The Power of Impeachment: Overview

Article I, Section 2, Clause 5:

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

The Constitution confers upon Congress the power to impeach and thereafter remove from office the President,1 Vice President, and other federal officers—including judges—on account of treason, bribery, or other high crimes and misdemeanors. In exercising this power, the House and the Senate have distinct responsibilities, with the House determining whether to impeach and, if impeachment occurs, the Senate deciding whether to convict the person and remove him from office. The impeachment process formulated by the Constitution stems from a tool used by the English Parliament to hold accountable ministers of the Crown thought to be outside the control of the criminal courts.2 This tool was adopted and somewhat modified by the American colonies and incorporated into state constitutions adopted before the federal Constitution was formed.3

When bestowing on the House of Representatives the sole power of impeachment,4 the Framers left to that body's discretion the important question of when impeachment proceedings are appropriate for treason, bribery, or other high crime and misdemeanor.5 The Constitution also gives the House of Representatives general authority to structure the rules of its own proceedings, and this authority seems understood to extend to those proceedings concerning impeachment.6

The Constitution's grant of the impeachment power to Congress is largely unchecked by the other branches of government. Impeachment is primarily a political process, in which judgments and procedures are left to the final discretions of the authorities vested with the powers to impeach and to try impeachments.7 Accordingly, the nature and scope of the impeachment power has been shaped not only by congressional perceptions regarding the Framers' intent in crafting the Constitution's impeachment clauses, but also by shifting institutional relationships between the three branches of the government, evolving balances of power between political parties and interest groups, and the scope of accountability exercised by the people over Congress and the executive branch.8 Further, examination of attempted impeachments, as well as those which sparked the resignation of an official, can sometimes inform the scope of the impeachment power.9

While the House alone has the power to initiate impeachment proceedings, both houses of Congress may pursue other methods to voice opposition to the conduct of government actors. The House and Senate, separately or in conjunction, have sometimes formally announced their disproval of a particular executive branch official by adopting a resolution censuring, condemning, or expressing a lack of confidence in him, essentially noting displeasure with the official's actions short of the sanction of impeachment and removal.10

Footnotes

1

The Constitution contains a number of provisions that are relevant to the impeachment of federal officials. Article I, Section 2, Clause 5 grants the sole power of impeachment to the House of Representatives; Article I, Section 3, Clause 6 assigns the Senate sole responsibility to try impeachments; Article I, Section 3, Clause 7 provides that the sanctions for an impeached and convicted individual are limited to removal from office and potentially a bar from holding future office, but an impeachment proceeding does not preclude criminal liability; Article II, Section 2, Clause 1 provides that the President enjoys the pardon power, but it does not extend to cases of impeachment; and Article II, Section 4 defines which officials are subject to impeachment and what kinds of misconduct constitute impeachable behavior. Article III does not mention impeachment expressly, but Section 1, which establishes that federal judges shall hold their seats during good behavior, is widely understood to provide the unique nature of judicial tenure. And Article III, Section 2, Clause 3 provides that trials, “except in Cases of Impeachment, shall be by jury.”

2

See The Federalist Nos. 65, 81 (Alexander Hamilton) (Clinton Rossiter ed., 1961); Raoul Berger, Impeachment: The Constitutional Problems 59–66 (1973); Charles Black, Impeachment: A Handbook 5–6 (1974).

3

See Peter Hoffer & N.E.H. Hull, Impeachment in America, 1635–1805 15–95 (1984); Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 1–24 (2000); Josh Chafetz, Congress's Constitution 96–97 (2017).

4

U.S. Const. art. I, § 3, cl. 5.

5

Id. art. II, § 4.

6

Id. art. I, § 5; see United States v. Ballin, 144 U.S. 1, 5 (1892) ( “The constitution empowers each house to determine its rules of proceedings.” ).

7

See Nixon v. United States, 506 U.S. 224, 237–38 (1993) (ruling that a challenge to the Senate's use of a committee to take evidence for an impeachment trial posed a nonjusticiable political question).

8

Gerhardt, supra note 3, at ix–xiii.

9

See infra ArtI.S2.C5.1.3 The Power of Impeachment: Doctrine and Practice The Power of Impeachment: Doctrine and Practice; ArtII.S4.2.3.1 Impeachable Offenses: Early Historical Practice (1789–1860) Impeachable Offenses: Early Historical Practice (1789–1860) et seq.

10

See infra ArtI.S2.C5.1.4.1 Alternatives to Impeachment Alternatives to Impeachment.