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LII Backgrounder on Impeachment

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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.

--U.S. Constitution, Article 2, Section 4

Introduction

On September 11, 1998, Independent Counsel Kenneth Starr delivered an official report to the House Judiciary Committee detailing his investigation into the conduct of President William Jefferson Clinton. Following review, the committee may begin an impeachment inquiry, which, if carried to ultimate conclusion, may render the sitting President an ordinary citizen, and elevate the Vice-President to the Oval Office. Such action derives from Congress' Constitutional mandate and represents the most powerful check and balance granted to the Legislative Branch. As such, it is also the most difficult to implement, especially against the Presidency. To this date, only two Presidents have faced Articles of Impeachment--Andrew Johnson in 1868 and Richard Nixon in 1974. In Johnson's case, the Senate's vote fell short of the neccessary two-thirds, while Nixon resigned before the House could vote on the Articles.

Since the Presidential impeachment process is rarely used, yet central to current events, this site intends to provide background information and resources for further research.

What is Impeachment?

Technically, impeachment is the Senate's quasi-criminal proceeding instituted to remove a public officer, not the actual act of removal. Most references to impeachment, however, encompass the entire process, beginning with the House's impeachment inquiry. The term will be used in that broader sense here. By design, impeachment is a complex series of steps and procedures undertaken by the legislature. The process roughly resembles a grand jury inquest, conducted by the House, followed by a full-blown trial, conducted by the Senate with the Chief Justice presiding. Impeachment is not directed exclusively at Presidents. The Constitutional language, "all civil officers," includes such positions as Federal judgeships. The legislature, however, provides a slightly more streamlined process for lower offices by delegating much of it to committees. See Nixon v. US, 506 U.S. 224 (1993)(involving removal of a Federal judge). Presidential impeachments involve the full, public participation of both branches of Congress.

The Impeachment Process in a Nutshell

  1. The House Judiciary Committee deliberates over whether to initiate an impeachment inquiry.

  2. The Judiciary Committee adopts a resolution seeking authority from the entire House of Representatives to conduct an inquiry. Before voting, the House debates and considers the resolution. Approval requires a majority vote.

  3. The Judiciary Committee conducts an impeachment inquiry, possibly through public hearings. At the conclusion of the inquiry, articles of impeachment are prepared. They must be approved by a majority of the Committee.

  4. The House of Representatives considers and debates the articles of impeachment. A majority vote of the entire House is required to pass each article. Once an article is approved, the President is, technically speaking, "impeached" -- that is subject to trial in the Senate.

  5. The Senate holds trial on the articles of impeachment approved by the House. The Senate sits as a jury while the Chief Justice of the Supreme Court presides over the trial.

  6. At the conclusion of the trial, the Senate votes on whether to remove the President from office. A two-thirds vote by the Members present in the Senate is required for removal.

  7. If the President is removed, the Vice-President assumes the Presidency under the chain of succession established by Amendment XXV.

Constitutional Authority

At the time of the drafting of the Constitution, impeachment was an established process in English law and government. The Founding Fathers incorporated the process, with modifications, into the fabric of United States government. The Constitution, however, only provides the framework-the basic who's, why's, and how's. The remaining procedural intricacies reside in the internal rules of the House and Senate.

Who?

Article 2, Section 4--"The President, Vice-President, and all civil officers of the United States. . ."

As noted above, this includes Federal judges. It does not, however, include House Representatives or Senators.

Why?

Article 2, Section 4--". . .on impeachment for, and on conviction of, treason, bribery, or other high crimes or misdemeanors."

This implies that the impeachment process is not tightly linked to the criminal law. The test is not satisfied by all crimes. With only two named offenses to provide context for the inclusive phrase "high crimes and misdemeanors," the standard remains undefined. The language suggests, however, that criminal action may be required. It is worth noting that the term "misdemeanor" does not correspond to the modern definition of a less serious (sub-felony) statutory or common law criminal offense.

In the case of Andrew Johnson, the House accused the President, among other things, of speaking disrespectfully of Congress "in a loud voice."

How?

Article 1, Section 2, Clause 5--"The House of Representatives . . . shall have the sole power of impeachment."

The power of impeachment translates into the power to indict. The House, through the Judiciary Committee, conducts investigation and gathers evidence. At the proper time, the House assembles the evidence into individual indictments or charges known as Articles of Impeachment. Each article requires a majority vote of the House to pass to the Senate. Once impeached, the officer is on trial.

Article 1, Section 3, Clause 6--"The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present."

The trial of the impeached officer is held in the Senate. In Nixon v. US, regarding the impeachment trial of a Federal judge, the Supreme Court ruled that the application of the phrase phrase "sole power to try all impeachments" to a particular case was not justiciable. In other words it held that the proper application of this constitutional language to a specific impeachment proceeding was not a question for the courts. Therefore, the process and procedure for impeachment lie solely within the purview of the legislature. The officer subject to an impeachment proceeding has no appeal to a federal court.

Article 1, Section 3, Clause 7--"Judgment in cases 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: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law."

An impeachment and removal does not activate the double jeopardy clause of the Fifth Amendment. The ex-officer may face criminal indictments and trials for the same conduct that led to their impeachment and removal from office.

Suggestions or Comments?
This collection of material on the law of impeachment is a work in progress. If you have suggestions of additional material or sources, comments, or feedback of any kind, please
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Prepared by Brian J. Henchey for the Legal Information Institute

 
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Updated January 25, 1999

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