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LII Backgrounder on Impeachment

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Asked and Answered

I read your explanation on impeachment, and I have two questions:

1) If the House votes for impeachment, thus moving the matter to the Senate for trial, who acts as prosecutor (The House Judicial Committee?) and who makes up the defense (does the accused have a right to have his attorneys present?

2) Can the defendant claim a Constitutional defense (ie-5th Amendment) even though this argument hasn't been raised in the previous inquiries?

--Venturi, CA

In the case of a Presidential impeachment, it is likely that the entire Senate, rather than just a committee, would hear the evidence presented by a small group of members of the House Representatives, referred to as "managers." The managers act as prosecutors, with the power to call and cross-examine witnesses. Senators may also question witness, although the questions are presented through the Presiding Officer. Opening and closing arguments are allowed for both sides, although the House is allowed the last word.

As for defense counsel, the impeached officer may have an attorney present to file motions, objections, requests, applications, and to cross-examine witnesses. In fact, the officer's presence is not required at all. The writ of summons specifies a fixed time and place to file an answer to the charges, but this may be done by attorney. Even if an answer is not filed, the trial continues on an automatic plea of "not guilty." The Senate may not compel the officer to testify as a witness, nor take the officer into custody. However, the officer is entitled to testify on his or her own behalf. The rights of the officer on the stand are uncertain. By taking the stand voluntarily, it may be presumed that the officer "opened the door" to any questions and forfeited any defenses other than lack of knowledge. A more complex answer may be that Constitutional defenses do not apply on the floor of the Senate. Impeachment is not a criminal proceeding, and thus, may not be affected by the right against self-incrimination just as in civil proceedings are not. Finally, other than limitations specifically imposed by the Constitution, such as the two-thirds majority rule, the impeachment process may lie outside more general Constitutional provisions just as it lies outside judicial review. In Senate Impeachment Rule VI, the Senate "shall have the power to compel the attendance of witnesses, to enforce obedience to its orders, writs, precepts, and judgments..." No mention is made of witness rights or privileges.

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Prepared by Brian J. Henchey for the Legal Information Institute

    
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Updated September 28, 1998

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