The President, Vice President and all civil Officers of the
United States, shall be removed from Office on Impeachment for, and
Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Article II, Section 4
Impeachment is the constitutionally specified means by which an
official of the executive or judicial branch may be removed from office
for misconduct. There has been considerable controversy about what
constitutes an impeachable offense. At the Constitutional Convention,
the delegates early on voted for "mal-practice and neglect of duty" as
grounds for impeachment, but the Committee of Detail narrowed the basis
to treason, bribery, and corruption, then deleting the last point.
George Mason, who wanted the grounds much broader and similar to the
earlier formulation, suggested "maladministration," but James Madison
pointed out that this would destroy the President's independence and
make him dependent on the Senate. Mason then suggested "high Crimes and
Misdemeanors," which the Convention accepted.
Because "high Crimes
and Misdemeanors" was a term of art used in English impeachments, a
plausible reading supported by many scholars is that the grounds for
impeachment can be not only the defined crimes of treason and bribery,
but also other criminal or even noncriminal behavior amounting to a
serious dereliction of duty. That interpretation is disputed, but it is
agreed by virtually all that the impeachment remedy was to be used in
only the most extreme situations, a position confirmed by the relatively
few instances in which Congress has used the device.
The word
"impeachment" is popularly used to indicate both the bringing of charges
in the House and the Senate vote on removal from office. In the
Constitution, however, the term refers only to the former. At the
Convention, the delegates experimented with differing impeachment
proceedings. As finally agreed, a majority vote of the House of
Representatives is required to bring impeachment charges (Article I,
Section 2, Clause 5), which are then tried before the Senate (Article I,
Section 3, Clause 6). Two-thirds of the Senate must vote to convict
before an official can be removed. The President may not pardon a person
who has been impeached (Article II, Section 2, Clause 1). If an
official is impeached by the House and convicted by the requisite vote
in the Senate, then Article I, Section 3, Clause 7, provides that the
person convicted is further barred from any "Office of honor, Trust or
Profit under the United States." The convicted official also loses any
possible federal pensions. With a few exceptions, those impeached and
removed have generally faded into obscurity.
In
The Federalist
No. 64, John Jay argued that the threat of impeachment would encourage
executive officers to perform their duties with honor, and, used as a
last resort, impeachment itself would be effective to remove those who
betray the interests of their country. Like the limitations on the
offense of treason, the Framers placed particular grounds of impeachment
in the Constitution because they wished to prevent impeachment from
becoming a politicized offense, as it had been in England. Nonetheless,
Alexander Hamilton, in
The Federalist No. 65, also warned that
during impeachment proceedings, it would be difficult for Congress to
act solely in the interests of the nation and resist political pressure
to remove a popular official. The Framers believed that the Senate,
elected by the state legislatures, would have the requisite independence
needed to try impeachments. The Framers also mandated a supermajority
requirement to militate against impeachments brought by the House for
purely political reasons.
There have been several impeachment
proceedings initiated since the adoption of the Constitution,
principally against judges in the lower federal courts. The most
important impeachments were those brought against United States
Associate Justice Samuel Chase in 1805, against President Andrew Johnson
in 1867, and against President William Jefferson Clinton in 1999. None
of these three resulted in removal from office, and all three stand for
the principle that impeachment should not be perceived as a device
simply to remove a political opponent. In that regard, the caution of
the Framers has been fulfilled.
President George Washington
appointed Samuel Chase to the Supreme Court in 1796. Washington had been
warned of Chase's mercurial behavior, but Chase had written the
President that, if he were appointed, he would do nothing to embarrass
the administration. In his early years on the Court, Chase kept his
pledge and did render some fine decisions clarifying the powers of the
federal government. In the election of 1800, however, when Thomas
Jefferson ran against Washington's Vice President and successor John
Adams, Chase earned the ire of Jefferson's emerging Republican party.
For one thing, Chase actively took to the hustings to campaign for Adams
(a move rare for sitting judges even then). What finally brought
President Jefferson to approve of efforts by his party's representatives
in Congress to remove the judge was a grand-jury charge Chase made in
Baltimore in 1803. There Chase lamented the Jeffersonian restructuring
of the federal judiciary in order to abolish the Circuit Court
judgeships that the Adams administration had created, and the Maryland
Jeffersonians' abolishing a state court and establishing universal male
suffrage in Maryland. Chase argued that all of this was plunging the
country into "mobocracy." Chase voiced sentiments common to a wing of
the party of Washington and Adams, but Jefferson and his men believed
that to have a federal judge publicly articulating such views was
harmful to the government, and they moved against Chase. In addition to
citing his behavior in Baltimore, the impeachment charges included
several counts based on Chase's conduct during controversial trials in
1800 against Jeffersonian writers who had been prosecuted under the
Alien and Sedition Act of 1798 (a temporary measure that punished libels
against the government).
The proceeding against Chase was part of
a broader Jeffersonian assault on the judiciary, and it was widely
believed, at least among Federalists, that if it were successful, Chief
Justice John Marshall might be the next target. None of the
specifications brought against Chase charged him with any criminal
conduct, and their thrust seemed to be that his legal rulings were
simply not in accordance with Jeffersonian theory on how trials ought to
be conducted or how juries should function. There was substantial legal
precedent behind each of Chase's rulings, however, and although he may
have been guilty of having a hair-trigger temper, it was also clear that
to permit his removal would seriously, perhaps permanently, compromise
the independence of the judiciary. The requisite two-thirds majority of
Senators could not be cobbled together to remove Chase, and, in fact,
members of Jefferson's own party even voted for acquittal. From that
time to this, the Chase acquittal has been understood to bar the removal
of a Supreme Court Justice on the ground of his political preferences.
Subsequently, there have been several attempts to begin impeachment
proceedings against particular Justices, but none has ever prevailed in
the House.
Andrew Johnson, who succeeded to the presidency
following Abraham Lincoln's assassination in 1865, was impeached because
of his failure to follow procedures specified in federal legislation
(passed over his veto) that prohibited the firing of Cabinet officials
without the permission of Congress. The legislation, known as the Tenure
of Office Act, was arguably unconstitutional because it compromised the
independence of the executive. Nevertheless, the radical Republicans,
who then controlled Congress and who recoiled at President Johnson's
active hostility to their plans to protect the newly freed slaves,
sought to keep the sympathetic members of Abraham Lincoln's Cabinet in
office. When Johnson fired Secretary of War Edwin Stanton, the gauntlet
was thrown down, and impeachment was voted by the House. Though just as
political as the Chase impeachment proceedings, there was some support
for the Tenure of Office Act (Alexander Hamilton, writing in the
The Federalist
No. 77, had suggested that the consent of the Senate would be necessary
"to displace as well as to appoint" officials). As it turned out, the
conviction of Johnson failed in the Senate by only one vote.
The
administration of President William Jefferson Clinton was beset by
assorted scandals, many of which resulted in the appointment of special
federal prosecutors, and several of which resulted in the convictions of
lesser officials. One of the special prosecutors, Kenneth Starr,
recommended to the Congress in 1998 that it consider evidence that the
President had obstructed justice, tampered with witnesses, lied to a
grand jury, and sought to conceal evidence in connection with a civil
proceeding brought against him involving claims of sexual harassment.
President Clinton denied the charges, but the Arkansas federal judge who
presided in that civil proceeding eventually cited and fined Clinton
for contempt based on his untruthful testimony.
A majority of the
Republican-controlled House of Representatives voted in early 1999 to
impeach the President based upon Judge Starr's referral. The House
managers argued that what the President had done was inconsistent with
his sworn duty to take care that the laws of the nation be faithfully
executed. When the matter was tried in the Senate, in February 1999,
however, the President's defenders prevailed, and no more than fifty
Senators (all Republicans) could be found to vote for conviction on any
of the charges.
The only other time a President came close to
being impeached was the case of Richard M. Nixon. He resigned from
office in 1974, after a House Committee had voted to put before the full
House a number of impeachment charges, the most serious of which was
that he had wrongly used the FBI and the CIA in order to conceal
evidence that persons connected to the White House had participated in a
burglary at the Democratic Party's offices at the Watergate apartment
complex. Nixon avoided impeachment, though not disgrace.
There is
no authoritative pronouncement, other than the text of the Constitution
itself, regarding what constitutes an impeachable offense, and what
meaning to accord to the phrase "other high Crimes and Misdemeanors."
When he was a Congressman, Gerald R. Ford advocated the ultimately
unsuccessful impeachment of a Supreme Court Justice by defining an
impeachable offense as anything on which a majority of the House of
Representatives can agree. As impeachment is understood to be a
political question, Ford's statement correctly centers responsibility
for the definition of "high Crimes and Misdemeanors" in the House. The
federal courts have thus far treated appeals from impeachment
convictions to be nonjusticiable.
Nixon v. United States (1993).
Even if the issue of impeachment is nonjusticiable, it does not mean
that there are no appropriate standards that the House should observe.
Some
scholarly commentary at the time of the Nixon impeachment proceedings
argued that the actual commission of a crime was necessary to serve as a
basis for an impeachment proceeding. However, the historical record of
impeachments in England, which furnished the Constitution's Framers with
the term "high Crimes and Misdemeanors," does not support such a
limitation; at that time, the word "Misdemeanors" meant simply
"misdeeds," rather than "petty crimes," as it now does. The issue was
revisited at the time of the Clinton impeachment, when those who sought
to remove the President from office, basing their arguments principally
on the English experience and
The Federalist No. 64, claimed that
a President could be removed for any misconduct that indicated that he
did not possess the requisite honor, integrity, and character to be
trusted to carry out his functions in a manner free from corruption. As
James Iredell (later Associate Justice of the Supreme Court) opined in
the North Carolina ratifying convention, impeachment should be used to
remedy harm "arising from acts of great injury to the community."
On
the other hand, some have argued that a President should not be
impeached unless he has actually engaged in a major abuse of power
flowing from his office as President (although judges, who serve during
"good behavior," have been impeached for conduct occurring outside of
their official duties). In the end, because it is unlikely that a Court
would ever exercise judicial review over impeachment and removal
proceedings, the definitional responsibility to carry them out with
fidelity to the Constitution's text remains that of the House of
Representatives and the Senate.
-
Stephen
B.
Presser
-
Sullivan & Cromwell Professor of Law
-
Northwestern University School of Law