IMPEACHMENT (Update)

The power of impeachment is Congress's ultimate constitutional check against misconduct by executive and judicial branch officers of the United States. Article II, section 4 of the Constitution provides a single standard governing impeachment and removal of all such officers: "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 Misdemeanors." Article I of the Constitution gives to the U.S. house of representatives "the sole Power of Impeachment," meaning the power to charge an officer with having committed such an offense, and to the U.S. senate "the sole Power to try all Impeachments." The Senate's power to try impeachments is subject to just three procedural limitations: When sitting as a court of impeachment, the senators "shall be on Oath or Affirmation"; when the President of the United States is tried, the chief justice (rather than the Vice President) is the presiding officer of the Senate; and a two-thirds majority of senators is necessary to convict the accused. Article I further specifies 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," but that "the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."

The Constitution's impeachment provisions have produced much scholarly and political debate, especially in recent years by virtue of President william j. clinton's impeachment, trial, and acquittal in 1998 and 1999. (See articles of impeachment of william j. clinton.) The most important question is the meaning of the term "high Crimes and Misdemeanors" for which officials may be impeached and removed. The best answer, confirmed by recent and perennial debates over the point, is that the term simply does not have a clear, fixed, or determinate meaning, and that application of this general standard was deliberately committed to the judgment of Congress in making the decision whether to impeach (by the House) and convict (by the Senate).

As alexander hamilton wrote in federalist No. 65 in explaining the justification for vesting the impeachment power in Congress rather than in the courts or some other body, "the nature of the proceeding" is such that it "can never be tied down by such strict rules, either in the delineation of the offence by the prosecutors, or in the construction of it by the Judges, as in common cases serve to limit the discretion of courts in favor of personal security." Rather, the Constitution recognizes "[t]he awful discretion, which a court of impeachments must have, to doom to honor or to infamy.…" The Supreme Court has apparently endorsed this view, ruling unanimously in nixon v. united states (1993), involving the impeachment of federal judge Walter Nixon, that the Constitution's assignment of "sole Power" to impeach and try to the House and Senate, respectively, constitutes a textual commitment of virtually all impeachment questions to the judgment of these bodies, where the Constitution does not provide clear answers to the contrary.

Congress's constitutional power to interpret and apply the "high Crimes and Misdemeanors" standard is broad, but not limitless. Certain guidelines are clear from history or implicit in the structure of the Constitution as a whole. First, it is clear that misconduct need not be a crime in the ordinary sense of the term in order to justify impeachment and removal, but may include "political crimes" in the sense of perceived offenses against the Constitution or the People—such as violation of one's oath of office or breach of a public trust. Hamilton in Federalist No. 65, for example, said that proper grounds for impeachment and removal included "offenses which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust." Such offenses, Hamilton wrote, constitute "injuries done immediately to the society itself."

At the same time, however, it is implicit in our constitutional structure of separate, independent legislative, executive, and judicial branches that impeachment must be more than simply a policy vote of "no confidence" in the executive, leading to the fall of an administration (akin to parliamentary systems of government) or, in the case of judges, attempted removal from office because of disapproval of a judge's rulings made in good faith. The narrow impeachment–acquittal of President andrew johnson by a reconstruction Congress strongly opposed to Johnson's policies, but with flimsy charges of "high Crimes and Misdemeanors," has been taken by many as a precedent against impeachment even for strongly felt reasons of policy believed to be of vital concern to the future of the nation. The impeachment–acquittal of Justice samuel chase, early in our nation's history, similarly has been taken by many as a precedent against impeachment of judges merely because of disagreement (however intense and perhaps justified) with their judgments and demeanor.

While conduct need not be a crime in order to constitute an impeachable offense, it is clear that criminal acts in the ordinary sense of the term may themselves be "high Crimes and Misdemeanors" sufficient to warrant removal from office, if Congress judges them to be serious enough offenses. The misconduct need not be a felony—high "Misdemeanors" fall within the standard—but the commission of felonies is a classic case in which the Constitution contemplates, and Congress's practice over the centuries confirms, that federal officers should be impeached and removed. (Moreover, Congress is not bound by the "proof beyond a reasonable doubt" standard that applies in a criminal prosecution in which an individual may be imprisoned or fined if found guilty; indeed, Congress has impeached and removed a federal judge, Alcee Hastings, who had been acquitted of essentially the same charges in a federal criminal prosecution.)

Thus, federal judges have been removed for bribery (Judge Hastings, in 1989), tax evasion (Judge Harry Claiborne, in 1986), and giving false testimony before a federal grand jury (Judge Nixon, in 1989). President richard m. nixon resigned in 1974 rather than face near-certain impeachment (and probable conviction) for obstruction of justice. President Clinton was impeached for perjury and obstruction of justice, both serious federal felonies carrying substantial prison terms, but acquitted largely on the basis of votes of senators of his own party who concluded either that the charges were not proved or that such misconduct, even if proved, did not constitute "high Crimes and Misdemeanors."

Once again, as the Clinton case confirms, the question of what is sufficiently "high" criminal misconduct—sufficiently serious, important, weighty—is committed to the "awful discretion" (in Hamilton's terms) of Congress. Congress may exercise that judgment well or badly and need not be consistent or principled in its decisions. It seems highly likely, for example, that Congress in 1974 would have judged obstruction of justice to be an impeachable offense in the case of President Nixon (a scholarly report of the House Judiciary Committee indeed had so concluded), but many senators in 1999 concluded that it was not such an offense in the case of President Clinton.

One possible ground for distinguishing the Clinton and Nixon cases, advanced by Clinton's defenders (including numerous academics), is that Clinton's misconduct was of a "private" nature rather than an abuse of his office and that "private" crimes are not included within the meaning of "high Crimes and Misdemeanors." There must exist a nexus, the argument goes, between the criminal act and the official's public office. The text of the Constitution does not support this distinction, however, and Hamilton's argument that the impeachment power characteristically is directed at breaches of a public trust does not imply that the power may not be exercised to remove an official for crimes for which any citizen guilty of such offense might well be sent to prison. "Bribery," identified by the Constitution as an offense warranting removal from office, need not involve any use of a judge's or executive officer's official capacity. Other private-capacity corrupt conduct, like tax evasion, has served as a basis for impeachment and removal of federal judges (for example, Judge Claiborne in 1986). Clinton's prosecutors, and the fifty senators who voted to convict him, additionally maintained that there is no such thing as "private" perjury or obstruction of justice; that such crimes committed by the chief law enforcement officer of the nation do relate to the performance of his duties; that perjury is strongly akin to "Bribery," which is explicitly a ground for removal; and that Clinton's misconduct in any event involved a violation of his oath of office and a breach of trust with the People. On this account, the commission of serious crimes is itself a breach of the public trust.

There is a further flaw with the nexus-to-office limitation. Taken seriously, it would require the absurdity of permitting a federal officer to remain in office following commission of a "private" first-degree murder if that homicide was unrelated to the performance of his or her office. In an attempt to avoid this problem, a letter signed by law professors sympathetic to President Clinton argued that private criminal conduct does not warrant impeachment unless the crime is a "heinous" one. Again, however, the "heinous" standard does not appear in the Constitution, nor is it mentioned in the Framers' discussions and debates over impeachment. The standard chosen was "high" crimes and misdemeanors. It has been plausibly argued that "high" in this context denotes the rank or office of the alleged miscreant, but the better answer is that it creates a general standard of seriousness or importance (as judged by Congress). A crime can be serious without being "heinous." The Constitution clearly imposes no separate "heinousness" limitation on the impeachment power.

A final argument advanced during the Clinton case was that, for purposes of impeachment, the President should be held to a lower standard of conduct than federal judges and other federal officers; that is, that the "height" of "high" crimes needs to be higher in the case of the President before Congress is constitutionally justified in removing him from office. There is no basis for this argument in the text of the Constitution. Article III's provision that judges serve "during good behavior" is a description of judges' tenure (for life), not a substitute for Article II's statement of the impeachment–removal standard applicable to "all civil officers of the United States," a term that embraces Article III judges. While removal of a sitting President is obviously a more serious matter than removal of a single federal judge, this political reality does not alter the meaning of the Constitution's terms. Nor does the claim that removal of a President would "upset" the result of a national election change the Constitution's standard. Presidential impeachment will nearly always seek to remove an elected leader; the Framers, in creating an impeachment standard that explicitly mentions the President and Vice President, obviously contemplated such a possibility.

Though the Constitution does not require it, a practical necessity for removal of the President is that he both has committed serious offenses and lost popular political support, extending to members of his own political party in the Senate. Experience has shown that the two-thirds majority requirement makes it extremely difficult to convict a sitting President, regardless of the merits of the charges. As the acquittal of President Johnson shows, even large partisan majorities strongly opposed to an unpopular President on policy grounds encounter principled defections of senators opposed to a removal that is based on constitutionally dubious grounds. Conversely, as the acquittal of President Clinton shows, a popular President retaining the unified support of senators of his own party may avoid removal from office even when few (in either party) doubt that he has committed serious criminal offenses. (President Nixon resigned, rather than face impeachment, once it became clear that he had lost the support even of his own political party.)

A related issue that arose in the Clinton impeachment is whether Congress has the power to punish presidential misconduct by "censure." Censure, in the form of a resolution of disapproval (without further penalty), is neither mentioned in nor expressly prohibited by the Constitution. Whatever its propriety, censure is a remedy outside the impeachment process. The Constitution prescribes that conviction carries a mandatory penalty of removal from office (Article II, section 4), and a discretionary penalty of disqualification from future office (Article I, section 3), but forbids Congress from imposing any "further" punishment—presumably including supposedly "lesser" punishments like fines—with the clarification that the party convicted is nonetheless subject to criminal prosecution in the courts. A "censure" consisting of mere words may or may not be thought meaningful punishment, but in any event such expression could be accomplished outside the impeachment process as a matter of collective speech of senators and representatives, and thus is permissible. (Congress has no analogous power to fine or otherwise punish a President outside the impeachment process.)

The proviso that "the Party convicted shall, nevertheless, be subject to Indictment, Trial, Judgment and Punishment, according to Law" has been thought by many to imply that the President must be removed from office before he may be indicted. But if this is so, it must be because of some other constitutional provision, not the punishment proviso, which in form merely holds that Congress's judgment is separate from and not preclusive of criminal prosecution. The proviso does not dictate that impeachment precede indictment; prosecution has preceded impeachment in the case of several removed federal judges. It is probably the case that the Framers expected, in the case of the President at least, that removal would precede prosecution, for the simple reason that federal prosecutors are subordinates of the President within the executive branch and might be expected not to indict the Chief Executive. State prosecutions of a sitting President or other federal officer, although also theoretically possible, may not be practically enforceable without federal judicial or congressional approval (through impeachment). But where an " independent counsel " serves as federal prosecutor acting on behalf of the executive branch (an arrangement constitutionally dubious in its own right, but upheld by the Supreme Court in 1988 in the case of Morrison v. Olson), or where a federal prosecutor is not otherwise countermanded by the President, the Constitution would not seem to bar those stages of a criminal case—indictment, trial, entry of judgment—that do not effect the equivalent of removal of a President from office (arrest, imprisonment). Removal is the exclusive province of impeachment. But otherwise the President is not above the requirements and burdens of the law that apply to any other citizen, taking into account the needs of the nation, as the Supreme Court has twice held, unanimously, in different contexts: united states v. nixon (1974) (the President is not immune to subpoenas for evidence in a federal criminal case) and clinton v. jones (1997) (the President is not immune from private civil litigation concerning his personal conduct).

It has been suggested that the Article I, section 3 mandate of removal upon conviction for "high Crimes and Misdemeanors" does not necessarily imply that Congress lacks power to impeach and, in the Senate's discretion, remove or impose some lesser punishment (like censure) for perceived lesser offenses. Otherwise, the argument goes, what mechanism would have existed (prior to adoption of the twenty-fifth amendment in 1967) for removing an incapacitated or incompetent President? The argument has some serious problems, however. First, it imports into the word "impeachment" a broader power than appears supported by the language of the various clauses of the Constitution, and one that would seem inconsistent with other structural provisions of the Constitution. For example, Congress could, under this view, remove a President for vetoing a law more readily than it could override his veto—which requires a two-thirds majority of both houses, not just the Senate. Such a power tends too much toward creating a quasi-parliamentary regime at odds with the Framers' design. Had such a sweeping discretionary power been intended, it seems probable it would have been set forth far more clearly, especially given the extensive treatment of impeachment in fact contained in the Constitution's terms. Moreover, the breadth of the term "high Crimes and Misdemeanors" is already such as to permit impeachment—but, importantly, require removal upon conviction—for virtually any serious misconduct, including noncriminal misconduct, that Congress judges sufficiently serious to warrant such a remedy. At the same time, the mandatory punishment of removal deters unserious impeachments and creation by Congress of graduated penalties for perceived lesser political offenses, sapping the independence of the executive branch from Congress.

Finally, the apparent point-of-departure for this argument—the problem of presidential incapacity—is exactly the reason the Twenty-Fifth Amendment was adopted. The amendment filled a gap that was indeed left open by the impeachment power, and for which We the People felt further provision was needed. This highlights what should be a constitutional truism: The Constitution is not perfect and does not perfectly anticipate and address all of today's problems. But that does not mean that the Constitution's impeachment clauses (or any other clauses) should be distorted to suit the perceived needs of the moment. If the need for constitutional change is sufficiently great, the amendment process exists to address it.

Indeed, with respect to the power of impeachment, one can detect an embarrassing glitch that begs for a remedy: While the Chief Justice, rather than the Vice President, serves as presiding officer of the Senate when the President is tried (to remove obvious conflict-of-interest problems), no such substitution is prescribed in the case when the Vice President is put on trial, leaving open the prospect that the Vice President could preside at his own impeachment trial!

While imperfect in theory and even less perfect in practice, the Constitution's impeachment provisions provide a vital constitutional check against lawlessness and misconduct by executive and judicial officers—if Congress is prepared to employ that check in a serious manner. thomas jefferson bemoaned the impeachment power as exercised in his day as a mere "scarecrow." But Jefferson's remark, as with the trials of Presidents Johnson and Clinton, simply highlights the fact that the application of the constitutional power of impeachment depends on the judgment of Congress and thus, for good or for ill, on the politics of the moment.

Michael Stokes Paulsen
(2000)

Bibliography

Berger, Raoul 1973 Impeachment: The Constitutional Problems. Cambridge, Mass.: Harvard University Press.

Black, Charles Lund 1974 Impeachment: A Handbook. New Haven, Conn.: Yale University Press.

Gerhardt, Michael J. 1996 The Federal Impeachment Process: A Constitutional and Historical Analysis. Princeton, N.J.: Princeton University Press.

Hamilton, Alexander;J ay, John; and Madison, James 1982 The Federalist Papers, Nos. 65 and 66. New York: Bantam Books.

Paulsen, Michael Stokes 1997 Someone Should Have Told Spiro Agnew. Constitutional Commentary 14:245–246.

——1999 Nixon Now: The Courts and the Presidency After Twenty-Five Years. Minnesota Law Review 83:1337–1404.

Rehnquist, William H. 1992 Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson. New York: Wm. Morrow.

U.S. Congress 1974 Constitutional Grounds for Presidential Impeachment. Report prepared by the Staff of the Impeachment Inquiry of the House. 93rd Congress, 2nd Session. Committee Print.

——1999 Committee on the Judiciary: Impeachment. [Documentation of the House Judiciary Committee hearings and of the House management of the impeachment trial of President William Jefferson Clinton.] <http://www.house.gov/judiciary/icreport.htm>.

——1999 Impeachment of President William Jefferson Clinton. Senate Document 106-3. <http://www.access.gpo.gov/congress/senate/sd106-3.html>.

——1999 Independent Counsel's Report to the United States House of Representatives. House Document 105-310. <http://www.access.gpo.gov/congress/icreport>.