Federal Impeachment In The United States

Impeachment in the United States is the process by which the House of Representatives brings charges against a civil federal officer, the vice president, or the president for misconduct alleged to have been committed. The United States House of Representatives can impeach a party with a simple majority of the House members present or such other criteria as the House adopts in accordance with Article One, Section 2, Clause 5 of the United States Constitution. Most state legislatures can impeach state officials, including the governor, in accordance with their respective state constitution.

Most impeachments have concerned alleged crimes committed while in office, though there is no requirement for the misconduct to be an indictable crime. There have been a few cases in which officials have been impeached and subsequently convicted for crimes committed prior to taking office. An earlier version from 2005 is at https://www.senate.gov/reference/resources/pdf/98-806.pdf . There have also been cases where a former official was tried after leaving office. The impeached official may continue to serve their term until a trial yields a judgement that directs their removal from office or until they leave office through some other means. Federally, a two-thirds majority of the senators present at the trial is required for conviction under Article One, Section 3, Clause 6 of the Constitution.

The impeachment proceedings are remedial rather than punitive in nature, and the remedy is limited to removal from office. Because all officers in the federal government are confirmed in the Senate, officers appointed under the Appointments Clause of the Constitution may also be disqualified from holding any other appointed office under the United States in the future. Because the process is not punitive, a party may also be subject to criminal or civil trial, prosecution, and conviction under the law after removal from office. Also because the conviction is not a punishment, the president is constitutionally precluded from granting a pardon to impeached and convicted persons.

Federal impeachment

Constitutional provisions

Article I, Section 2, Clause 5 of the United States Constitution provides:

Article I, Section 3, Clauses 6 and 7 provide:

Article II, Section 2 provides:

Article II, Section 4 provides:

Impeachable offenses

The Constitution limits grounds of impeachment to "Treason, Bribery, or other high Crimes and Misdemeanors", but does not itself define "high crimes and misdemeanors".

Types of conduct

Congressional materials have cautioned that the grounds for impeachment "do not all fit neatly and logically into categories" because the remedy of impeachment is intended to "reach a broad variety of conduct by officers that is both serious and incompatible with the duties of the office".Staff of the Impeachment Inquiry, Committee on the Judiciary, House of Representatives, ''Constitutional Grounds for Presidential Impeachment'', 93rd Conf. 2nd Sess. (Feb. 1974)
1974 Impeachment Inquiry Report
/ref> Congress has identified three general types of conduct that constitute grounds for impeachment, although these categories should not be understood as exhaustive:

# improperly exceeding or abusing the powers of the office;
# behavior incompatible with the function and purpose of the office; and
# misusing the office for an improper purpose or for personal gain.

High crimes and misdemeanors

"High crimes and misdemeanors", in the legal and common parlance of England in the 17th and 18th centuries, is corrupt activity by those who have special duties that are not shared with common persons. Toward the end of the 18th century, "high crimes and misdemeanors" acquired a more technical meaning. As Blackstone says in his '' Commentaries'': "The first and principal high misdemeanor ... was mal-administration of such high offices as are in public trust and employment."

The phrase "high crimes and misdemeanors" was a common phrase when the U.S. Constitution was written and did not require any stringent or difficult criteria for determining guilt, but meant the opposite. The crimes are called "high crimes" because they are carried out by a person in a position of public authority, or by misusing the position of public authority they have been given. It does not mean that the crimes themselves are unusual or "higher" types of crime. The phrase was historically used to cover a very broad range of crimes. In 1974 the Senate's Judiciary Committee's stated that High Crimes and Misdemeanors' has traditionally been considered a 'term of art', like such other constitutional phrases as 'levying war' and 'due process'."

Several commentators have suggested that Congress alone may decide for itself what constitutes a "high Crime or Misdemeanor", especially since the Supreme Court decided in ''Nixon v. United States'' that it did not have the authority to determine whether the Senate properly "tried" a defendant. In 1970, then- House Minority Leader Gerald R. Ford defined the criterion as he saw it: "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history."

Historical examples

Of the 21 impeachments voted by the House:

* No official has been charged with treason.
* Three officials have been charged with bribery:
**Robert W. Archbald – tried, removed
**Alcee Hastings – tried, removed
** William W. Belknap – resigned prior to impeachment, later acquitted
* The remaining charges against all the other officials fall under the category of "high Crimes and Misdemeanors".

Standard of proof

The standard of proof required for impeachment and conviction is also left to the discretion of individual representatives and senators, respectively. Defendants have argued that impeachment trials are in the nature of criminal proceedings, with convictions carrying grave consequences for the accused, and that therefore proof beyond a reasonable doubt should be the applicable standard. House Managers have argued that a lower standard would be appropriate to better serve the purpose of defending the community against abuse of power, since the defendant does not risk forfeiture of life, liberty, or property, for which the reasonable doubt standard was set.

Criminal vs non-criminal activity

In drawing up articles of impeachment, the House has placed little emphasis on criminal conduct. Less than one-third of the articles that the House have adopted have explicitly charged the violation of a criminal statute or used the word "criminal" or "crime" to describe the conduct alleged. Officials have been impeached and removed for drunkenness, biased decision-making, or inducing parties to enter financial transactions, none of which is specifically criminal. Two of the articles against President Andrew Johnson were based on rude speech that reflected badly on the office: President Johnson had made "harangues" criticizing the Congress and questioning its legislative authority, refusing to follow laws, and diverting funds allocated in an army appropriations act, each of which brought the presidency "into contempt, ridicule, and disgrace". A number of individuals have been impeached for behavior incompatible with the nature of the office they hold. Some impeachments have addressed, at least in part, conduct before the individuals assumed their positions: for example, Article IV against Judge Thomas Porteous related to false statements to the FBI and Senate in connection with his nomination and confirmation to the court.

Conversely, not all criminal conduct is arguably impeachable: in 1974, the Judiciary Committee rejected an article of impeachment against President Nixon alleging that he committed tax fraud, primarily because that "related to the President's private conduct, not to an abuse of his authority as President".

Who can be impeached

The Constitution gives Congress the authority to impeach and remove "The President, Vice President, and all civil Officers of the United States" upon a determination that such officers have engaged in treason, bribery, or other high crimes and misdemeanors. The Constitution does not articulate who qualifies as a "civil officer of the United States".

Federal judges are subject to impeachment. In fact, 15 of 20 officers impeached, and all eight officers removed after Senate trial, have been judges. The most recent impeachment effort against a Supreme Court justice that resulted in a House of Representatives investigation was against Associate Justice William O. Douglas. In 1970, Representative Gerald R. Ford (R-MI), who was then House minority leader, called for the House to impeach Douglas. However, a House investigation led by Congressman Emanuel Celler (D-NY) determined that Ford's allegations were baseless. According to Professor Joshua E. Kastenberg at the University of New Mexico, School of Law, Ford and Nixon sought to force Douglas off the Court in order to cement the "Southern strategy" as well as to provide cover for the invasion of Cambodia.

Within the executive branch, any presidentially appointed "principal officer", including a head of an agency such as a Secretary, Administrator, or Commissioner, is a "civil officer of the United States" subject to impeachment. At the opposite end of the spectrum, lesser functionaries, such as federal civil service employees, do not exercise "significant authority", and are not appointed by the president or an agency head. These employees do not appear to be subject to impeachment, though that may be a matter of allocation of House floor debate time by the Speaker, rather than a matter of law.

The Senate has concluded that members of Congress (representatives and senators) are not "civil officers" for purposes of impeachment.''Senate Journal'', 5th Congress, 3rd Session, December 17, 1798 to January 10, 1799. As a practical matter, expulsion is effected by the simpler procedures of Article I, Section 5, which provides "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members... Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member" (see List of United States senators expelled or censured and List of United States representatives expelled, censured, or reprimanded). This allows each House to expel its own members without involving the other chamber. In 1797, the House of Representatives impeached Senator William Blount of Tennessee. The Senate expelled Senator Blount under Article I, Section 5, on the same day. However, the impeachment proceeding remained pending (expulsion only removes the individual from office, but conviction after impeachment may also bar the individual from holding future office, so the question of further punishment remained to be decided). After four days of debate, the Senate concluded that a Senator is not a "civil officer of the United States" for purposes of the Impeachment Clause, and dismissed for lack of jurisdiction. The House has not impeached a Member of Congress since.

The constitutional text is silent on whether an officer can be tried after the officer resigns or his/her term ends. However, when the issue has arisen, the House has been willing to impeach after resignation, and the Senate has been willing to try the official after resignation. As noted, in 1797, the Senate continued impeachment proceedings against William Blount even after he had been expelled from office, dismissing the proceedings only after determining that a Senator is not a "civil officer of the United States". In 1876, William W. Belknap was impeached by the House of Representatives hours after resigning as United States Secretary of War. The Senate held by a 37–29 vote that it had jurisdiction to try Belknap notwithstanding his resignation, but ultimately acquitted him after trial. The permissibility of trying a former official was a major issue in the second impeachment trial of Donald Trump, which commenced 20 days after Trump's term in office expired, although Trump's impeachment itself occurred while he was President. By a 55–45 vote, the Senate rejected a motion asserting that the trial was unconstitutional.

The Constitution does not limit the number of times an individual may be impeached. As of 2022, Donald Trump is the only federal officer to have been impeached more than once.

Procedure

At the federal level, the impeachment process is typically a three-step procedure. The first phase is typically an impeachment inquiry, though this is not a required stage.''Impeachment and Removal''
, Congressional Research Service, October 29, 2015 The two stages constitutionally required for removal are impeachment by the House of Representatives and trial by the United States Senate.

* First, the House investigates through an impeachment inquiry.
* Second, the House of Representatives must pass, by a simple majority of those present and voting, articles of impeachment, which constitute the formal allegation or allegations. Upon passage, the defendant has been "impeached".
* Third, the Senate tries the accused. In the case of the impeachment of a president, the chief justice of the United States presides over the proceedings. For the impeachment of any other official, the Constitution is silent on who shall preside, suggesting that this role falls to the Senate's usual presiding officer, the president of the Senate, who is also the vice president of the United States. Conviction in the Senate requires the concurrence of a two-thirds supermajority of those present. The result of conviction is removal from office and (optionally, in a separate vote) disqualification from holding any federal office in the future, which requires a concurrence of only a majority

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