Article I, 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 Senate has held impeachment trials for three Presidents. The first was the trial of President Andrew Johnson,1 who was impeached in the shadow of the Civil War and significant disputes with Congress over the policy of Reconstruction.2 In the first major impeachment trial of a President, the Senate formed a committee to adopt procedures for use at trial. The procedures adopted during the Johnson impeachment are largely unchanged today.3 Chief Justice Salmon Chase administered the oath to the Senate sitting as an impeachment trial and presided over the proceedings.

The primary issue at the trial was whether President Johnson’s violation of the Tenure of Office Act was an impeachable offense. The statute barred the removal of federal officeholders absent Senate approval; Johnson violated it by removing Secretary of War Edwin Stanton without the Senate’s consent.4 The Johnson Administration thought the law unconstitutional,5 and there was disagreement about the applicability of the Act to Stanton because he had been appointed by President Lincoln, rather than Johnson.6 Counsel for Johnson at the Senate trial argued that impeachment was inappropriate for violating a statute whose meaning was unclear and that the law itself was unconstitutional.7 The Senate voted to acquit President Johnson by one vote.8 The failure to convict Johnson seems to have established a precedent that impeachment is not appropriate for political or policy disagreements with the President; instead, impeachment is reserved for serious abuses of the office.9

The impeachment trial of President Bill Clinton was the second Senate trial of a president.10 The impeachment of President Clinton stemmed from the investigation by an independent counsel into a wide range of alleged scandals in the Clinton Administration. Independent Counsel Kenneth Starr’s investigation eventually expanded into whether President Clinton committed perjury in his response to a civil suit regarding the existence of a sexual relationship he had with a White House staffer and obstructed justice by encouraging others to lie about his relationship with the staffer.11

, Wash. Post (1998), http://www.washingtonpost.com/wp-srv/politics/special/clinton/icreport/icreport.htm.

Starr referred a report to the House of Representatives on September 9, 1998, noting that under the Independent Counsel Act in effect at the time, his office was required to notify Congress about potentially impeachable behavior discovered during the course of the independent counsel investigation.12

, Wash. Post (1998), http://www.washingtonpost.com/wp-srv/politics/special/clinton/icreport/5intro.htm; see 28 U.S.C. § 595(c) (1994). The independent counsel statute expired in 1999. 28 U.S.C. § 599. The House eventually impeached President Clinton for perjury to a grand jury and obstruction of justice.13 In a departure from past impeachment trials of judges and Executive Branch officials, the Senate voted to require separate votes to approve each individual witness offered by the House managers.14 Due to the infrequency of presidential impeachments, the relevance of the Senate’s decisions concerning the procedures employed in the Clinton trial for future impeachments is uncertain.

The constitutional significance of the Clinton impeachment experience is still a matter of dispute. To the extent the impeachment of President Clinton stemmed from behavior arguably unconnected to the office, some might view the ultimate acquittal of President Clinton by the Senate as evidence that impeachment only applies to behavior distinctly public in nature.15 However, the majority report of the House Judiciary Committee argued that just as perjury, for example, was an impeachable offense for a federal judge, so it was also an impeachable offense for a President because it was “just as devastating to our system of government.” 16

, at 110–18 (1998). In addition, the charge of obstruction of justice brought by the House alleged that President Clinton used the powers of his office to impede and conceal the existence of evidence in both a civil lawsuit brought against him and during the investigation of the independent counsel.17 Complicating matters further, the acquittal might not represent any particular view of the standards for impeachable behavior, but simply either that the House managers did not prove their case, or that other considerations drove the votes of certain Senators.18

The third President to face a Senate impeachment trial was Donald Trump—the only President to be impeached, tried, and acquitted twice. The first impeachment trial stemmed primarily from a telephone conversation President Trump had with President Volodymyr Zelenskyy of Ukraine in which President Trump asked the Ukrainian President to announce two investigations: one involving President Trump’s potential opponent in the upcoming 2020 presidential election and a second into unsubstantiated allegations that entities within Ukraine had interfered in the 2016 presidential election.19

, at 81–83 (2019). At the time of the phone call, the Office of Management and Budget had frozen $400 million in military aid to Ukraine at the direction of the President.20 Revelations about the phone call, first brought to light by a whistleblower, prompted the initiation of a number of House investigations that eventually evolved into an impeachment investigation.

The House ultimately approved two articles of impeachment against the President. The first charged the President with abuse of power, alleging that he had used the powers of his office to solicit Ukraine’s interference in the 2020 election and had conditioned official acts, including the release of military aid to Ukraine and a White House meeting, on President Zelenskyy agreeing to announce the investigations.21 “President Trump,” the article alleged, “engaged in this scheme or course of conduct for corrupt purposes in pursuit of personal political benefit.” 22 The second article charged the President with obstruction of the House impeachment investigation by directing the “unprecedented, categorical, and indiscriminate defiance of subpoenas issued by the House of Representatives.” 23

The second Trump impeachment occurred a year later following the events on January 6, 2021, at the U.S. Capitol in which some supporters of President Trump attempted to disrupt the congressional certification of the 2020 presidential election as having been won by Joseph Biden.24 One week after that event, the House introduced and approved a single article of impeachment charging the President with “incitement to insurrection.” 25 Specifically, the article alleged that in the months running up to January 6 the President had consistently “issued false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the American people.” 26 He then repeated those claims when addressing a crowd on January 6, and “willfully made statements that, in context, encouraged—and foreseeably resulted in—lawless action at the Capitol . . . .” 27 Notably, although the House ultimately impeached President Trump prior to the expiration of his term of office, the Senate did not commence a trial until after President Trump had left office and become a private citizen.28

In both impeachments, the Senate tried and acquitted President Trump on all charges.29 Both trials, however, saw at least one member of the President’s own party vote to convict, and the second trial saw a majority of Senators vote to convict,30 though the fifty-seven votes was short of the two-thirds required for conviction under the Constitution.31 Like most acquittals, the constitutional implications and precedential impact of the Trump trials is difficult to assess.

The first impeachment trial was characterized by deep partisan divides and complicated disagreements over questions of fact, law, and presidential motive. But one clear constitutional conflict that arose during the trial involved the proper relationship between impeachment and the criminal law. Trial briefs and debate made clear that the House managers and President Trump’s attorneys reached different conclusions on the question of whether “high crimes and misdemeanors” require evidence of a criminal act.32 The House, consistent with past impeachment practice, asserted that for purposes of Article II “high Crimes and Misdemeanors” “need not be indictable criminal offenses.” 33 In response, however, the President’s attorneys asserted that an “impeachable offense must be a violation of established law,” and that the articles “fail[ed] to allege any crime or violation of law whatsoever, let alone ‘high Crimes and Misdemeanors,’ as required by the Constitution.” 34 The acquittal provided no clear resolution to these conflicting positions, but the debate over a link between illegal acts and impeachable acts appears to have had some impact on individual Senators. Indeed, the House’s managers’ failure to allege a criminal act appears, along with what has been criticized as shortcomings in the House investigation and failure of the House to prove its case, to have been among the primary reasons given by Senators who favored acquittal.35

The second trial displayed the legal and practical import of impeaching a former official. After briefing and debate on the question of whether the Senate had the constitutional authority to try a former President for acts that occurred during his tenure in office, the Senate explicitly determined by a vote of fifty-six to forty-four that it had jurisdiction and authority to do so.36 Thus a majority of Senators, as they have on previous occasions, determined that former officials may be tried by the Senate and remain—as provided in Article I, Section 3—subject to disqualification from holding future office if convicted.37 However, the majority of the forty-three Senators who voted to acquit the President did so at least partly on the basis that they disagreed with that decision and instead viewed the trial of a former President as “unconstitutional.” 38 As a result, it appears that while the Senate may have legal authority to try a former official, current disagreement on the matter may be widespread enough to create a practical obstacle to obtaining the supermajority necessary to convict a former official.

Footnotes

1

For a more thorough examination of the Johnson impeachment, see ArtII.S4.4.4 President Andrew Johnson and Impeachable Offenses.

2

See Michael J. Gerhardt, Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson; William H. Rehnquist, 16 Const. Comment. 433, 435 (1999); Eric Foner, A Short History of Reconstruction (2015).

3

See Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 33 (2000); Procedure and Guidelines for Impeachment Trials in the Senate, S. Doc. No. 93-33, 99th Cong., 2d Sess., at 61 (1986).

4

Tenure of Office Act, ch. 154, 14 Stat. 430 (1867) (amended by Act of Apr. 5, 1869, ch. 10, 16 Stat. 6, repealed by Act of Mar. 3, 1887, ch. 353, 24 Stat. 500); see ArtII.S4.4.4 President Andrew Johnson and Impeachable Offenses.

5

Such tenure protections were later invalidated as unconstitutional by the Supreme Court. See Myers v. United States, 272 U.S. 52 (1926).

6

William H. Rehnquist, Grand Inquests: The Historic impeachments 228–29 (1992).

7

Id. at 228–30.

8

Id. at 234.

9

Peter Hoffer & N.E.H. Hull, Impeachment in America, 1635–1805, at 101 (1984); Michael J. Gerhardt, Putting the Law of Impeachment in Perspective, 43 St. Louis U. L.J. 905, 921–22 (1999).

10

For a more thorough examination of the Clinton impeachment, see ArtII.S4.4.4 President Andrew Johnson and Impeachable Offenses.

11

The Starr Report

, Wash. Post (1998), http://www.washingtonpost.com/wp-srv/politics/special/clinton/icreport/icreport.htm.

12

The Starr Report, Introduction

, Wash. Post (1998), http://www.washingtonpost.com/wp-srv/politics/special/clinton/icreport/5intro.htm; see 28 U.S.C. § 595(c) (1994). The independent counsel statute expired in 1999. 28 U.S.C. § 599.

13

H.R. Rep. No. 105–830, at 28 (1998).

14

5 Cong. Rec. S50 (daily ed. Jan. 8, 1999).

15

See Michael J. Gerhardt, The Perils of Presidential Impeachment, 67 U. Chi. L. Rev. 293, 300–01 (2000) ( “[M]ost senators who voted to acquit President Clinton explained that they did not perceive his misconduct as having a sufficiently public dimension or injury to warrant his removal from office. The former decision, coupled with Clinton’s acquittal, likely signals that there is a zone of a president’s private life that will be treated as largely off limits in the federal impeachment process.” ).

16

H. Comm. on the Judiciary, Impeachment of William Jefferson Clinton, President of the United States, 105th Cong., 2d Sess., H.R. Rep. No.

105-830

, at 110–18 (1998).

17

Id. at 63–64.

18

See generally Gerhardt, supra note 3, at 175–85.

19

H.R. Rep. No.

116-346

, at 81–83 (2019).

20

Id. at 82.

21

H.R. Res. 755, 116th Cong. (2019).

22

Id.

23

Id.

24

H.R. Rep. No. 117-2, at 4–21 (2021).

25

H.R. Res. 24, 117th Cong. (2021).

26

Id.

27

Id.

28

Id.

29

166 Cong. Rec. S937 (daily ed. Feb. 5, 2020) (acquitting President Trump on Article I by a vote of 48-52); id. at S938 (acquitting President Trump on Article II by a vote of 47-53); 167 Cong. Rec. S733 (daily ed. Feb. 13, 2021) (acquitting former President Trump by a vote of 57-43). Although the second Trump impeachment saw a majority of Senators vote to convict the former President, the Constitution requires the “Concurrence of two thirds” of the Senate to convict an impeached official. U.S. Const. art. I, § 3 cl. 6.

30

In the first trial, one member of the President’s party voted to convict, while in the second trial seven members of the President’s party voted to convict. See 166 Cong. Rec. S937–38 (daily ed. Feb. 5, 2020); 167 Cong. Rec. S733 (daily ed. Feb. 13, 2021).

31

167 Cong. Rec. S733 (daily ed. Feb. 13, 2021) (acquitting former President Trump by a vote of 57-43); U.S. Const. art. I, § 3 cl. 6.

32

U.S. Const. art. II, § 4.

33

Proceedings of the United States Senate in the Impeachment Trial of President Donald John Trump, Vol. I: Preliminary Proceedings, 116th Cong., S. Doc. No. 116-18, at 416 (2020).

34

Id. at 471.

35

See, e.g., Proceedings of the United States Senate in the Impeachment Trial of President Donald John Trump, Vol. IV: Statements of Senators, 116th Cong., S. Doc. No. 116-18, at 1915 (2020) (statement of Senator James M. Inhofe) ( “Each of the past impeachment cases in the House of Representatives accused Presidents Johnson, Nixon, and Clinton of committing a crime. This President didn’t commit a crime.” ); id. at 1984 (statement of Senator Ted Cruz) ( “Indeed, in the Articles of Impeachment they sent over here, they don’t allege any crime whatsoever. They don’t even allege a single Federal law that the President violated.” ); id. at 1990 (statement of Senator David Perdue) ( “President Trump is the first President ever to face impeachment who was never accused of any crime in these proceedings, whatsoever. These two Articles of Impeachment simply do not qualify as reasons to impeach any President” ); id. at 2034 (statement of Senator John Cornyn) ( “But they failed to bring forward compelling and unassailable evidence of any crime—again, the Constitution talks about treason, bribery, or other high crimes and misdemeanors; clearly, a criminal standard . . . .” ). Other Senators identified the non-existence of a crime as an important factor in their vote, but nevertheless made clear their belief that a crime is not constitutionally required. See, e.g., id. at 1937 (statement of Senator Mitch McConnell) ( “Now, I do not subscribe to the legal theory that impeachment requires a violation of a criminal statute, but there are powerful reasons why, for 230 years, every Presidential impeachment did in fact allege a criminal violation.” ); id. at 2016 (statement of Senator Rob Portman) ( “In this case, no crime is alleged. Let me repeat. In the two Articles of Impeachment that came over to us from the House, there is no criminal law violation alleged. Although I don’t think that that is always necessary—there could be circumstances where a crime isn’t necessary in an impeachment . . . .” ).

36

167 Cong. Rec. S609 (daily ed. Feb. 9, 2021) (determining that “Donald John Trump is subject to the jurisdiction of a Court of Impeachment for acts committed while President of the United States, notwithstanding the expiration of his term in that office” ).

37

See Jared P. Cole & Todd Garvey, Cong. Rsch. Serv., R46013, Impeachment and the Constitution 47–48 (2019), https://crsreports.congress.gov/product/pdf/R/R46013.

38

See, e.g., Proceedings of the United States Senate in the Impeachment Trial of Donald John Trump, Vol. II: Visual Aids from the Trial and Statements of Senators, 117th Cong., S. Doc. No. 117-3, at 879 (2021) (statement of Senator Roger Marshall) (stating that “the lone Article passed out of the House as well as the subsequent trial in the Senate, was unconstitutional . . . Donald J. Trump is no longer the President of the United States and therefore can no longer be removed from office. He is a private citizen.” ). One survey has found that thirty-eight of the forty-three Senators who voted to acquit did so in part because of concerns that the Senate lacked jurisdiction over the former President. See Ryan Goodman & Josh Asabor, In Their Own Words: The 43 Republicans’ Explanations of Their Votes Not to Convict Trump in Impeachment Trial, Just Security (Feb. 15, 2021), https://www.justsecurity.org/74725/in-their-own-words-the-43-republicans-explanations-of-their-votes-not-to-convict-trump-in-impeachment-trial/.