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
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
The House Judiciary Committee
deliberates over whether to initiate an impeachment inquiry.
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.
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.
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.
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.
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
If the President is removed, the
Vice-President assumes the Presidency under the chain of succession
established by Amendment
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.
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
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."
Article 1, Section 2, Clause 5--"The
House of Representatives . . . shall have the sole power of
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
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 email
Prepared by Brian J. Henchey for
the Legal Information Institute
Updated January 25, 1999
References and Suggested Readings
- Textual Sources
- Michael J. Gerhardt, The
Federal Impeachment Process: A Constitutional and Historical
Analysis, Princeton Univ. Press (1996)
Hamilton, The Federalist Papers No. 65--The Powers of the
Senate (1788) [Federalist Papers Online]
Hamilton, The Federalist Papers No. 66--Objections to the Power
of the Senate to Set as a Court of Impeachments (1788)
[Federalist Papers Online]
- William Rehnquist, Grand
Inquests: The Historic Impeachments of Justice Samuel Chase and
President Andrew Johnson (1992)
- Gene Smith, High Crimes and
Misdemeanors, McGraw Hill (1985)
- Peter Hoffer and N.E. Hull, Impeachment
in America 1635-1805, Yale Univ. Press (1984)
Kingsley, The Federal Impeachment Process: A Bibliographic
Guide to English and American Precedence, Cornell University
- Bob Woodward and Carl Bernstein, The
Final Days, Touchstone Books (2d ed. 1994)