House of Representatives

Impeachment proceedings may be commenced by a member of the House of Representatives on his or her own initiative by either presenting a listing of the charges under oath, or by placing a resolution in the hopper for referral to the appropriate committee. The impeachment process may be triggered by non-members, for example: when the Judicial Conference of the United States suggests a federal judge be impeached; a Special Prosecutor advises the House of information which he or she believes constitutes grounds for impeachment; by message from the President; or by a charge from a State or territorial legislature or grand jury; or by petition.

The type of Impeachment resolution determines which committee it will be referred to. A resolution impeaching a particular individual is typically referred to the House Committee on the Judiciary. A resolution to authorize an investigation regarding impeachable conduct is referred to the House Committee on Rules, which then is then referred to the Judiciary Committee. The House Committee on the Judiciary, by majority vote, will determine whether grounds for impeachment exist. If the Committee finds grounds for impeachment they will set forth specific allegations of misconduct in one or more "articles of impeachment." The Impeachment Resolution, or Article(s) of Impeachment, are then reported to the full House with the committee's recommendations.

The House debates the resolution and may at the conclusion consider the resolution as a whole or vote on each article of impeachment individually. A simple majority of those present and voting is required for each article or the resolution as a whole to pass. If the House votes to impeach, managers are selected to present the case to the Senate. Recently, managers have been selected by resolution, while historically the House would occasionally elect the managers or pass a resolution allowing the appointment of managers at the Speaker of the House of Representatives's discretion.

Also, the House will adopt a resolution in order to notify the Senate of its action. After receiving the notice, the Senate will adopt an order notifying the House that it is ready to receive the managers. The house managers will then appear before the bar of the Senate to impeach the individual involved and exhibit the articles against him or her. After the reading of the charges, the managers return and make a verbal report to the House.

Senate

The proceedings unfold in the form of a trial, with each side having the right to call witnesses and perform cross-examinations. House members presenting the prosecution case — in the conduct of the trial styled "managers" — for the purposes of the trial only have full access to the floor of the Senate chamber, a privilege ordinarily denied House members. Senators must also take an oath or affirmation that they will perform their duties honestly and with due diligence, as opposed to the British Lords, who vote upon their honour. The hearing requires a simple majority of the Senators as a quorum. After the hearing the deliberations take place in private, conviction requires a two-thirds majority. The Senate may vote thereafter to punish the individual only by removing her or him from office, or by barring her or him from holding future office, or both. Alternatively, it may impose no punishment. But in the case of executive officers, removal follows automatically upon conviction. The defendant remains liable to criminal prosecution. The President may not in any case use his power of pardon in a case of impeachment, but may, as usual, pardon a defendant in the case of a criminal prosecution.

Beginning in the 1980s, the Senate began using "Impeachment Trial Committees" pursuant to Senate Rule XII. These committees presided over the evidentiary phase of the trials, hearing the evidence and supervising the examination and cross-examination of witnesses. The committees would then compile the evidentiary record and present it to the Senate; all senators would then have the opportunity to review the evidence before the chamber voted to convict or acquit. The purpose of the committees was to streamline impeachment trials, which otherwise would have taken up a great deal of the chamber's time. Defendants challenged the use of these committees, claiming them to be a violation of their fair trial rights as well as the Senate's constitutional mandate, as a body, to have "sole power to try all impeachments." Several impeached judges sought court intervention in their impeachment proceedings on these grounds, but the courts generally refused to become involved.

History

In writing Article II, Section 4, George Mason had favored impeachment for "maladministration," i.e., incompetence, but James Madison, who favored impeachment only for criminal behavior, carried the issue.

Congress traditionally regards impeachment as a power to use only in extreme cases; the House of Representatives has initiated impeachment proceedings only 62 times since 1789. Impeachments of only the following seventeen federal officers have taken place:

• Two presidents: Andrew Johnson and Bill Clinton, both acquitted.
• One cabinet officer, acquitted after he had resigned.
• One Senator, expelled and charges dismissed.
• Thirteen federal judges, including Associate Justice Samuel Chase in 1805.

In addition, Richard Nixon decided to resign in the face of the near certainty of both his impeachment, which had already been approved by the House Judiciary Committee, and his conviction by the Senate.

But even with such rarity in impeachment proceedings, both historians and contemporary opponents of certain trials have voiced arguments that some impeachments were relatively frivolous and politically motivated.

The 1799 impeachment of Tennessee Senator William Blount stalled on the grounds that the Senate lacked jurisdiction over Blount. Because, in a separate action unrelated to the impeachment procedure, the Senate had already expelled Blount, the lack of jurisdiction may have been either because Blount was no longer a Senator, or because Senators are not "civil officers" of the United States who are subject to impeachment. At any rate, no other member of Congress has ever been impeached. Of the remaining cases, two did not come to trial because the individuals had left office. Each of the seven Senate convictions has involved a federal judge: in one such case, Alcee Hastings subsequently gained election as a member of the House of Representatives, which had impeached him.

The House of Representatives impeached President Clinton on December 19, 1998 on grounds of perjury to a grand jury (voting 228-206) and obstruction of justice (221-212). Two other articles of impeachment failed — a second count of perjury in the Paula Jones case (205-229), and one accusing Clinton of abuse of power (148-285). The Senate impeachment trial lasted from January 7, 1999 until February 12. No witnesses were called during the trial. A two-thirds majority, 67 votes, would have been necessary to remove the President from office. Both charges were defeated: perjury (45-55) and obstruction of justice (50-50).

Notes

¹ During the impeachment trial of Senator Blount, it was argued that the House of Representatives did not have the power to impeach members of either House of Congress; though the Senate never explicitly ruled on this argument, the House has never again impeached a member of Congress. The Constitution allows either House to expel one of its members by a two-thirds vote, which the Senate had done to Blount on the same day the House impeached him (but before the Senate heard the case).

² Judge Nixon later challenged the validity of his removal from office on procedural grounds; the challenge was ultimately rejected as nonjusticiable by the Supreme Court in Nixon v. United States, 506 U.S. 224 (1993)

Impeachment attempts

While actually impeaching a federal public official is a rare event, demands for impeachment, especially of presidents, are extremely common, going back to the administration of George Washington in the mid-1790s. In fact, most of the 63 resolutions mentioned above were in response to presidential actions.

While almost all of them were for the most part frivolous and were buried as soon as they were introduced, several did have their intended effect. Treasury Secretary Andrew Mellon and Supreme court Justice Abe Fortas both resigned in response to the threat of impeachment hearings, and most famously, President Nixon left office after the House Judiciary committee had already reported articles of impeachment to the floor. Two attempts to impeach a president made it all the way to a full House vote and failed: John Tyler in 1843, and Andrew Johnson in 1867. In addition, the original mandate of the joint committee investigating the Iran Contra affair was to look for evidence that might lead to the impeachment of President Reagan.

In December of 2005, Rep. John Conyers chaired a subcommittee on possible impeachment actions against President George W. Bush.

Impeachment Etymologically

Impeachment occurs so rarely that the term is often misunderstood. A typical misconception is to confuse it with involuntary removal from office; in fact, it is only the legal statement of charges, paralleling an indictment in criminal law. An official who is impeached faces a second legislative vote (whether by the same body or another), which determines conviction, or failure to convict, on the charges embodied by the impeachment. Most constitutions require a supermajority to convict.

Etymologically, the word "impeachment" derives from Latin roots expressing the idea of becoming caught or entrapped, and has analogues in the modern French verb empêcher (to prevent) and the modern English impede. Medieval popular etymology also associated it (wrongly) with derivations from the Latin impetere (to attack). (In its more frequent and more technical usage, impeachment of a person in the role of a witness is the act challenging the honesty or credibility of that person.)

The process should not be confused with recall election. A recall election is usually initiated by voters and can be based on "political charges", for example mismanagement, whereas impeachment is initiated by a constitutional body (usually a legislative body) and is usually based, but not always, on indictable offenses. The process of removing the official is also different.

United States

At the federal level, different standards apply when the impeachment involves a member of the executive branch or of the judiciary (and dispute currently exists over the use of impeachment against members of the legislative branch.) For the executive branch, only those who have allegedly committed "treason, bribery, or other high crimes and misdemeanors" may be impeached. Although treason and bribery are obvious, the Constitution is silent on what constitutes a "high crime or misdemeanor." Several commentators have suggested that Congress alone may decide for itself what constitutes an impeachable offense. In 1970, then-Representative Gerald R. Ford defined the criteria as he saw it: "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history." Four years later, Ford would assume the Presidency, following a vote to approve impeachment proceedings against Richard Nixon.

The central question regarding the Constitutional dispute about the impeachment of members of the legislature is this: Are members of Congress "officers" of the United States? The Constitution grants to the House the power to impeach "The President, the Vice President, and all civil Officers of the United States." Many believe firmly that Members of Congress are not "officers of the United States." Many others, however, believe that Members are civil Officers and are subject to impeachment. The House of Representatives did impeach a Senator once, Senator William Blount. The Senate expelled Senator Blount and, after initially hearing his impeachment, dismissed the charges for lack of jurisdiction. Left unsettled was the question "Are members of Congress civil officers of the United States?" In modern times, expulsion has become the preferred (albeit rare) method of dealing with errant Members of Congress, as each House has the authority to expel their own members—without involving the other chamber, as impeachment would require.

The impeachment procedure is in two steps. The House of Representatives must first pass "articles of impeachment" by a simple majority. (All fifty state legislatures as well as the District of Columbia city council may also pass articles of impeachment against their own executives). The articles of impeachment constitute the formal allegations. Upon their passage, the defendant has been "impeached."

Next, the Senate tries the accused. In the case of the impeachment of a President, the Chief Justice of the United States presides over the proceedings. Otherwise, the Vice President, in his capacity as President of the Senate, or the President pro tempore of the Senate presides. This may include the impeachment of the Vice President him- or herself, although legal theories suggest that allowing a person to be the judge in the case where she or he was the defendant wouldn't be permitted. If the Vice President did not preside over an impeachment, the duties would fall to the President Pro Tempore.

In order to convict the accused, a two-thirds majority of the senators present is required. Conviction automatically removes the defendant from office. Following conviction, the Senate may vote to further punish the individual by barring them from holding future federal office (either elected or appointed). Despite a conviction by the Senate, the defendant remains liable to criminal prosecution. It is possible to impeach someone even after the accused has vacated their office in order to disqualify the person from future office or from certain emoluments of their prior office (such as a pension.) If a two-thirds majority of the senators present does not vote "Guilty" on one or more of the charges, the defendant is acquitted and no punishment is imposed.

Congress regards impeachment as a power to be used only in extreme cases; the House has initiated impeachment proceedings only 62 times since 1789 (most recently President Clinton), and only the following 17 federal officers have been impeached:

• two presidents:
  • Andrew Johnson was impeached in 1868 after violating the then-newly created Tenure of Office Act. President Johnson was acquitted of all charges by a single vote in the Senate.
  • Bill Clinton was impeached on December 19, 1998 by the House of Representatives on grounds of perjury to a grand jury (by a 228–206 vote) and obstruction of justice (by a 221–212 vote). Two other articles of impeachment failed—a second count of perjury in the Jones case (by a 205–229 vote), and one accusing President Clinton of abuse of power (by a 148–285 vote). He was acquitted by the Senate.
• one cabinet officer, William W. Belknap (Secretary of War). He resigned before his trial, and was later acquitted. Allegedly most of those who voted to acquit him believed that his resignation had removed their jurisdiction.
• one Senator, William Blount (though the Senate had already expelled him and it may have been illegal, see above).
• Associate Justice Samuel Chase in 1804. He was acquitted.
• twelve other federal judges, including Alcee Hastings, who was impeached and convicted for allegedly taking over $150,000 in bribe money in exchange for sentencing leniency. The Senate did not bar Hastings from holding future office, and Hastings won election to the House of Representatives from South Florida. Hastings' was mentioned as a possible Chairman of the House Permanent Select Committee on Intelligence, but was passed over by House Speaker-designate Nancy Pelosi, presumably because of his previous impeachment and removal. Source U.S. Senate

Many mistakenly assume Richard Nixon was impeached, but he wasn't. While the House Judiciary Committee did approve articles of impeachment against him (by wide margins) and did report those articles to the full House, Nixon resigned prior to House consideration of the impeachment resolutions. Both his impeachment by the House of Representatives and his conviction by the Senate were near certainties; Nixon reportedly decided to resign after being told this by Republican Senator Barry Goldwater.