeached Senator William Blount, a United States Senator from Tennessee, charging him, among other things, with conspiring to conduct a military expedition on behalf of the King of England. In his trial before the Senate, Blount argued that members of Congress are not "civil officers" subject to impeachment under the Constitution, because they are not appointed by the President. By a vote of 14 to 11, the Senate endorsed the argument and acquitted Blount. No member of Congress has been impeached since.
That does not mean, however, that members of Congress can never be removed from office for
misconduct. Under Article I, Section 5, "Each House shall be the Judge of the Elections, Returns,
and Qualifications of its own members. ... Each House may ... punish its Members for disorderly
Behavior, and, with the Concurrence of two thirds, expel a Member." As a result, both the House
of Representatives and the Senate can throw out members of their body deemed unfit. Indeed, if
they wish they can do so for behavior that falls short of the kind of misconduct generally deemed
necessary for removal by impeachment and trial. One argument against permitting impeachment of
members of Congress is precisely that the Constitution clearly authorizes a different, and less
onerous, means of removing unfit members.
The House of Representatives appoints "managers" from its own ranks, who essentially prosecute the case. (They may be assisted by staff, including outside counsel.) The President may be represented by anyone he wishes -- outside counsel, members of Congress, White House counsel, or even himself.
Traditionally, the House selected its managers through either a majority vote of the entire House,
or a resolution authorizing the Speaker to name them. During the several impeachments of judges
that took place in the 1980s, the House leadership and the leadership of the House Judiciary
Committee consulted and selected the managers.
A person impeached and removed from office may not receive the kinds of penalties normally imposed in the criminal justice system -- imprisonment or monetary sanction. Rather, under Article I, Section 3 of the Constitution, "Judgment 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." Presumably, the Senate could disqualify someone from future office either permanently or for a specified period of time.
The Constitution says that anyone impeached "shall be removed from office" whereas punishment shall "extend no further" than removal and disqualification from future office. Thus, removal of office appears mandatory but disqualification from future office is not -- the Senate has discretion to impose this additional penalty. And, in fact, the Senate has sometimes imposed this penalty and sometimes decided not to. Seven officials (all judges) have been convicted and removed from office. In two of these cases, the punishment also involved disqualification from holding future federal office. Interestingly, the Senate has imposed disqualification by majority vote. The view has been that while two-thirds vote is necessary for impeachment -- and therefore automatic removal -- the Constitution does not say that two-thirds vote is necessary for the additional penalty of disqualification.
Could the Senate convict a President but then allow him to remain in office -- if, for example, he
publicly acknowledged guilt and expressed remorse? As noted, the Constitution suggests
otherwise: It plainly contemplates that conviction makes removal mandatory. On the other hand,
were the Senate to allow the President to remain, it's hard to imagine who would intervene to
force his removal. The President would be unlikely to complain and, as discussed below, courts
do not review decisions in impeachment trials.
After stating that conviction by the Senate carries no penalty beyond removal from office, the Constitution adds: "but the Party convicted shall nevertheless be liable and subject to Indictment Trial, Judgment, and Punishment, according to Law." In other words, once removed from office, the President is subject to the normal workings of the criminal justice system.
However, it is unclear from the above language whether the President may be indicted and prosecuted (independent of any impeachment proceedings) while he remains in office. Although there is some disagreement, the prevailing view in the legal community is that the President may not be indicted while still in office.
Why, then, did the Paula Jones lawsuit against President Clinton go forward? The answer is that
the suit was not a criminal case. It was a civil suit, brought by one citizen against another,
unrelated to any crimes against the government. The Supreme Court ruled that, in such a case, the
suit may go forward against a sitting president.
No. Article II, Section 2 of the Constitution says the President "shall have the Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." Of course, if someone other than the President is convicted by the Senate, the President may pardon him with respect to the criminal justice system. That way, although the official is removed from office, he does not face criminal prosecution. If the President were convicted by the Senate, he could not pardon himself with respect to subsequent prosecution because he would no longer be president.
Could the President, prior to conviction by the Senate, pardon himself with respect to any future
criminal prosecution (much as Gerald Ford pardoned Richard Nixon with respect to any future
prosecution)? This is an interesting question, because the text of the Constitution conflicts with
common understanding. On a literal reading of the Constitution, the President could pardon
himself -- no limitations are placed on whom he may pardon. However, the principle that no
person may be judge of his own cause was fundamental to the Framers, and most constitutional
scholars believe that the President may not pardon himself. In any case, no President has ever
attempted to do so -- not even Richard Nixon, who left office facing a variety of possible criminal
charges.
Not necessarily. Does it sound farfetched for Congress to impeach and try someone who is no longer in office? It has happened! In 1876, Secretary of War General William Belknap, accused of accepting a bribe, resigned just hours before the House was scheduled to consider articles of impeachment. The House went ahead and unanimously impeached him, and by a vote of 37-29 the Senate rejected the argument that Belknap's resignation should abort the case. The Senate proceeded with the trial, but Belknap was narrowly acquitted. A number of the Senators who voted for acquittal explained that they felt they lacked jurisdiction because of his resignation. (Incidentally, Belknap is the only cabinet member ever impeached.)
By contrast, when in 1926 Illinois District Judge George English, impeached for various acts of wrongdoing, resigned from office six days before the scheduled commencement of his trial in the Senate, the matter was discontinued. The same was true, of course, when Richard Nixon resigned just prior to adoption of articles of impeachment by the House.
The Belknap precedent aside, is there any logic to impeaching and trying an official who is no longer in office? One answer might be the value of establishing a precedent that certain misconduct is (or is not) impeachable. But there's a more direct, practical reason why Congress might choose to proceed even after a resignation. As we have seen, one potential punishment of impeachment is disqualification from future office. Suppose an embattled president resigned, with an eye towards running in the next election. To preclude this possibility, Congress might choose to go ahead and impeach, try, and convict the President, and disqualify him from holding future office.
Evidence suggests that the Framers of the Constitution concurred in this conclusion -- they did
not regard resignation as automatically precluding impeachment or conviction.
The Constitution does not state the vote required to impeach, so it has always been assumed to require majority vote -- the usual requirement for action by the House of Representatives. The Constitution spells out that conviction requires two-thirds of the Members present in the Senate. (As with any action by either body, a quorum -- more than half the members -- must be present.)
The Framers required a two-thirds vote for conviction in order to make removal of the President (which the Framers did not want done lightly) more difficult. Note that the two-thirds requirement is not unique. The Constitution requires two-thirds majority for several actions (ratifying treaties, overriding vetoes) deemed too important to be left to mere majority vote. Specifically with respect to impeachment, Founding Father Alexander Hamilton observed that "As the concurrence of two thirds of the Senate will be requisite to condemnation, the security to innocence, from this additional safeguard, will be as complete as itself can desire."
The two-thirds requirement makes it far less likely that conviction will be a purely partisan matter (since it's rare that one party controls two-thirds of the Senate). Even if a party does control two-thirds of the Senate, just a few dissenting members may be enough to prevent unjust conviction. In the case of Democrat Andrew Johnson, seven Republicans voted to acquit -- giving Johnson the one-vote margin that kept him in office.
Note an interesting difference between impeachment and a criminal trial. In the federal system, and virtually every state, acquittal (like conviction) requires a unanimous vote: A divided jury results in a hung jury, which means neither conviction nor acquittal. By contrast, just as conviction in an impeachment trial is easier to attain (two-thirds vote rather than unanimity), acquittal is easier still. Anything short of conviction is deemed an acquittal. Thus, Andrew Jackson was acquitted -- even though only 19 of the 54 senators voting cast their ballots for acquittal.
Incidentally, the Senate votes separately on each Article of Impeachment. If there is two-thirds
vote to convict on any article, the President is convicted and must be removed from office, even if
he is acquitted of all other charges. Indeed, in 1936, Florida District Judge Halsted Ritter was
acquitted on six of seven articles of impeachment, but convicted on the seventh -- and removed
from office.
Article II, Section 4 says that the President (or others) "shall be removed from Office on
Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."
Treason is specifically defined in the Constitution: "levying War against [the United States], or in
adhering to their Enemies, giving them Aid and Comfort." Bribery is not defined in the
Constitution, but is a federal crime defined by statute. By contrast, the phrase "high crimes and
misdemeanors" is not defined in the Constitution and appears nowhere in America's criminal
code. (The phrase first appeared in England in the 14th Century, but its meaning and application
were unclear.)
This is by far the most controversial question surrounding the impeachment process. Gerald Ford, at the time a congressman (initiating impeachment proceedings against Supreme Court Justice William Douglas, whose main offenses were a loose lifestyle and senility), famously said that "an impeachable offense is whatever a majority of the House of Representatives considers it to be" and conviction results from "whatever offense or offenses two-thirds of the [Senate] considers to be sufficiently serious to require removal of the accused from office." In a certain sense this is true -- as discussed below, no court or other body can reverse a decision by the House to impeach or the Senate to convict. Moreover, there is no legal code or court cases defining with precision "high crime and misdemeanor." However, it is almost universally recognized that Ford is wrong if he suggests that there are no standards to apply -- that Congress could legitimately, for example, remove a President simply because they disliked his policies or political affiliation.
To decide the meaning of "high crimes and misdemeanors," we might start by looking at the intention of the people who wrote the Constitution. There are two principal sources for gauging their intent: the notes (mostly taken by James Madison) from the debates at the Constitutional Convention in 1787; and the Federalist Papers, a group of essays (mostly by Madison and Alexander Hamilton) written in support of ratification of the Constitution.
The Constitutional Convention included only one discussion of what is meant by "high crimes and misdemeanors." It occurred on September 8, just a little more than a week before the Constitution was adopted by the delegates. They were considering a draft which listed only treason and bribery as grounds for impeachment. George Mason of Virginia complained that the grounds for impeachment needed to be broadened, because treason and bribery "will not reach many great and dangerous offenses." He proposed adding "maladministration" as a ground for impeachment. But James Madison, generally regarded as the "Father of the Constitution," protested that "so vague a term will be equivalent to a tenure during pleasure of the Senate." Mason thereby withdrew "maladministration" and substituted "High crimes and misdemeanors." Madison agreed, and the amended clause passed.
What do we learn from this exchange? Madison rejected "maladministration" because it would put the President at the mercy of Congress -- it could remove the President simply because it did not think he was doing a good job. Mason, while wanting the grounds for impeachment broadened, immediately understood and accepted Madison's point. Clearly, then, the Framers did not envision "high Crimes and Misdemeanors" as a catch-all term that justified removing the President (or some other civil officer) from office whenever the Congress disliked or disapproved him. They introduced the phrase precisely to avoid that scenario. As Mason implied, the phrase was designed to cover "great and dangerous offenses" other than treason or bribery. In other words, it seems reserved for serious misconduct.
This exchange, plus the Constitution's specific reference to "bribery" and "treason" as impeachable offenses, suggests that the framers were concerned with the kinds of acts that undermine the legitimacy of our government. The Federalist Papers supports this view. (It devotes two essays to impeachment, which briefly touch on the scope of an impeachable offense.) In Federalist 65, Alexander Hamilton says that impeachable offenses are those that arise from "the abuse or violation of some public trust" and "relate chiefly to injuries done immediately to the society itself."
Needless to say, the public trust can be abused short of an actual crime.
Although various targets of impeachment (ranging from Supreme Court Justice Samuel Chase in 1805 to President Richard Nixon in 1974) have argued that impeachment is reserved for instances of criminal conduct, the consensus has been to the contrary. (Indeed, only a few of the impeachments to date have been for behavior that clearly constituted a crime.) The phrase "high crimes and misdemeanors" has always been understood as involving an abuse of power or of the public trust, whether or not the behavior constitutes a crime. Logic supports this position. Suppose, for example, that a President is in a constant state of drunkenness or takes a prolonged vacation in the midst of a national crisis. It is obvious, under such circumstances, that removal from office would be appropriate even though no crime were committed. So too, if the President systematically disarmed the country, or pardoned all criminals from his own political party, surely he would be removed and rightly so, even though he committed no crimes.
Just as the President can be impeached for behavior that is not criminal, the reverse is also true: The President may commit certain crimes that do not subject him to impeachment. There are crimes that are either trivial or too removed from a President's public responsibilities to form the basis of impeachment. Few people would claim that traffic violations, for example, constitute an impeachable offense, even if they technically constitute a crime.
It is generally accepted that "high crimes and misdemeanors" must be regarded as a single phrase. In other words, the "high" modifies "misdemeanors" as well as "crimes." This belies any notion that minor misconduct can be ground for impeachment.
While the precise contours of impeachable offenses remain open, they tend to involve conduct that undercuts the legitimacy of American government. Clearly, though, some behavior outside this definition would be impeachable. No one would say that a President can commit murder and remain in office, even though the act may take place in a wholly private setting unrelated to the President's official capacity and not threatening the legitimacy of government. Certain actions are so egregious that they make it impossible for the President to remain in a position of trust.
Apart from such exceptions, the general rule seems to be that high crimes and misdemeanors involve abuse of the presidential office or at least of the public trust. In the case of Richard Nixon, that was an easy standard to apply. His use of government power (for example, seeking to have the CIA obstruct an investigation by the FBI) directly abused his Article II powers as President. But other times, it's less clear. Defenders of Bill Clinton argue that perjury in a civil case cannot be an impeachable offense because it does not involve a public matter. However, opponents counter that perjury undercuts the ability of the judicial system to function, and is thus intolerable from the person with the constitutional responsibility to "take Care that the Laws be faithfully executed" -- the President.
The phrase "high crimes and misdemeanors" is far from the only vague language in the
Constitution -- "due process," "cruel and unusual punishment," and many other clauses are open
to endless interpretation. While this creates difficulties, it also provides flexibility -- we are not
forever locked into an eighteenth century understanding of things. This may be healthy,
particularly in the context of impeachment. What was regarded as a grievous offense in 1787
would not necessarily be so today, and vice versa.
The idea of following precedent established by earlier courts is fundamental in the American justice system. In many circumstances, a court is required to follow the example of what previous courts have done, even if it thinks those courts were mistaken. All federal district courts are bound by the rulings of the court of appeals in their jurisdiction, and the district courts and courts of appeals alike are bound by decisions of the Supreme Court. In each of these cases, if the court chooses to disregard the prior ruling, it will be reversed by the higher court -- and it may be rebuked in the process. The situation is somewhat different with the Supreme Court. Because there is no higher court to reverse the Supreme Court, it may do as it pleases with respect to precedent. Even so, it is generally expected that the Justices will follow precedent unless they have a very good reason not to -- if, for example, they believe circumstances have changed so much as to make an earlier decision inapplicable, or if it regards the earlier decision not simply as wrong but as indefensible.
The question arises whether the House and Senate should pay similar heed to precedent when determining whether particular behavior constitutes an impeachable offense. As we shall discuss below, Congress has the final word in impeachment trials -- no one can reverse it. Therefore, like the Supreme Court, it is clearly free to disregard precedent. But should it, like the Court, show a healthy respect for precedent?
To some extent, Congress should feel less bound than the Court. As noted, the Senate does not offer official written opinions accompanying its impeachment decisions. This would make it difficult to follow precedent even if the Senate were so inclined. For example, suppose a President were impeached for refusing to enforce a law enacted by Congress. It may be thought that the Senate should acquit based on the precedent of the Andrew Johnson trial (discussed later), since Johnson was acquitted despite apparently disobeying an act of Congress. However, the later Senate cannot be certain why Johnson was acquitted. Maybe it was because some senators believed that Johnson did not really violate the act or that he did so but the act was unconstitutional. Although some senators issued written explanations of their opinion, others did not, and there was no official opinion on behalf of the Senate. This would make it difficult to apply precedent with any reliability.
Perhaps the reason the Senate is not expected to provide an official opinion is because of the difference between impeachment trials and trials by the judiciary. Although the Senate is expected to act impartially, and in many respects like a judicial body, there is an inescapable element of politics in its decision making. (This is discussed in more detail below.) The Senate reflects and must heed the political circumstances of the day.
In addition, Congress would have much less precedent to draw on. Again, consider a case involving a President who disregards a law of Congress. The Andrew Johnson precedent is just one case and is more than a century old. If a current situation arose, it would surely differ in important particulars from the Johnson case, and the relationship between Congress and the President has changed in any event. It may make more sense for courts to follow precedent, because they have at their disposal thousands of cases, and the incremental development of a body of law. Over time, they get to chisel away at and fine-tune their precedents as they deal with multiple fact patterns. Having few impeachment cases to draw on, following precedent in such cases might amount to fitting round pegs into square holes.
For the above reasons, Congress should feel freer than the Supreme Court to decide matters anew without undue concern for what previous Congresses have done. However, it does not follow that they should ignore the past. The reason courts respect precedent is that it provides stability and a sense of fairness -- it gives people some idea what behavior is likely to get them into trouble. A President faced with enforcement of a law he regards as odious might well ask himself whether he faces impeachment and conviction if he disregards the law. Naturally, he will look at what happened in the past. He may conclude, based on the Andrew Johnson trial, that disregarding a statute is not a high crime or misdemeanor. For a later Senate to turn around and reach a different conclusion could be seen as unfair. To the extent the House and Senate do follow precedent, it gives the President useful guidance and prevents a situation where he ends up impeached (and perhaps convicted) for behavior he could not have expected to get him in trouble. This could spare the country and our presidents an unnecessary ordeal.
In short, the House and Senate are not bound by precedent, but nor should they ignore the past -- they should give at least some measure of respect to earlier decisions, at least where the basis of those decisions can be discerned. The exact degree of respect, of course, will be for each senator to decide in the context of each case.
Incidentally, in certain respects Congress has shown respect for precedent in the impeachment
context. In 1799, in the trial of Senator William Blount, the Senate determined that members of
Congress are not civil officers and thus not subject to impeachment. Although that conclusion is
far from obvious (in England impeachments were used primarily against members of the House of
Lords), it has been accepted as a settled matter for 200 years.
In the criminal and civil justice system, rules governing the conduct of trials, in terms of both evidence and procedure, emerge through legislation and court cases. Congress and state legislatures draft certain codes. However, these codes do not govern every possible situation or question that might arise. Moreover, the application of various rules or practices requires interpretation. As a result, many practices in the courts of America emerge over the course of thousands of cases, through either habit or the written decisions of judges.
However, in the case of impeachment, there is little guidance by way of written rules (for example, there is no code of evidence) and even less by way of cases. There have been few impeachment trials, only one involving a President and that more than a century ago, and no official written decisions. However, in March 1868, the Senate adopted a series of "Rules Of Procedure And Practice" for impeachment trials. Although the Senate is free to amend them, these rules have remained virtually unchanged. They are for the most part about the mechanics of the trial. For example, the presiding officer (the Chief Justice when the President is tried) makes evidentiary rulings, but may be overruled by a majority vote of the Senators. The House managers and defense lawyers question witnesses, but if a Senator wishes to question a witness he must submit the question in writing to the Chief Justice. Time limits for arguments and the procedure for voting are established, and so forth.
A few other rules warrant mention. The entire Senate may receive testimony and other evidence, or it may delegate these tasks to a special committee. In recent times, the task has been delegated to a committee (so as to keep the entire Senate from being tied up in what can be a time-consuming process), which then reports all the evidence to the full Senate. The full Senate can then choose to buttress the evidence, for example by calling new witnesses or recalling witnesses.
An odd little rule provides that "if a Senator is called as a witness, he shall be sworn, and give his testimony standing in his place." Quite apart from the quirk that the senator is forced to stand when testifying, it is remarkable that senators can be called as witnesses at all -- they are the judges (or jurors) of the case. In the famous "Monkey Trial" in Tennessee, when schoolteacher John Scopes was prosecuted for teaching evolution, Clarence Darrow called Williams Jennings Bryan, one of the opposing lawyers, to the witness stand. That was bizarre enough, but the idea of calling as witnesses those who will decide the case is even more so. Yet it's understandable why the Senate rules anticipate this possibility -- since impeachment can result from a political tug of war, senators may well play a role in the underlying events that give rise to the impeachment (as was the case with Andrew Johnson).
One thing the Senate rules do not do is cover the admissibility of evidence. In a criminal or civil case, disputes over the admissibility of evidence invariably arise. The judge makes decisions, based on a written evidentiary code. There are many difficult judgments -- for example, whether a particular piece of evidence falls within one of the exceptions to the hearsay rule -- but at least there are rules to apply. In impeachment trials, the Senate (in the first instance the Chief Justice, subject to reversal) improvises.
The Senate would presumably be more flexible in allowing in evidence than would be the judge in
a regular trial. Much evidence is kept out of trials because jurors, as laypeople, might find it
confusing or prejudicial. Arguably the Senators, many of whom are lawyers, would be able to
assess the value of such evidence. Take the hearsay rule, which (absent various circumstances)
excludes a witness's testimony about what someone else told the witness. The theory is that, if the
person who allegedly made the statement does not take the stand, there's no opportunity for the
other side to cross-examine and show that the statement was false. However, senators may
recognize this problem and give the evidence less weight -- hence there's no need to exclude the
evidence altogether.
In a criminal trial, a verdict of guilty requires a finding of guilt "beyond a reasonable doubt." By contrast, a verdict for either side in a civil case requires only a "preponderance of evidence" -- a finding that that side's position is stronger than the other side's, even if only by a tiny amount. Thus, suppose person X brings a civil suit against person Y for assault and Y denies the charge. If the jury decides that there's a 51% chance that Y did in fact assault X, it must find for X. However, if the government then prosecutes Y, the identical showing requires acquittal -- the government will have failed to show guilt beyond a reasonable doubt.
Which standard applies in a trial of impeachment? The Constitution does not specify, and the Senate has not adopted an official standard. Indeed, in the trial of Judge Harry Claiborne in 1986, the Senate rejected (by a vote of 75-17) a proposal to adopt the "beyond a reasonable doubt" standard. The Senate did not pick some other standard: It left the appropriate standard to be determined by each individual senator.
What would be the most sensible standard? The fact that impeachment applies in the case of "treason, bribery, and other high crimes and misdemeanors" suggests an analogy to the criminal trial -- which would suggest the "reasonable doubt" standard. However, the impeachment process does not result in criminal punishment and its purpose is not punishment but the removal of an unfit President. For these reasons, the case can be made that a lower standard is necessary. If all 100 senators feel confident (though not certain) that the President has committed some terrible misdeed that disqualifies him from the presidency, does it make sense that he remains in office because there is some reasonable doubt? The reasonable doubt standard rests on the age-old notion that it is better to let ten guilty people go unpunished than to punish one innocent person. But when the idea is to protect the country, and when the punishment is not loss of life or liberty, such a standard appears too rigid. Note, in this connection, that the President lacks various protections given to the criminal defendant. Among other things he is not entitled to a jury, he may be convicted well short of unanimous vote, and he cannot be pardoned if convicted. A lower standard for conviction is just one more means of recognizing that the balance between the need to punish wrongdoing and protect innocence differs in impeachment cases from criminal cases.
However, we should beware of going too far in the opposite direction and providing too little protection for the President. At the trial of Andrew Johnson, Senator Charles Sumner actually suggested that the burden of proof was on the President to establish his innocence. Such an approach might make it too easy to remove a President, which both risks instability for the country and poses unfairness to the individual. After all, even though conviction by the Senate does not result in criminal punishment, it can result in lifelong humiliation -- no small consequence.
Some commentators have argued that the appropriate standard is somewhere in between the civil and criminal standard -- maybe 75% certainty. This would not be unique. In certain types of cases, the legal system uses an in-between standard, such as "clear and convincing evidence." Ultimately, each senator must choose for himself or herself an appropriate standard. Even if the Senate voted to adopt a certain standard, there's no way to enforce it; each senator would still be free to weigh the evidence and apply whatever standard he deems appropriate.
The question of the proper standard also arises in the House's decision whether to impeach. This decision has been likened to the decision of a prosecutor or grand jury to indict -- in each case it amounts to the bringing of charges that will be followed by a trial. The standard for indictment is usually "probable cause." However, in the Nixon case, the House elected to employ a higher standard -- the "clear and convincing evidence" standard which, as noted above, is occasionally used in the civil justice system. The House decided that it needed a higher degree of proof to impeach than is needed to indict.
Thus, it is harder to bring charges against a President than against a criminal defendant, but easier
to convict (both because unanimity is not required and because the "beyond reasonable doubt
standard" has not been adopted). This seeming oddity may actually make good sense. Because
impeachment of a President can rock the nation, it should not be resorted to absent a serious
likelihood of guilt. However, because an unfit president poses a real risk to the nation, conviction
should be available even in the face of a degree of doubt.
Presidents have long claimed "executive privilege" to withhold private materials requested by other branches of government, primarily on the ground that disclosure would impede the ability of the President to have candid conversations with advisors. In the case of the United States v. Nixon, in 1974, the Supreme Court acknowledged a certain executive privilege in this regard, but held that it must be balanced against the public interest in release of the material. In that case, the Court ordered the release of the requested materials (tape-recorded conversations between President Nixon and his aides) because the government needed them for several criminal prosecutions. As it happens, the tapes in question helped establish Nixon's personal involvement in the Watergate cover-up, and led to his resignation.
However, that case did not answer whether a President may claim executive privilege to protect the disclosure of materials sought by the House or Senate in connection with impeachment or an impeachment trial. That too was a pressing issue during the Nixon saga, when the President repeatedly rebuffed subpoenas of his tape-recorded conversations by the House Judiciary Committee. But the Committee opted not to bring the matter to court, instead writing a separate article of impeachment charging Nixon with acting in a matter "subversive of constitutional government" by refusing to turn over the subpoenaed materials. The Committee voted 28-10 in support of that article of impeachment. Because the case never went to trial, the issue of whether a President may claim executive privilege in the impeachment context was not resolved.
Most commentators believe that the claim of executive privilege is at its weakest in the context of an investigation (or trial) in connection with impeachment proceedings. The Constitution gives the House "sole power to impeach" and the Senate "sole power to try impeachments." How can these powers be properly exercised if the very person under investigation can refuse to turn over relevant materials? As it turned out in the case of Nixon, the materials proved his guilt -- his real reason for resisting disclosure was presumably to protect himself from impeachment.
This is not a legitimate goal, yet it's one likely to motivate any president under investigation or facing trial.
On the other hand, if executive privilege were deemed not to exist in the impeachment context,
the House might initiate an impeachment investigation in order to get materials that may
embarrass the President. Even more importantly, there may be cases where disclosure of the
materials could compromise national security. It may be, then, that there remains some executive
privilege to withhold materials requested in connection with impeachment, but it can be overcome
by demonstrating that the need for the material trumps the reasons for withholding it.
The President, like any citizen, has the constitutional right under the Fifth Amendment to be free from self-incrimination -- in other words, the right to remain silent. If the House or Senate subpoenas him during the course of an impeachment investigation or trial, may he assert that right and refuse to answer questions?
The answer is clearly yes -- under some circumstances. The Fifth Amendment protects one from assisting in his criminal prosecution, but its assertion is not limited to when he is on trial -- it may be invoked any time a person reasonably fears that his answers could be used against him in a future criminal prosecution. As we have seen, after removal from office the President could be indicted and tried in the criminal justice system. Accordingly, he runs the risk that any testimony he gave before the House or Senate would later be used to incriminate him. Under the circumstances, he is perfectly entitled to maintain his silence.
However, suppose the offenses in question clearly do not involve any criminal conduct. Imagine, for example, that the President is charged with having lied to the public or taking a long vacation while the country was at war. He cannot claim that he fears future criminal prosecution. May he still claim the right to remain silent on the ground that his testimony could damage him with respect to his trial in the Senate? Probably not. The Fifth Amendment right to silence is the right not to incriminate yourself -- which specifically means assist a criminal prosecution against yourself. That is why, for example, O.J. Simpson could not be forced to testify at his criminal trial but was forced to testify at his civil trial. At the civil trial, there was no risk of incrimination (since he had already been acquitted on criminal charges, and could not be retried). Even though his testimony could still damage him, and cost him millions of dollars, there was no risk of criminal prosecution and therefore he could be compelled to testify. Likewise, conviction by the Senate is not a criminal conviction. Therefore, the President cannot claim the protection of the Fifth Amendment if the sole basis of his claim is that his testimony might hurt him in the trial of impeachment.
As a practical matter, it's unlikely that a President would invoke the Fifth Amendment under any
circumstances. It might help him in the event of future prosecution, but at the expense of
impeachment and removal from office. The example of President Clinton is instructive. Asked by
the Special Counsel Ken Starr to testify before the grand jury investigating him in connection with
charges of perjury and obstruction of justice, President Clinton agreed to give videotaped
testimony. He could have declined (even if subpoenaed), asserting his Fifth Amendment privilege,
and faced no penalty. Indeed, it is almost unheard of for the target of a grand jury investigation to
be asked, let alone to give, testimony. But instead of invoking his Fifth Amendment right to
silence, President Clinton gave testimony that could subject him to prosecution for perjury. He did
so because the risk of political damage (including possibly encouraging impeachment) was too
great if he invoked his Fifth Amendment right.
This may seem like a bizarre or purely theoretical question: In fact, it could easily arise. Suppose that in October a Republican-controlled House of Representatives adopts articles of impeachment against a Democratic president. One month later, the November election produces a majority of Democrats in the House. The new sentiment is anti-impeachment. Can the House rescind its earlier vote? What if the Senate has already begun the impeachment trial?
Although this situation has never arisen, presumably the House can change its mind and repeal articles of impeachment. By analogy to the criminal justice system, when a prosecutor or grand jury decides not to bring charges, they are free to change their minds. So too, a prosecutor is free to drop charges in the middle of a trial. There's no reason to think that the House doesn't enjoy the same perogative.
A related question: what happens if an impeachment trial is underway, and the November election changes the composition of the Senate?
This would create real headaches, since the new senators (essentially new jurors) would not have heard all the evidence. Would the Senate have to start all over? After all, in America's justice system, a new juror cannot be introduced in the middle of a case (only an alternate juror who has heard all the evidence).
As a practical matter, precisely because of the complications that would arise, the Senate is
unlikely to start a trial of a President shortly before an election. But in the case of impeachments
of other officials, similar problems have in fact arisen. When Judge John Pickering was impeached
in 1803, an election intervened before the trial. In that election, three House members who had
voted to impeach Pickering were elected to the Senate. A move to disqualify them failed. History
virtually repeated itself in the 1992 impeachment of Judge Alcee Hastings. Once again, three
House members who voted to impeach Hastings were elected to the Senate prior to Hastings trial.
However, to avoid any conflict of interest, they disqualified themselves from his trial.
Suppose a President is impeached by the House and acquitted by the Senate. Can the House reintroduce charges -- in other words, impeach him again? The scenario is not as farfetched as it may sound. Perhaps subsequent to the President's acquittal, a new election sweeps in the opposition party and hence brings in more members of Congress inclined to think the President guilty. May the President be impeached and tried again?
The obvious first reaction is no, since a second impeachment would seem to constitute precisely the kind of double jeopardy barred by the Constitution. The Fifth Amendment says no person "shall be subject for the same offense to be twice put in jeopardy of life or limb." Although its literal meaning limits double jeopardy to situations where the potential punishment is death or amputation, the protection against double jeopardy has always been interpreted more broadly to apply wherever any threat of criminal punishment applies. And while there are gray areas in double jeopardy law, absent the most unusual circumstances (such as a showing that the defendant bribed the jury), a defendant acquitted of a crime cannot be tried for that same crime.
However, impeachment is not a criminal trial and removal from office is not criminal punishment. Thus, the Constitution does not directly forbid multiple impeachments for the same offense. Moreover, it explicitly permits criminal prosecution following conviction by the Senate, so apparently impeachment conviction is not regarded as "jeopardy" for Fifth Amendment purposes. Thus, it does not appear that the Constitution bars re-impeachment and a re-trial.
Though this has never occurred, and surely Congress would be hesitant to do it, one can imagine
circumstances where it could well happen. It would probably take more than a new election
changing the composition of the Senate. But suppose that, subsequent to the President's acquittal,
new evidence of his guilt emerges. It may even be that the new evidence shows that the
President's defense in his initial trial was a sham. In the criminal justice system, even in such
circumstances the defendant may not be retried. But Congress would probably not allow a sitting
President to remain in office if it learned that he had committed a grave, clearly impeachable
offense and covered it up through chicanery at his initial trial.
Probably not, for two reasons. First, the Constitution says the President shall be removed from office "On Impeachment for, and Conviction of treason, bribery, or other high crimes and misdemeanors." This clause appears to link the impeachment and conviction, implying that they must be for one and the same thing. Second, to convict the President for something other than what he was charged with would deprive him of the "fair notice" generally deemed essential to due process. In order to fully prepare a defense, the President (or any person charged with wrongdoing) must know precisely what he is accused of doing. If the Senate ends up deciding that he is guilty of something else, he will have lacked the full opportunity to prepare a defense. (By analogy, in the criminal justice system a defendant may not be convicted of something that was not charged in the indictment.) For these reasons, the Senate has in fact always limited itself to the charges brought before it in the Articles of Impeachment.
The reverse question is perhaps more difficult: May the Senate feel free to acquit based on its own definition of high crimes and misdemeanors? One may think the answer is an obvious yes, but in fact the case can be made that the Senate must accept the House's definition of impeachable offense. On this theory, the Senate's sole job is to decide whether the offense was in fact committed. Consider that the House is given sole constitutional power to impeach, and the Senate sole power to try the case. It may be argued that the Framers of the Constitution envisioned a division of labor akin to that of jury and judge -- the judge makes legal determinations and the jury makes factual determinations. In this case, the House makes the legal determination about what constitutes a high crime and misdemeanor, and the Senate makes a factual determination whether such an offense has occurred. On this view, if the House impeaches the President for (for example) cheating on his taxes, the Senate's sole job is to determine whether he did so; Senators are not free to decide for themselves that cheating on taxes does not rise to the level of an impeachable offense.
Ultimately, this argument probably fails. For one thing, the Framers did not envision the jury as a
fact-finding body only. Much evidence suggests that they regarded the jury as free to make legal
determinations as well. Although the judge/jury division of labor eventually developed, it did so
because of a sense that judges had legal expertise that jurors lacked. However, there is no reason
to think that House members are better equipped than Senate members to interpret the
Constitution.
Yes. The Constitution does not limit impeachable offenses to actions taken while in office. And while it might seem unfair to remove someone from office for acts undertaken before assuming office, in certain cases it would clearly be justified. Suppose, for example, it turns out that a President, in a previous stint as a governor, made a regular practice of accepting bribes. (We might further suppose that, in the campaign for President, he emphasized his record of integrity while a governor.) Impeachment would clearly be in order.
In the case of Vice President Spiro Agnew, the conduct that gave rise to his resignation from office occurred while he was a governor. He likely would have been impeached for that conduct had he not resigned. Similarly, the Whitewater land deal that initially led to the investigation of Bill Clinton occurred long before Clinton became President.
However, Congress is obviously free to take a more forgiving attitude toward conduct engaged in
prior to assuming office. That appears to have been one reason the House Judiciary Committee
recommended against the impeachment of Vice President Schuyler Colfax in 1873. (Colfax was
involved in a bribery scandal prior to becoming vice president.) Likewise, Congress resisted calls
for the impeachment of Supreme Court Justice Hugo Black when it came to light that, in his
youth, Black was a member of the Ku Klux Klan. To date no one has been impeached for
behavior that occurred before he assumed federal office.
The Senate Rules on Impeachment stipulate that "at all times while the Senate is sitting upon the trial of an impeachment the doors of the Senate shall be kept open, unless the Senate shall direct the doors to be closed while deliberating upon its decisions." However, what if the Senate decided to change these rules, to conduct not just the deliberations but the entire trial behind closed doors? Does the Constitution forbid such an action? The Sixth Amendment to the Constitution gives the defendant in a criminal trial the right to a public trial, but it does not say that this right carries over to trials of impeachment. Moreover, what if the President agreed to have his trial conducted in private?
Although there is no clear basis in law forbidding such an action, surely it would violate what is sometimes called the public's "right to know." Few matters in government could be more inherently public than the effort to remove the President. The public surely has the right to know whether their representatives act responsibly in impeaching and convicting (or declining to impeach and convict) their President. And the likelihood that they will act responsibly is increased if they act in full view of their constituents.
In accordance with the rule quoted above, the Senate has generally conducted its deliberations in private. This may seem like a violation of the public's right to know. The deliberation process could be a crucial part of the decision to convict or acquit. Moreover, unless senators opt to provide written explanations for their vote, their deliberations provide the best sense of why they voted as they did.
Nevertheless, secrecy in deliberations is probably constitutionally safe. By analogy, jury
deliberations have always been held in secret -- indeed, their secrecy is zealously guarded by the
courts. Although there is a public interest in seeing such deliberations, it is outweighed by concern
that fully candid discussions would be compromised if deliberations were public.
Like trials in the criminal and civil justice system, this varies tremendously -- from a single day, in cases where the evidence is straightforward, to several months, where the evidence is complex. It may be, for example, that the President's behavior is agreed to by all parties, and the only question is whether it constitutes an impeachable offense. In such a case, all that is needed is argument by each side, followed by deliberations; no witnesses or document production are necessary. By contrast, a case may involve a complex factual scenario that requires sifting volumes of evidence and calling scores of witnesses.
However, for a variety of reasons impeachment trials do not last as long as the lengthier trials in
the justice system (which occasionally take more than a year). For one thing, most senators as
well as the target of the impeachment usually wish to get the episode behind them. And the trial is
not bound by the complex codes of evidence and procedure that can hinder a civil or criminal trial.
This, too, is not directly addressed in the Constitution. However, the prevailing view (subject to some disagreement among legal scholars) is that a conviction or acquittal by the Senate is final: Neither the Supreme Court nor any lower court may review or reverse it. That view has not been absolute. Indeed, in 1992 a district court judge reviewed and reversed a Senate decision to convict Judge Alcee Hastings. However, the following year, in the case of Judge Walter Nixon (no relation to the former President), the Supreme Court declined Nixon's request to reverse his conviction by the Senate, stating that the matter was a "political question" not suitable for the courts. (By virtue of the Supreme Court decision, Hastings' conviction was reinstated -- the district court judge had no business reviewing the conviction in the first place.)
If courts were allowed to review and reverse convictions of Presidents, extraordinary situations could develop. First, during the pendency of the President's appeal, it would be unclear who was President. And if he won on appeal, the country would have as President someone who had been impeached by one branch of Congress and convicted by another, then returned to office by an unelected branch. It is hard to imagine a functioning presidency in these circumstances, and most legal scholars applaud the decision of the Supreme Court clarifying that the Senate has the final word on impeachments.
There is also evidence that the Framers would have approved this Court decision, that they did not intend judicial review of impeachment trials. They gave serious consideration to having impeachment trials conducted and resolved by the Supreme Court, but ended up deciding that the Senate was the more appropriate body. That indicates a conscious decision not to have impeachment decided by the Court, and in the course of the shift they gave no indication that the Court would retain the power to review the Senate's decision.
Some may argue that the absence of judicial review creates a potential problem of great magnitude: What if the Senate acts unconstitutionally? Isn't the judiciary the branch of government that interprets the Constitution? If so, how can the constitutional process of impeachment be immune from court review?
But this perspective rests on the misconception that judges are the only government officials who
interpret the Constitution. All government officials take an oath to uphold the Constitution, and
therefore all must interpret the Constitution in order to act in conformity to it. (Indeed, the
Constitution requires senators to take a special oath prior to trying impeachments.) They may get
it wrong, just as the Court may, but they are equally bound to apply the Constitution. Thus, for
example, if a President thinks a certain criminal statute is unconstitutional, he may (arguably must)
pardon people convicted under that law -- even if the Supreme Court has upheld the law in
question. The President makes an independent judgment call. So do the Senators in an
impeachment trial.
Only the 25th amendment, which enables the President to step aside, or be forced temporarily to step aside (by the Vice President and a majority of the cabinet) if he is "unable to discharge the powers and duties of his office." This amendment, adopted in 1967, was designed for a situation of mental or physical infirmity, as opposed to misconduct. Nevertheless, it could be invoked voluntarily by a President in the context of impeachment. It might be that, in order to devote his attention to his defense at trial, and to reassure the nation that doing so would not jeopardize the national interest, he would invoke the Twenty-Fifth Amendment and turn over the presidency to the Vice President on an interim basis, with the President to return in the event of acquittal. This may seem unwieldly, but a temporary hand-off is precisely what the Twenty-Fifth Amendment anticipates.
It is worth noting that the possibility of removing a federal officer other than through the
impeachment process has an additional wrinkle where federal judges are concerned. The
Constitution says that they "shall hold their Offices during good Behavior." Some argue that this
clause offers a new standard for the conduct of judges, implying that they may be removed
(presumably through some process other than impeachment) for any "bad behavior," even that
which falls short of impeachable offenses. However, the prevailing view is that the "good
behavior" clause may simply be a way of saying that judges (alone among government officials)
enjoy lifetime tenure -- unless impeached.
The Constitution does not mention any. However, Congress arguably may prescribe lesser punishments. Two that have been prominently mentioned as possibilities in the Bill Clinton case are censure and a monetary fine. Censure involves an official reprimand by the Congress. Some argue that if Congress censured the President without conducting a trial, it would unconstitutionally deprive him of the opportunity to defend himself -- thereby denying the fundamental right to due process. However, insofar as the censure produces no tangible penalty, this objection seems shaky. Congress often passes joint resolutions which essentially do no more than express its feeling about something. Surely, it could do the same about the President.
In fact, it has done so. In 1834, the Senate, led by the famed trio Henry Clay, John C. Calhoun, and Daniel Webster, passed a resolution censuring Andrew Jackson for withdrawing government deposits from the national bank without explanation. The resolution, which passed by a vote of 26 to 20, stated that Jackson "has assumed upon himself authority and power not conferred by the Constitution and laws, but in derogation of both." Three years later, the Senate repealed the resolution, expunging it from the record, by a vote of 24-19.
But what if Congress imposes a penalty, such as a fine (or reduced pension privileges) in lieu of removal from office? Again, if Congress takes such action without a trial, the President seems denied due process. But suppose the House impeaches, and the Senate tries and finds the President guilty, but the Senate chooses a lesser penalty than removal from office? The argument that such action is permitted is the familiar maxim that a greater power must include a lesser -- if the Senate can remove the President, shouldn't it be able to take action that he would find more congenial? Not necessarily. Just as some laws mandate a certain punishment for a certain crime (where the legislature has decided that it wants no exceptions), so too can the Constitution (where those who framed and ratified it decided the same thing). And as we have seen, the Constitution provides that on conviction by the Senate the President "shall" be impeached -- the language suggests that this penalty is mandatory. It appears that the Senate faces an all-or-nothing proposition -- remove the President or leave him alone. (This does not necessarily work to the President's disadvantage. It may be that, faced with the all-or-nothing choice, the Senate would acquit, believing that the charges do not justify removal, but would impose less severe alternatives if they were available.)
During the debate over the possible impeachment of Bill Clinton, it has been asserted by some that impeachment is a political process, and vehemently countered by others that it is really a judicial process. The answer depends how you look at it. On the one hand, the power to impeach and convict lies solely in the hands of a political branch -- elected officials who can and often do base their actions on politicial considerations. On the other hand, it is (and always has been) expected that Congress will act in a responsible manner conforming to the constitutional standard. The Constitution does not say that impeachment and conviction are solely at the discretion of the Congress -- rather it lays down the standards to be used.
Moreover, the Constitution requires that in the trial of impeachments senators shall "be on Oath or Affirmation." The precise oath that has been administered is "to do impartial justice according to the Constitution and laws." Also, the fact that the Chief Justice presides over the President's trial lends support to the idea of it as a judicial proceeding, not a political event. Of course, the primary purpose of the Chief Justice presiding is that the Vice President would face a conflict of interest. Nevertheless, the Chief Justice's presence lends a sense of the trial as a judicial process.
In short, the trial of impeachment may inevitably involve political considerations, insofar as the
outcome is determined by politicians (who read their mail and are ever-fearful of voters). And, in
some impeachments (including the two most famous -- President Andrew Johnson and Supreme
Court Justice Samuel Chase), votes have broken down largely along party lines. However, it is
clearly expected that senators treat the matter with the solemnity of a trial and act as judiciously
and impartially as possible.
This procedure, like many of the details in the Constitution, is borrowed from the British, who always had impeachment by the House of Commons and conviction by the House of Lords. It is consistent with the goal of our Founding Fathers of dispersing power. Neither the House nor Senate, alone, can remove a President. As Alexander Hamilton put it (in the Federalist Papers), "assigning to one [branch of Congress] the right of accusing, to the other the right of judging, avoids the inconvenience of making the same persons both accusers and judges; and guards against the dangers of persecution" if either branch were dominated by enemies of the President. This arrangement is also consistent with the way people are prosecuted in the criminal justice system -- indictment by a grand jury followed by a trial before a separate jury.
But if the two-tiered arrangement has an obvious logic to it, the decision to have impeachments tried by the Senate does not. This is, after all, a body with no experience trying cases. Here's Hamilton's explanation (again in the Federalist Papers) for the Framers'choice in this regard: "Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel confident enough in its own situation to preserve, unawed and uninfluenced, the necessary impartiality between an individual and accused, and the representatives of the people, his accusers?"
The independence and confidence Hamilton refers to stems from senators' six-year terms in office. Unlike the House, expected to be closer to the will of the people by virtue of facing the voters every two years, senators are permitted a greater degree of detachment. They were expected to be a more mature, deliberative body. However, at the time the Federalist Papers were written, there were no political parties. The risk of partisanship in the Senate, at least along party lines, was not a problem.
Of course, the most secure and independent government officials are judges, who enjoy lifetime tenure. Moreover, judges obviously have experience conducting legal proceedings. In part for these reasons, the Framers initially proposed that impeachment trials would be before the Supreme Court. Why did they end up changing it to the Senate? Hamilton gives several explanations. The removal of a President is obviously an extemely delicate matter, likely to be controversial, and the public may be more likely to accept such a decision from its elected representatives. Also, there is strength in numbers. Just as criminal defendants have the right to be tried by a jury of 12, rather than a judge of one, so too a President's fate perhaps ought not be decided by a body as small as the Supreme Court. Also, since the President can be prosecuted in the criminal justice system even after removal from office, and the courts -- including, potentially, the Supreme Court -- would be involved in that matter, it might be unfair to have that same body decide his trial of impeachment.
Yet Hamilton seems to recognize that trial by the Senate is problematic. One obvious objection is
that senators, albeit more insulated than House members, still must face the voters. That has its
merits, but could compromise impartiality. Another potential problem is that many senators will
know the President and be his personal as well as professional allies or antagonists. (When
Andrew Johnson was tried by the Senate in 1868, his son-in-law was in the Senate and cast a
ballot!) As we saw earlier, senators may be involved in the events that give rise to the
impeachment, and could even end up witnesses in the case. However, Hamilton argues somewhat
defensively, "Where is the standard of perfection to be found?"
As noted earlier, the impeachment process begins when anyone requests an investigation of official misconduct. There are also, by statute, a few special ways in which an investigation can be initiated. One, the Independent Counsel Act, triggered the impeachment investigation of Bill Clinton.
The Constitution makes no mention of a special prosecutor. However, during the Watergate scandal, the view arose that a Justice Department (led by an attorney general appointed by, and often a friend or political associate of, the President) cannot be trusted to conduct an independent investigation of alleged offenses within the executive branch. Congress passed a statute providing for the appointment of a special prosecutor in certain circumstances. Although the statute was challenged on constitutional grounds, the Supreme Court upheld it. As amended, the statute provides that information gathered by the special prosecutor may be forwarded to the House for consideration of possible impeachment.
Judge Kenneth Starr is such an independent counsel, appointed by a three-judge panel in
accordance with the statute, after Attorney General Janet Reno decided that the statutory
circumstances warranting appointment of a special prosecutor were present. The Starr Report
passed along to Congress the information gathered during his investigation, for consideration of
impeachment of President Clinton.
Only one, Andrew Johnson. The ostensible basis for impeachment was his violation of a statute. Historians believe that the real motive behind Johnson's impeachment was political.
Johnson became president in 1865, upon the assassination of Abraham Lincoln. The Civil War had ended days before, and the great task facing the country was the "reconstruction" of the South. The Radical Republicans who controlled Congress favored imposing strict conditions (such as allowing blacks to vote) for states to rejoin the Union. President Johnson resisted these efforts. A political tug of war ensued.
In 1867, Congress passed the Tenure of Office Act, which forbade the President from removing certain government officials whose appointment required Senate confirmation. (Congress went so far as to specify that violation of this provision was a "high misdemeanor.") The idea was to keep Johnson saddled with holdovers from Lincoln's cabinet who favored aggressive reconstruction efforts. One such person was Secretary of War Edwin Stanton. When Johnson dismissed Stanton, the House voted to impeach.
Eleven articles of impeachment were adopted. Almost all of them dealt with Johnson's dismissal of Stanton, though one was based on disparaging remarks Johnson had made about certain members of Congress and Congress as a body. In the end, the Senate voted on three of the articles related to the Stanton discharge. The vote on all three was 35 for conviction and 19 for acquittal -- one short of the two thirds needed to convict. Seeing the writing on the wall, the Senate then voted to disband the proceedings rather than vote on the other articles.
The acquittal of Johnson was almost certainly the proper result. Since he believed the Tenure of Office Act to be unconstitutional, he had the right to disobey -- the matter should have ended up with the courts, the usual arbiter of such disputes, not in a court of impeachment. (Indeed, years later the Supreme Court struck down the Tenure of Office Act as unconstitutional.) The fact that the House also voted to impeach Johnson for hostile remarks reveals the political nature of their effort to oust him -- to punish the President for criticizing Congress is a violation of the First Amendment's protection of free speech, not a legitimate use of the impeachment process.
Although Andrew Johnson is the only President to have been impeached, several others were threatened with impeachment. John Tyler, who became president when William Henry Harrison died one month into his term, was disliked by members of his own party from the beginning. When he vetoed various bills, especially one to revive the national bank, prominent politicians ranging from Senator Henry Clay to former President John Quincy Adams (then a member of the House) called for his impeachment. The House offered a resolution to impeach Tyler in 1843, based on weak charges (such as "withholding his assent to laws indispensable to the just operations of government" and a campaign of falsehood that "led to idle legislation and useless public expense") that amounted to the notion that he was a bad President. The resolution was defeated 127- 83.
There were other similarly futile exercises to use the impeachment procedure to remove an unpopular President, as when a congressmen offered a motion to impeach Herbert Hoover on 26 grounds. The motion was tabled by a vote of 361-8, then 344-11.
Far more serious impeachment proceedings led Richard Nixon to resign in 1974. The House Judiciary Committee recommended three articles of impeachment to the entire House. Before the House had the opportunity to vote (it was a foregone conclusion that they would impeach, and appeared overwhelmingly likely that the Senate would convict), Nixon resigned from office.
Nixon's impeachment stemmed initially from actions related to a burglary in the Watergate Hotel, an effort by his subordinates to break into the office of the Democratic National Headquarters. While there is no evidence that Nixon ordered or even knew about the break-in in advance, there was ample evidence that he participated in a cover-up. This cover-up involved, among other things, pressuring the CIA to interfere with the FBI's investigation.
The House Judiciary Committee recommended impeachment for obstruction of justice. A second article of impeachment involved violating his duty to execute the laws, by misusing the Internal Revenue Service and other government agencies, in part to harass his political enemies. The third article of impeachment involved his refusal to comply with congressional subpoenas as Congress sought information pertaining to impeachment. The committee rejected proposed articles of impeachment dealing with the secret bombing of Cambodia and the filing of improper tax returns and expenditures of public funds to enhance the value of personal property.
No vice presidents have ever been impeached, though scandal has surrounded several. Aaron Burr
was indicted for murder for shooting Alexander Hamilton in a duel, but he was not impeached.
(Indeed, he went on to preside over the impeachment trial of Supreme Court Justice Samuel
Chase.) Schuyler Colfax, Ulysses S. Grant's Vice President, was implicated in a bribery scandal,
leading to an impeachment resolution in the House. The resolution fell short, perhaps in part
because only a few weeks remained in his term and also because the bribe occurred before Colfax
was vice president. And Nixon's first vice president, Spiro T. Agnew, resigned in 1973 and
pleaded "No Contest" to charges of bribery and tax evasion stemming from his days as Governor
of Maryland.
Mostly judges. There have been 58 impeachment investigations of judges, resulting in 13 impeachments, 11 trials (two judges resigned prior to trial), and seven convictions. Three of these convictions occurred during the 1980s. The misconduct of the convicted judges has included incitement to rebel against the nation, bribery, conspiracy to solicit a bribe, accepting kickbacks, tax evasions, and perjury.
In one of the earliest cases, in 1805, a Supreme Court Justice was impeached. Justice Samuel Chase, a Federalist despised by Thomas Jefferson and the Republicans, was impeached for showing political bias in his conduct of trials. Defended in his trial before the Senate by the brilliant if not always sober Luther Martin (a delegate to the Constitutional Convention), Chase narrowly escaped conviction. Five years later, Martin appeared as counsel before Chase in a federal case. As legend has it, Chase, whose caustic remarks from the bench played a role in his impeachment, said to Martin, "I am surprised that you can so prostitute your talents." Martin responded, "Sir I never prostituted my talents except when I defended you and Colonel [Aaron] Burr." Martin looked at the jury and added, "A couple of the greatest rascals in the world."
The impeachment of judges has produced a number of oddities. John Pickering, the first judge ever impeached (for, among other things, drunkenness and profanity during a trial), did not attend the trial to defend himself. His son appeared, and essentially offered an insanity defense on his father's behalf. Pickering was convicted and removed from office.
One of most recent judges to be impeached and convicted, District Court Judge Alcee Hastings, was subsequently elected to the United States House of Representatives -- joining as colleagues the people who impeached him!
Why have most impeachments involved judges, as opposed to presidents or vice presidents?
There are probably two explanations. First, there are far more judges than presidents or vice
presidents. Of course, that does not explain why virtually no other civil officers (such as cabinet
members) have been impeached. But judges are the only federal officials with lifetime tenure. In
other words, the only way to remove a judge is to impeach him. Most other civil officers can be
fired by the President, and the President and Vice President can be sent home by the voters. If
they're in their second term, the country can wait out their term.
This Guide aims to provide a quick and easy introduction to the history and most important issues surrounding impeachment. The reader interested in more information and more in-depth analysis is referred to the following excellent works:
Raoul Berger, Impeachment: The Constitutional Problems (Harvard University Press, 1973)
Charles Black, Impeachment: A Handbook (Yale University Press, 1974)
Committee On The Judiciary (Rodino Report), Impeachment (1973)
Michael Gerhardt, The Federal Impeachment Process (Princeton University Press, 1996)
John Labovitz, Presidential Impeachment (Yale University Press, 1978)
As the saga surrounding President Clinton unfolds, key differences between this situation and the impeachments of Andrew Johnson and Richard Nixon must be emphasized. However much the effort to remove Clinton has divided America, and deflected attention from other important government business, the country is in less troubled waters than it was in either 1868 or 1974.
Clinton supporters believe this impeachment process to be politically partisan. Whatever the merits of this claim, the Andrew Johnson situation was clearly worse. While President Clinton arguably did nothing rising to the level of an impeachable offense, he undeniably behaved badly and may have broken the law. By contrast, a strong argument can be made that Johnson did nothing out of bounds. Also, the removal of Clinton would result in the presidency of Al Gore, Clinton's faithful ally who was elected as his running-mate and shares his views on most issues. By contrast, the removal of Johnson would have resulted in President Ben Wade, a member of the opposing party determined to change the course of national policy. Whatever one thinks of the move to impeach Bill Clinton, it hardly poses the kind of crisis the country faced in 1868, which involved a clear congressional abuse of the constitutional process for political purposes.
If the Johnson impeachment was less defensible and more dangerous to the nation than a Clinton impeachment, in 1974 the situation was the reverse. As virtually everyone (Republican and Democrat, conservative and liberal) acknowledges, Richard Nixon's conduct clearly constituted "high crimes and misdemeanors" requiring his removal from office. Nixon's removal had less the flavor of a political victory than an affirmation of the rule of law.
In hindsight it seems clear that it would have been wholly improper either to remove Andrew Johnson from office or permit Richard Nixon to remain. On the spectrum of corruption, Bill Clinton's behavior lies somewhere between Johnson's and Nixon's. Insofar as Clinton has clearly misbehaved and deliberately deceived the American people, the effort to remove him differs significantly from the indefensible effort to remove Johnson. But insofar as his
misdeeds do not approach Nixon's as an assault on the legitimacy of government, the effort to remove Clinton lacks the gravity of the plainly justified removal of Nixon.
Precisely because this situation is murkier and more nuanced than the two major impeachment episodes in American presidential history, we need to be especially careful. There have already been notable lapses. For example, Senate majority leader Trent Lott declared that "bad behavior" is sufficient grounds to impeach a President, a view unsupported by the text and history of the Constitution, and one that would convert an important constitutional remedy into a political football. Those who do not learn from the mistakes of history are indeed condemned to repeat them.
By providing this background and overview of impeachment, perhaps this Guide will play a role in preventing the repetition of historical mistakes. At a minimum, it should enable readers to follow the proceedings with more knowledge, and to evaluate them with more discernment. Citizens owe it to themselves, and one another, to be educated about the affairs of government, especially when the stakes are this high.
Alan Hirsch, a freelance writer and constitutional scholar, received a B.A. from Amherst College and a J.D. from Yale Law School. He has written several books, and has been published extensively in both mainstream and academic journals. He is the author, most recently, of For the People: What The Constitution Really Says About Your Rights (Free Press, 1998) (coauthored with Akhil Amar).
He lives in Oneonta, New York, with his wife and three children. Hirsch is an adjunct professor at
Hartwick college; and the author of Talking Heads: Political Talk Shows and Their Star Pundits
(St. Martin's, 1991).
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Copyright 1998 by Essential Books
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