Impeachment in the United States


Impeachment in the United States is the process by which a legislature brings charges against a civil officer of government for crimes alleged to have been committed, analogous to the bringing of an indictment by a grand jury. Impeachment may occur at the federal level or the state level. The federal House of Representatives can impeach federal officials, including the president, and each state's legislature can impeach state officials, including the governor, in accordance with their respective federal or state constitution.
Most impeachments have concerned alleged crimes committed while in office, though there have been a few cases in which officials have been impeached and subsequently convicted for crimes committed prior to taking office. The impeached official remains in office until a trial is held. That trial, and removal from office if convicted, is separate from the act of impeachment itself.
In impeachment proceedings, the defendant does not risk forfeiture of life, liberty, or property. According to the Constitution, the only penalties allowed to be imposed by the Senate are removal from office and disqualification from holding any federal office in the future.

Federal impeachment

Constitutional provisions

There are several provisions in the United States Constitution relating to impeachment:
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Impeachable offenses: "Treason, Bribery, or other high Crimes and Misdemeanors"

The Constitution limits grounds of impeachment to "Treason, Bribery, or other high Crimes and Misdemeanors". The precise meaning of the phrase "high Crimes and Misdemeanors" is not defined in the Constitution itself.
"High crimes and misdemeanors", in the legal and common parlance of England in the 17th and 18th centuries, is corrupt activity by those who have special duties that are not shared with common persons. Toward the end of the 1700s, "High crimes and misdemeanors" acquired a more technical meaning. As Blackstone says in his Commentaries: The first and principal high misdemeanor...was mal-administration of such high offices as are in public trust and employment.
The notion that only criminal conduct can constitute sufficient grounds for impeachment does not comport with either the views of the founders or with historical practice. Alexander Hamilton, in Federalist 65, described impeachable offenses as arising from "the misconduct of public men, or in other words from the abuse or violation of some public trust". Such offenses were "political, as they relate chiefly to injuries done immediately to the society itself". According to this reasoning, impeachable conduct could include behavior that violates an official's duty to the country, even if such conduct is not necessarily a prosecutable offense. Indeed, in the past both houses of Congress have given the phrase "high Crimes and Misdemeanors" a broad reading, finding that impeachable offenses need not be limited to criminal conduct.
The purposes underlying the impeachment process also indicate that non-criminal activity may constitute sufficient grounds for impeachment. The purpose of impeachment is not to inflict personal punishment for criminal activity. Instead, impeachment is a "remedial" tool; it serves to effectively "maintain constitutional government" by removing individuals unfit for office. Grounds for impeachment include abuse of the particular powers of government office or a violation of the "public trust"—conduct that is unlikely to be barred via statute.
In drawing up articles of impeachment, the House has placed little emphasis on criminal conduct. Less than one-third of the articles that the House have adopted have explicitly charged the violation of a criminal statute or used the word "criminal" or "crime" to describe the conduct alleged. Officials have been impeached and removed for drunkenness, biased decision-making, or inducing parties to enter financial transactions, none of which is specifically criminal. Two of the articles against President Andrew Johnson were based on rude speech that reflected badly on the office: President Johnson had made "harangues" criticizing the Congress and questioning its legislative authority, refusing to follow laws, and diverting funds allocated in an army appropriations act, each of which brought the presidency "into contempt, ridicule, and disgrace". A number of individuals have been impeached for behavior incompatible with the nature of the office they hold. Some impeachments have addressed, at least in part, conduct before the individuals assumed their positions: for example, Article IV against Judge Thomas Porteous related to false statements to the FBI and Senate in connection with his nomination and confirmation to the court.
On the other hand, the Constitutional Convention rejected language that would have permitted impeachment for "maladministration", with Madison arguing that "o vague a term will be equivalent to a tenure during pleasure of the Senate."
Congressional materials have cautioned that the grounds for impeachment "do not all fit neatly and logically into categories" because the remedy of impeachment is intended to "reach a broad variety of conduct by officers that is both serious and incompatible with the duties of the office". Congress has identified three general types of conduct that constitute grounds for impeachment, although these categories should not be understood as exhaustive:
  1. improperly exceeding or abusing the powers of the office;
  2. behavior incompatible with the function and purpose of the office; and
  3. misusing the office for an improper purpose or for personal gain.
Conversely, not all criminal conduct is impeachable: in 1974, the Judiciary Committee rejected an article of impeachment against President Nixon alleging that he committed tax fraud, primarily because that "related to the President's private conduct, not to an abuse of his authority as President".
Several commentators have suggested that Congress alone may decide for itself what constitutes a "high Crime or Misdemeanor", especially since the Supreme Court decided in Nixon v. United States that it did not have the authority to determine whether the Senate properly "tried" a defendant. In 1970, then-House Minority Leader Gerald R. Ford defined the criterion 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."
Of the 20 impeachments voted by the House:
The standard of proof required for impeachment and conviction is also left to the discretion of individual Representatives and Senators, respectively. Defendants have argued that impeachment trials are in the nature of criminal proceedings, with convictions carrying grave consequences for the accused, and that therefore proof beyond a reasonable doubt should be the applicable standard. House Managers have argued that a lower standard would be appropriate to better serve the purpose of defending the community against abuse of power, since the defendant does not risk forfeiture of life, liberty, or property, for which the reasonable doubt standard was set.

Officers subject to impeachment: "civil officers of the United States"

The Constitution gives Congress the authority to impeach and remove "The President, Vice President, and all civil officers of the United States" upon a determination that such officers have engaged in treason, bribery, or other high crimes and misdemeanors. The Constitution does not articulate who qualifies as a "civil officer of the United States".
Federal judges are subject to impeachment. In fact, 15 of 20 officers impeached, and all eight officers removed after Senate trial, have been judges. The most recent impeachment effort against a Supreme Court justice that resulted in a House of Representatives investigation was against Justice William O. Douglas. In 1970, Representative Gerald Ford, who was then House minority leader, called for the House to impeach Douglas. However, a House investigation led by Congressman Emanuel Celler determined that Ford's allegations were baseless. According to Professor Joshua E. Kastenberg at the University of New Mexico, School of Law, Ford and Nixon sought to force Douglas off the Court in order to cement the "Southern Strategy" as well as to provide cover for the invasion of Cambodia. When their efforts failed, Douglas remained on the Court.
Within the executive branch, any Presidentially appointed "principal officer", including a head of an agency such as a Secretary, Administrator, or Commissioner, is a "civil officer of the United States" subject to impeachment. At the opposite end of the spectrum, lesser functionaries, such as federal civil service employees, do not exercise "significant authority", and are not appointed by the President or an agency head. These employees do not appear to be subject to impeachment, though that may be a matter of allocation of House floor debate time by the Speaker, rather than a matter of law.
The Senate has concluded that members of Congress are not "civil officers" for purposes of impeachment. As a practical matter, expulsion is effected by the simpler procedures of Article I, Section 5, which provides "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members... Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.". This allows each House to expel its own members without involving the other chamber. In 1797, the House of Representatives impeached Senator William Blount of Tennessee. The Senate expelled Senator Blount under Article I, Section 5, on the same day. However, the impeachment proceeding remained pending. After four days of debate, the Senate concluded that a Senator is not a "civil officer of the United States" for purposes of the Impeachment clause, and dismissed for lack of jurisdiction. The House has not impeached a Member of Congress since Blount.

Procedure

At the federal level, the impeachment process is a three-step procedure.
A number of rules have been adopted by the House and Senate and are honored by tradition.
Jefferson's Manual, which is integral to the Rules of the House of Representatives, states that impeachment is set in motion by charges made on the floor, charges proffered by a memorial, a member's resolution referred to a committee, a message from the president, or from facts developed and reported by an investigating committee of the House. It further states that a proposition to impeach is a question of high privilege in the House and at once supersedes business otherwise in order under the rules governing the order of business.
The House Practice: A Guide to the Rules, Precedents and Procedures of the House is a reference source for information on the rules and selected precedents governing the House procedure, prepared by the House Parliamentarian. The manual has a chapter on the House's rules, procedures, and precedent for impeachment.
In 1974, as part of the preliminary investigation in the Nixon impeachment inquiry, the staff of the Impeachment Inquiry of the House Judiciary Committee prepared a report, Constitutional Grounds for Presidential Impeachment. The primary focus of the Report is the definition of the term "high Crimes and Misdemeanors" and the relationship to criminality, which the Report traces through history from English roots, through the debates at the 1787 Constitutional Convention, and the history of the impeachments before 1974.
The 1974 report has been expanded and revised on several occasions by the Congressional Research Service, and the current version Impeachment and Removal dates from October 2015. While this document is only staff recommendation, as a practical matter, today it is probably the single most influential definition of "high Crimes and Misdemeanors".
The Senate has formal Rules and Procedures of Practice in the Senate When Sitting on Impeachment Trials.

Calls for impeachment, and Congressional power to investigate

While the actual impeachment of a federal public official is a rare event, demands for impeachment, especially of presidents, are common, going back to the administration of George Washington in the mid-1790s.
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 Richard Nixon resigned from office after the House Judiciary Committee had already reported articles of impeachment to the floor.
In advance of the formal resolution by the full House to authorize proceedings, committee chairmen have the same power for impeachment as for any other issue within the jurisdiction of the committee: to investigate, subpoena witnesses, and prepare a preliminary report of findings. For example:
Targets of congressional investigations have challenged the power of Congress to investigate before a formal resolution commences impeachment proceedings. For example, President Buchanan wrote to the committee investigating his administration:
I do, therefore,... solemnly protest against these proceedings of the House of Representatives, because they are in violation of the rights of the coordinate executive branch of the Government, and subversive of its constitutional independence; because they are calculated to foster a band of interested parasites and informers, ever ready, for their own advantage, to swear before ex parte committees to pretended private conversations between the President and themselves, incapable, from their nature, of being disproved; thus furnishing material for harassing him, degrading him in the eyes of the country...

He maintained that the House of Representatives possessed no general powers to investigate him, except when sitting as an impeaching body.
When the Supreme Court has considered similar issues, it held that the power to secure "needed information... has long been treated as an attribute of the power to legislate.... It was so regarded in the British Parliament and in the colonial Legislatures before the American Revolution, and a like view has prevailed and been carried into effect in both houses of Congress and in most of the state Legislatures." The Supreme Court also held, "There can be no doubt as to the power of Congress, by itself or through its committees, to investigate matters and conditions relating to contemplated legislation."
The Supreme Court considered the power of the Congress to investigate, and to subpoena executive branch officials, in a pair of cases arising out of alleged corruption in the administration of President Warren G. Harding. In the first, McGrain v. Daugherty, the Court considered a subpoena issued to the brother of Attorney General Harry Daugherty for bank records relevant to the Senate's investigation into the Department of Justice. Concluding that the subpoena was valid, the Court explained that Congress's "power of inquiry... is an essential and appropriate auxiliary to the legislative function", as " legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change." The Supreme Court held that it was irrelevant that the Senate's authorizing resolution lacked an "avow that legislative action was had in view" because, said the Court, "the subject to be investigated was... lainly subject... on which legislation could be had" and such legislation "would be materially aided by the information which the investigation was calculated to elicit." Although "n express avowal" of the Senate's legislative objective "would have been better", the Court admonished that "the presumption should be indulged that was the real object."
Two years later, in Sinclair v. United States, the Court considered investigation of private parties involved with officials under potential investigation for public corruption. In Sinclair, Harry Sinclair, the president of an oil company, appealed his conviction for refusing to answer a Senate committee's questions regarding his company's allegedly fraudulent lease on federal oil reserves at Teapot Dome in Wyoming. The Court, acknowledging individuals' "right to be exempt from all unauthorized, arbitrary or unreasonable inquiries and disclosures in respect of their personal and private affairs", nonetheless explained that because "t was a matter of concern to the United States, ... the transaction purporting to lease to the lands within the reserve cannot be said to be merely or principally... personal." The Court also dismissed the suggestion that the Senate was impermissibly conducting a criminal investigation. "It may be conceded that Congress is without authority to compel disclosures for the purpose of aiding the prosecution of pending suits," explained the Court, "but the authority of that body, directly or through its committees, to require pertinent disclosures in aid of its own constitutional power is not abridged because the information sought to be elicited may also be of use in such suits."
The Supreme Court reached similar conclusions in a number of other cases. In Barenblatt v. United States, the Court permitted Congress to punish contempt, when a person refused to answer questions while testifying under subpoena by the House Committee on Un-American Activities. The Court explained that although "Congress may not constitutionally require an individual to disclose his... private affairs except in relation to ... a valid legislative purpose", such a purpose was present. Congress's "wide power to legislate in the field of Communist activity... and to conduct appropriate investigations in aid thereof is hardly debatable," said the Court, and "o long as Congress acts in pursuance of its constitutional power, the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power."
Presidents have often been the subjects of Congress's legislative investigations. For example, in 1832, the House vested a select committee with subpoena power "to inquire whether an attempt was made by the late Secretary of War... fraudulently ... a contract for supplying rations" to Native Americans and to "further... inquire whether the President... had any knowledge of such attempted fraud, and whether he disapproved or approved of the same." In the 1990s, first the House and Senate Banking Committees and then a Senate special committee investigated President and Mrs. Clinton's involvement in the Whitewater land deal and related matters. The Senate had an enabling resolution; the House did not.
The Supreme Court has also explained that Congress has not only the power, but the duty, to investigate so it can inform the public of the operations of government:

House of Representatives: Impeachment

Impeachment proceedings may be requested by a member of the House of Representatives on his or her own initiative, either by presenting a list of the charges under oath or by asking for referral to the appropriate committee. The impeachment process may be requested by non-members. For example, when the Judicial Conference of the United States suggests a federal judge be impeached, a charge of actions constituting grounds for impeachment may come from a special prosecutor, the President, or state or territorial legislature, grand jury, or by petition. An impeachment proceeding formally begins with a resolution adopted by the full House of Representatives, which typically includes a referral to a House committee.
The type of impeachment resolution determines the committee to which it is referred. 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, and then to the Judiciary Committee. The House Committee on the Judiciary, by majority vote, will determine whether grounds for impeachment exist.

Articles of impeachment

Where the Committee finds grounds for impeachment, it will set forth specific allegations of misconduct in one or more articles of impeachment. The Impeachment Resolution, or Articles 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 for 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 discretion of the Speaker of the United States House of Representatives. These managers are roughly the equivalent of the prosecution or district attorney in a standard criminal trial. 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 then appear before the bar of the Senate and exhibit the articles of impeachment. After the reading of the charges, the managers return and make a verbal report to the House.

Senate trial

The proceedings unfold in the form of a trial, with the Senate having the right to call witnesses and each side having the right to perform cross-examinations. The House members, who are given the collective title of managers during the course of the trial, present the prosecution case, and the impeached official has the right to mount a defense with his or her own attorneys as well. Senators must also take an oath or affirmation that they will perform their duties honestly and with due diligence. After hearing the charges, the Senate usually deliberates in private. The Constitution requires a two-thirds supermajority to convict a person being impeached. The Senate enters judgment on its decision, whether that be to convict or acquit, and a copy of the judgment is filed with the Secretary of State. Upon conviction in the Senate, the official is automatically removed from office and may also be barred from holding future office. The trial is not an actual criminal proceeding and more closely resembles a civil service termination appeal in terms of the contemplated deprivation. Therefore, the removed official may still be liable to criminal prosecution under a subsequent criminal proceeding. The President may not grant a pardon in the impeachment case, but may in any resulting Federal criminal case.
Beginning in the 1980s with Harry E. Claiborne, the Senate began using "Impeachment Trial Committees" pursuant to Senate Rule XI. 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 this did not meet the constitutional requirement for their cases to be "tried by the Senate". Several impeached judges, including District Court Judge Walter Nixon, sought court intervention in their impeachment proceedings on these grounds. In Nixon v. United States, the Supreme Court determined that the federal judiciary could not review such proceedings, as matters related to impeachment trials are political questions and could not be resolved in the courts.
In theory at least, as President of the Senate, the Vice President of the United States could preside over his own impeachment, although legal theories suggest that allowing a defendant to be the judge in his own case would be a blatant conflict of interest. If the Vice President did not preside over an impeachment, the duties would fall to the President pro tempore of the Senate.
To convict an accused, "the concurrence of two thirds of the present" for at least one article is required. If there is no single charge commanding a "guilty" vote from two-thirds of the senators present, the defendant is acquitted and no punishment is imposed.

Result of conviction: removal, and with an additional Senate vote, disqualification

Conviction immediately removes the defendant from office. Following conviction, the Senate may vote to further punish the individual by barring him or her from holding future federal office, elected or appointed. As the threshold for disqualification is not explicitly mentioned in the Constitution, the Senate has taken the position that disqualification votes only require a simple majority rather than a two-thirds supermajority. The Senate has used disqualification sparingly, as only three individuals have been disqualified from holding future office.
Conviction does not extend to further punishment, for example, loss of pension. After conviction by the Senate, "the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law" in the regular federal or state courts.

History of federal constitutional impeachment

In the United Kingdom, impeachment was a procedure whereby a member of the House of Commons could accuse someone of a crime. If the Commons voted for the impeachment, a trial would then be held in the House of Lords. Unlike a bill of attainder, a law declaring a person guilty of a crime, impeachments did not require royal assent, so they could be used to remove troublesome officers of the Crown even if the monarch was trying to protect them.
The monarch, however, was above the law and could not be impeached, or indeed judged guilty of any crime. When King Charles I was tried before the Rump Parliament of the New Model Army in 1649 he denied that they had any right to legally indict him, their king, whose power was given by God and the laws of the country, saying: "no earthly power can justly call me in question as a delinquent... no learned lawyer will affirm that an impeachment can lie against the King." While the House of Commons pronounced him guilty and ordered his execution anyway, the jurisdictional issue tainted the proceedings.
With this example in mind, the delegates to the 1787 Constitutional Convention chose to include an impeachment procedure in Article II, Section4 of the Constitution which could be applied to any government official; they explicitly mentioned the President to ensure there would be no ambiguity. Opinions differed, however, as to the reasons Congress should be able to initiate an impeachment. Initial drafts listed only treason and bribery, but George Mason favored impeachment for "maladministration". James Madison argued that impeachment should only be for criminal behavior, arguing that a maladministration standard would effectively mean that the President would serve at the pleasure of the Senate. Thus the delegates adopted a compromise version allowing impeachment by the House for "treason, bribery and other high crimes and misdemeanors" and conviction by the Senate only with the concurrence of two-thirds of the senators present.

Formal federal impeachment investigations and results

The House of Representatives has initiated impeachment proceedings 62 times since 1789.
The House has impeached 20 federal officers. Of these:
Of the 20 impeachments by the House, two cases did not come to trial because the individuals had left office, seven were acquitted, and eight officials were convicted, all of whom were judges. One, former judge Alcee Hastings, was elected as a member of the United States House of Representatives after being removed from office. No President impeached by the House has been removed from office.
Additionally, an impeachment process against Richard Nixon was commenced, but not completed, as he resigned from office before the full House voted on the articles of impeachment. To date, no president or vice president has been removed from office by impeachment and conviction.
The following table lists federal officials for whom impeachment proceedings were instituted and referred to a committee of the House of Representatives. Numbered lines of the table reflect officials impeached by a majority vote of the House. Unnumbered lines are those officials for whom an impeachment proceeding was formally instituted, but ended when the Committee did not vote to recommend impeachment, the Committee recommended impeachment but the vote in the full House failed, or the official resigned or died before the full House vote.

Other impeachment attempts

There were unsuccessful attempts to initiate impeachment proceedings against John Tyler, George W. Bush, and Barack Obama.
One notable impeachment attempt that never reached the point of House resolution was an attempt to impeach Associate Justice William O. Douglas by then-House Minority Leader Gerald R. Ford. The Legislative Reference Service of the Library of Congress prepared a report as part of Ford's vetting for confirmation as Vice President in 1973.

Impeachment in the states

State legislatures can impeach state officials, including governors, in every state except Oregon. The court for the trial of impeachments may differ somewhat from the federal model—in New York, for instance, the Assembly impeaches, and the State Senate tries the case, but the members of the seven-judge New York State Court of Appeals sit with the senators as jurors as well. Impeachment and removal of governors has happened occasionally throughout the history of the United States, usually for corruption charges. A total of at least eleven U.S. state governors have faced an impeachment trial; a twelfth, Governor Lee Cruce of Oklahoma, escaped impeachment conviction by a single vote in 1912. Several others, most recently Missouri's Eric Greitens, have resigned rather than face impeachment, when events seemed to make it inevitable. The most recent impeachment of a state governor occurred on January 14, 2009, when the Illinois House of Representatives voted 117–1 to impeach Rod Blagojevich on corruption charges; he was subsequently removed from office and barred from holding future office by the Illinois Senate on January 29. He was the eighth U.S. state governor to be removed from office.
The procedure for impeachment, or removal, of local officials varies widely. For instance, in New York a mayor is removed directly by the governor "upon being heard" on charges—the law makes no further specification of what charges are necessary or what the governor must find in order to remove a mayor.
In 2018, the entire Supreme Court of Appeals of West Virginia was impeached, something that has been often threatened, but had never happened before.

State and territorial officials impeached

State governors

At least four state governors have been impeached and removed from office: