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Article II -- Table of ContentsPrev | Next

Persons Subject to Impeachment

During the debate in the First Congress on the “removal” controversy, it was contended by some members that impeachment was the exclusive way to remove any officer of the Government from his post,750 but Madison and others contended that this position was destructive of sound governmental practice,751 and the view did not prevail. Impeachment, said Madison, was to be used to reach a bad officer sheltered by the President and to remove him “even against the will of the President; so that the declaration in the Constitution was intended as a supplementary security for the good behavior of the public officers.”752 The language of Sec. 4 does not leave any doubt that any officer in the executive branch is subject to the power; it does not appear that military officers are subject to it753 nor that members of Congress can be impeached.754

Judges.—Article III, Sec. 1, specifically provides judges with “good behavior” tenure, but the Constitution nowhere expressly vests the power to remove upon bad behavior; it has been assumed that judges are made subject to the impeachment power through[p.585]being labeled “civil officers.”755 The records in the Convention make this a plausible though not necessary interpretation.756 And, in fact, twelve of the fifteen impeachments reaching trial in the Senate have been directed at federal judges.757 So settled apparently is the interpretation that the major arguments, scholarly and[p.586]political, have concerned the question whether judges, as well as others, are subject to impeachment for conduct which does not constitute an indictable offense and the question whether impeachment is the exclusive removal device with regard to judges.758

Impeachable Offenses

The Convention came to its choice of words describing the grounds for impeachment after much deliberation, but the phrasing derived directly from the English practice. The framers early adopted, on June 2, a provision that the Executive should be removable by impeachment and conviction “of mal–practice or neglect of duty.”759 The Committee of Detail reported as grounds “Treason (or) Bribery or Corruption.”760 And the Committee of Eleven reduced the phrase to “Treason, or bribery.”761 On September 8, Mason objected to this limitation, observing that the term did not encompass all the conduct which should be grounds for removal; he therefore proposed to add “or maladministration” following “bribery.” Upon Madison’s objection that “[s]o vague a term will be equivalent to a tenure during pleasure of the Senate,” Mason suggested “other high crimes and misdemeanors,” which was adopted without further recorded debate.762 The phrase in the context of impeachments has an ancient English history, first turning up in the impeachment of the Earl of Suffolk in 1388.763

[p.587]

Treason is defined in the Constitution;764 bribery is not, but it had a clear common–law meaning and is now well covered by statute.765 High crimes and misdemeanors, however, is an undefined and indefinite phrase, which, in England, had comprehended conduct not constituting indictable offenses.766 In an unrelated action, the Convention had seemed to understand the term “high misdemeanor” to be quite limited in meaning,767 but debate prior to adoption of the phrase768 and comments thereafter in the ratifying conventions769 were to the effect that the President at least, and all the debate was in terms of the President, should be removable by impeachment for commissions or omissions in office which were not criminally cognizable. And in the First Congress’ “removal” debate, Madison maintained that the wanton removal from office of meritorious officers would be an act of maladministration which would render the President subject to impeachment.770 Other comments, especially in the ratifying conventions, tend toward a limitation of the term to criminal, perhaps gross criminal, behavior.771 While conclusions may be drawn from the conflicting statement, it must always be recognized that a respectable case may be made for either view.


Footnotes

750 1 Annals of Cong. 457, 473, 536 (1789).
751 Id., 375, 480, 496–497, 562.
752 Id., 372.
753 3 W. Willoughby, op. cit., n.294, 1448.
754 This point was established by a vote of the Senate holding a plea to this effect good in the impeachment trial of Senator William Blount in 1797. 3 A. Hinds’ Precedents of the House of Representatives of the United States (Washington: 1907), 2294–2318; F. Wharton, State Trials of the United States During the Administrations of Washington and Adams (Philadelphia: 1849), 200–321.
755 See National Comm. on Judicial Discipline & Removal, Report of the National Comm. on Judicial Discipline & Removal (1993), 9–11. The Commission was charged by Congress, P. L. 101–650, 104 Stat. 5124 , with investigating and studying problems and issues relating to discipline and removal of federal judges, to evaluate the advisability of developing alternatives to impeachment, and to report to the three Government Branches. The report and the research papers produced for it contains a wealth of information on the subject.
756 For practically the entire Convention, the plans presented and adopted provided that the Supreme Court was to try impeachments. 1 M. Farrand, op. cit., n.4, 22, 244, 223–224, 231; 2 id., 186. On August 27, it was successfully moved that the provision in the draft of the Committee on Detail giving the Supreme Court jurisdictions of trials of impeachment be postponed, id., 430, 431, which was one of the issues committed to the Committee of Eleven. Id., 481. That Committee reported the provision giving the Senate power to try all impeachments, id., 497, which the Convention thereafter approved. Id., 551. It may be assumed that so long as trial was in the Supreme Court, the Framers did not intend that the Justices, at least, were to be subject to the process.
The Committee of Five on August 20 was directed to report “a mode for trying the supreme Judges in cases of impeachment,” id., 337, and it returned a provision making Supreme Court Justices triable by the Senate on impeachment by the House. Id., 367. Consideration of this report was postponed. On August 27, it was proposed that all federal judges should be removable by the executive upon the application of both houses of Congress, but the motion was rejected. Id., 428–429. The matter was not resolved by the report of the Committee on Style, which left in the “good behavior” tenure but contained nothing about removal. Id., 575. Therefore, unless judges were included in the term “civil officers,” which had been added without comment on September 8 to the impeachment clause, id., 552, they were not made removable. But see infra. n.758.
757 The House of Representatives has approved articles of impeachment for thirteen judges. Two of the judges resigned before the trials in the Senate. After Senate trials, seven judges were convicted and removed. Those judges who were tried were: John Pickering, District Judge, 1803–1804, convicted, 3 A. Hinds’ Precedents of the House of Representatives of the United States (Washington: 1907), 2319–2341; Justice Samuel Chase, 1804–1805, acquitted, id., 2342–2363; James H. Peck, District Judge, 1830, acquitted, id., 2364–2384; West H. Humphreys, District Judge, 1862, convicted, id., 2385–2397; Charles Swayne, District Judge, 1904–1905, acquitted, id., 2469–2485; Robert W. Archbald, Judge of Commerce Court, 1912–1913, convicted, 6 C. Cannon’s Precedents of the House of Representatives of the United States (Washington: 1936), 498–512; Harold Louderback, District Judge, 1932, acquitted, id., 513–524; Halsted L. Ritter, 1936, District Judge, convicted, Proceedings of the United States Senate in the Trial of Impeachment of Halsted L. Ritter, S. Doc. No. 200, 74th Congress, 2d sess. (1936); Harry Claiborne, District Judge, 1986, convicted, Proceedings of the United States Senate in the Impeachment Trial of Harry E. Claiborne, S. Doc. 99–48, 99th Cong., 2d sess. (1986); Alcee Hastings, District Judge, 1989, convicted, Proceedings of the United States Senate in the Impeachment Trial of Alcee L. Hastings, S. Doc. 101–18, 101st Cong., 1st sess. (1989); Walter Nixon, District Judge, 1989, convicted, Proceedings of the United States Senate in the Impeachment Trial of Walter L. Nixon, Jr., S. Doc. 101–22, 101st Cong., 1st sess. (1989). For discussions of these and of the four acquittals, see A. Boyan (ed.), Constitutional Aspects of Watergate: Documents and Materials (Dobbs Ferry, N.Y.: 1976) (per listings).
758 Briefly, it has been argued that the impeachment clause of Article II is a limitation on the power of Congress to remove judges and that Article III is a limitation on the executive power of removal, but that it is open to Congress to define “good behavior” and establish a mechanism by which judges may be judicially removed. Shartel, Federal Judges—Appointment, Supervision, and Removal—Some Possibilities Under the Constitution,” 28 L. Rev.485,723,870 (1930). Proposals to this effect were considered in Congress in the 1930s and 1940s and revived in the late 1960s, stimulating much controversy in scholarly circles. E.g., Kramer & Barron, The Constitutionality of Removal and Mandatory Retirement Procedures for the Federal Judiciary: The Meaning of “During Good Behavior”, 35W.L. Rev.455 (1967); Ziskind, Judicial Tenure in the American Constitution: English and American Precedents, 1969 Sup. Ct. Rev. 135; Berger, Impeachment of Judges and ‘Good Behavior’ Tenure, 79 L. J.1475 (1970) Congress did in the Judicial Conduct and Disability Act of 1980, P. L. 96–458, 94 Stat. 2035 , 28 U.S.C. Sec. 1 note, 331, 332, 372, 604, provide for judicial council of the circuit disciplinary powers over federal judges, but it specifically denied any removal power. The National Commission, op. cit., n.755, 17–26, found impeachment to be the exclusive means of removal and recommended against adoption of an alternative. The issue has been obliquely before the Court as a result of a judicial conference action disciplining a district judge, but it was not reached, Chandler v. Judicial Council, 382 U.S. 1003 (1966); id., 398 U.S. 74 (1970), except by Justices Black and Douglas in dissent, who argued that impeachment was the exclusive power.
759 1 M. Farrand, op. cit., n.4, 88, 90, 230.
760 2 id., 172, 186.
761 Id., 499.
762 Id., 550.
763 1 T. Howell, State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Present Times (London: 1809), 90, 91; A. Simpson, Treatise on Federal Impeachments (Philadelphia: 1916), 86.
764 Article III, 3.
765 The use of a technical term known in the common law would require resort to the common law for its meaning, United States v. Palmer, 3 Wheat. (16 U.S.) 610, 630 (1818) (per Chief Justice Marshall); United States v. Jones, 26 Fed. Cas. 653, 655 (No. 15,494) (C.C.Pa. 1813) (per Justice Washington), leaving aside the issue of the cognizability of common law crimes in federal courts. See Act of April 30, 1790, Sec. 21, 1 Stat. 117 .
766 Berger, Impeachment for “High Crimes and Misdemeanors,” 44 S. Calif. L. Rev. 395, 400–415 (1971).
767 The extradition provision reported by the Committee on Detail had provided for the delivering up of persons charged with “Treason, Felony or high Misdemeanors.” 2 M. Farrand, op. cit., n.4, 174. But the phrase “high Misdemeanors” was replaced with “other crimes,” “in order to comprehend all proper cases: it being doubtful whether ‘high misdemeanor’ had not a technical meaning too limited.” Id., 443.
768 See id., 64–69, 550–551.
769 E.g., 3 J. Elliot, Debates in the Several State Conventions on Adoption of the Constitution (Philadelphia: 1836), 341, 498, 500, 528 (Madison); 4 id., 276, 281 (C. C. Pinckney: Rutledge): 3 id., 516 (Corbin): 4 id., 263 (Pendleton). Cf. The Federalist, No. 65 (J. Cooke ed., 1961), 439–445 (Hamilton).
770 1 Annals of Cong. 372–373 (1789).
771 4 J. Elliot, op. cit., n.769, 126 (Iredell); 2 id., 478 (Wilson).
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