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 Misdemeanor...
The impeachment provisions of the Constitution
Impeachment was a device that figured from the first in the plans proposed to the Convention; discussion addressed such questions as what body was to try impeachments and what grounds were to be stated as warranting impeachment.
Persons Subject to Impeachment
During the debate in the First Congress on the "removal" controversy, it was contended by some members that impeachment was the exclusive way to remove any officer of the Government from his post,
Judges.-Article III, § 1, specifically provides judges with "good behavior" tenure, but the Constitution nowhere expressly vests the power to remove upon bad behavior, and it has been assumed that judges are made subject to the impeachment power through being labeled "civil officers."
Judgment-Removal and Disqualification
Article II, section 4 provides that officers impeached and convicted "shall be removed from office"; Article I, section 3, cl. 7 provides further that "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." These restrictions on judgment, both of which relate to capacity to hold public office, emphasize the non-penal nature of impeachment, and help to distinguish American impeachment from the open-ended English practice under which criminal penalties could be imposed.
The plain language of section four seems to require removal from office upon conviction, and in fact the Senate has removed those persons whom it has convicted. In the 1936 trial of Judge Ritter, the Senate determined that removal is automatic upon conviction, and does not require a separate vote.
The Convention came to its choice of words describing the grounds for impeachment after much deliberation, but the phrasing derived directly from the English practice. The framers early adopted, on June 2, a provision that the Executive should be removable by impeachment and conviction "of mal-practice or neglect of duty."
The phrase "high crimes and misdemeanors" in the context of impeachments has an ancient English history, first turning up in the impeachment of the Earl of Suffolk in 1388.
Debate prior to adoption of the phrase
The Chase Impeachment
The issue of the scope of impeachable offenses was early joined as a consequence of the Jefferson Administration's efforts to rid itself of some of the Federalist judges who were propagandizing the country through grand jury charges and other means. The theory of extreme latitude was enunciated by Senator Giles of Virginia during the impeachment trial of Justice Chase. "The power of impeachment was given without limitation to the House of Representatives; and the power of trying impeachments was given equally without limitation to the Senate.... A trial and removal of a judge upon impeachment need not imply any criminality or corruption in him . . . [but] nothing more than a declaration of Congress to this effect: You hold dangerous opinions, and if you are suffered to carry them into effect you will work the destruction of the nation. We want your offices, for the purpose of giving them to men who will fill them better."
Other Impeachments of Judges
The 1803 impeachment and conviction of Judge Pickering as well as several successful 20th century impeachments of judges appear to establish that judges may be removed for seriously questionable conduct that does not violate a criminal statute.
Of the three most recent judicial impeachments, Judges Clai-borne and Nixon had previously been convicted of criminal offenses, and Judge Hastings had been acquitted of criminal charges after trial. The impeachment articles against Judge Hastings charged both the conduct for which he had been indicted and trial conduct. A separate question was what effect the court acquittal should have had.
Although the language of the Constitution makes no such distinction, some argue that, because of the different nature of their responsibilities and because of different tenure, different standards should govern impeachment of judges and impeachment of executive officers.
The Johnson Impeachment
President Andrew Johnson was impeached by the House on the ground that he had violated the "Tenure of Office" Act
The Nixon Impeachment Proceedings
For the first time in over a hundred years,
In the course of the proceedings, there was strenuous argument about the nature of an impeachable offense, whether only criminally-indictable actions qualify for that status or whether the definition is broader.
The Clinton Impeachment
President Clinton was impeached by the House, but acquitted by vote of the Senate. The House approved two articles of impeachment against the President stemming from the President's response to a sexual harassment civil lawsuit and to a subsequent grand jury investigation instigated by an Independent Counsel. The first article charged the President with committing perjury in testifying before the grand jury about his sexual relationship with a White House intern and his efforts to cover it up;
A number of legal issues surfaced during congressional consideration of the Clinton impeachment.
Finally, the Clinton impeachment raised the issue of what the threshold is for "high crimes and misdemeanors." While the Nixon charges were premised on the assumption that an abuse of power need not be a criminal offense to be an impeachable offense,
Judicial Review of Impeachments
It was long assumed that no judicial review of the impeachment process was possible, that impeachment presents a true "political question" case, i.e., that the Constitution's conferral on the Senate of the "sole" power to try impeachments is a textually demonstrable constitutional commitment of trial procedures to the Senate to decide without court review. That assumption was not contested until very recently, when Judges Nixon and Hastings challenged their Senate convictions.
In the Judge Nixon case, the Court held that a claim to judicial review of an issue arising in an impeachment trial in the Senate presents a nonjusticiable "political question."
Although the word "impeachment" is sometimes used to refer to the process by which any member of the House may "impeach" an officer of the United States under a question of constitutional privilege (see 3 HINDS' PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES §§ 2398 (impeachment of President John Tyler by a member) and 2469 (impeachment of Judge John Swayne by a member) (1907), the word as used in Article II, § 4 refers to impeachment by vote of the House, the consequence of which is that the Senate may then try the impeached officer.
The Committee of Five on August 20 was directed to report "a mode for trying the supreme Judges in cases of impeachment," id. at 337, and it returned a provision making Supreme Court Justices triable by the Senate on impeachment by the House. Id. at 367. Consideration of this report was postponed. On August 27, it was proposed that all federal judges should be removable by the executive upon the application of both houses of Congress, but the motion was rejected. Id. at 428-29. The matter was not resolved by the report of the Committee on Style, which left in the "good behavior" tenure but contained nothing about removal. Id. at 575. Therefore, unless judges were included in the term "civil officers," which had been added without comment on September 8 to the impeachment clause, id. at 552, they were not made removable.
The rule was adopted in the aftermath of an embarrassingly sparse attendance at the trial of Judge Louderback in 1935. National Comm. Report, supra at 50- 53, 54-57; Grimes, supra at 1233-37. In the Nixon case, the lower courts held the issue to be non-justiciable (Nixon v. United States, 744 F. Supp. 9 (D.D.C. 1990), aff'd 938 F.2d 239 (D.C. Cir. 1991), but a year later a district court initially ruled in Judge Hastings' favor. Hastings v. United States, 802 F. Supp. 490 (D.D.C. 1992), vacated 988 F.2d 1280 (D.C. Cir. 1993).