SCOTT S. BARKER, J.
This article discusses the constitutional procedure for impeachment, with a focus on removing a U.S. President from office. It covers the development of the procedure from its roots in English law.
Impeachment is a rare event; presidential impeachment is even rarer. In the 229 years of the American republic only two Presidents, Andrew Johnson and William Jefferson (Bill) Clinton, have been impeached by the House of Representatives. Neither was convicted by the Senate. It is now nearly 20 years since the Clinton impeachment, and recent events have generated a renewed interest in the topic. This article provides a basic overview of impeachment, with a focus on the constitutional process that applies to the removal of a U.S. President from office.
Development in England
Understanding impeachment under the U.S. Constitution must begin with a survey of the doctrine under English law as it existed at the time of our Constitutional Convention in 1787. The record of the Convention reveals substantial knowledge among the delegates of impeachment as it had developed in England.1 No less an authority than Alexander Hamilton acknowledged that the institution of impeachment in the Constitution was "borrowed" from Great Britain.2
Over the course of hundreds of years, impeachment developed as a mechanism for Parliament to remove ministers of the Crown, or others, whom it found were pursuing policies or engaging in acts offensive to the interests of the state. The king himself could not be removed, so attacks were made against agents of the Crown. Impeachment first appeared in England during the Good Parliament of 1376, when it was used as a means of initiating criminal proceedings.3 By 1399, during the reign of Henry IV, a set of procedures and precedent had been developed.4 Impeachment fell out of use after the mid- 15th century, but was revived in the 17th century when it was used repeatedly by Parliament to rein in Crown officials during the clash between Parliament and the Stuarts, who sought absolute power for the Crown.5 From 1621 to 1679, Parliament wielded impeachment against numerous high level ministers to the Crown, including the 1st Duke of Buckingham, the Earl of Stafford, Archbishop William Laud, the Earl of Clarendon, and Thomas Osborne, Earl of Danby; in the latter case it was decided that the king's pardon could not stop the process.6 Use of impeachment gradually waned in the 18th century, and once it was established in the early 19th century that government was beholden to Parliament, not the Crown, impeachment was no longer necessary.
Under English procedure, the House of Commons conducted a truncated trial (the defense was not allowed to present testimony) to determine if an impeachable offense had occurred. If the answer was yes, the Commons would issue articles of impeachment and the matter was transferred to the House of Lords. Another trial was held there at which the defense also presented its case. The Lords had the power to convict and to assess punishment, which was not limited to removal from office, but could include fines, forfeiture, imprisonment, and rarely, death. All citizens, except members of the royal family, were subject to impeachment. This included members of Parliament.7 By 1769, it was proclaimed that impeachment was the "chief institution for the preservation of government."8
Although the primary use of impeachment was to prosecute crimes against Crown ministers who were otherwise beyond the reach of the law, the grounds for impeachment in England were broad and varied, going beyond criminal behavior. The term "high crimes and misdemeanors" was first clearly applied in the 1386 trial of Michael de la Pole, Earl of Suffolk, who was accused of a "host of impeachable offenses, including the 'appointment of incompetent officers and advising the King to grant liberties and privileges to certain persons to the hindrance of the due execution of laws.'"9 Under English practice, impeachment was for political crimes that injured the state. It was injury to the state that distinguished "high crimes and misdemeanors" from an ordinary misdemeanor.10
The U.S. Constitution's Framework
Three primary attributes of the English practice shaped the impeachment process under the U.S. Constitution: the bicameral procedure under which the House of Commons would consider evidence to determine if there were sufficient grounds for issuing articles of impeachment, after which the House of Lords would try the accused, determine guilt or innocence, and assess punishment if there was a conviction; the use of impeachment as a check on the power of the Crown when it was perceived to be abusing the interests of the king's subjects, often as expressed in acts of Parliament;11 and the categorization of impeachable offenses under the rubric of "high crimes and misdemeanors" to include both criminal and non-criminal conduct in the discharge of official duties.
Impeachment by the House and Trial by the Senate
The imp eachment procedure established by the U. S. Constitution roughly mimics the respective roles of the lower and upper legislative chambers in the British process. As with the House of Commons, impeachment is committed to the assembly that is more directly tied to the people, the House of Representatives,12 which "shall have the sole Power of Impeachment."13 This is an official charge against the person being impeached, taking the form of "articles of impeachment," approved by a majority of the House. The Senate, like the House of Lords, then conducts the trial, with the senators under oath.14 The Constitution expressly excludes trial by jury for impeachment.15 The Senate sits as both the trier of fact and the decider of the law. When the President is being tried, the Chief Justice of the United States presides; this is the only role assigned to the judiciary in the impeachment/trial process. Unlike the House of Lords, where a simple majority could convict, in the Senate conviction requires a "super majority" of two-thirds of the members present.17This requirement was included as an additional protection of the President from legislative encroachment on his executive powers.
Significantly, although there were advocates at the Constitutional Convention for involving the judiciary in impeachment, that view was rejected, and the Constitution allocates no role to the judiciary in the process. The 1993 U.S. Supreme Court decision in Nixon v. United States made this clear. The petitioner was Walter L. Nixon, a former chief judge of the U.S. District Court for the Southern District of Mississippi. He was convicted by a jury of two counts of making false statements before a grand jury impaneled as part of an investigation into reports that Nixon had accepted a gratuity from a Mississippi businessman in exchange for asking a local district attorney to halt the prosecution of the businessman's son. He was sentenced to prison.
However, Nixon refused to resign his position as a federal judge and continued to collect his federal paycheck during his incarceration. Impeachment was necessary to terminate this unseemly use of taxpayers' money. The House sent three articles of impeachment to the Senate, which invoked a Senate rule under which a committee of senators was appointed to receive evidence and take testimony. The Senate Committee held four days of testimony from 10 witnesses, including Nixon himself The Committee presented to the full Senate a transcript of the proceedings before the committee and a report stating the uncontested facts and summarizing the evidence on the contested facts. Nixon and the House impeachment managers submitted briefs to the full Senate and delivered arguments from the Senate floor during the three hours set aside for oral argument in front of that body. The full Senate voted to convict Nixon.
Nixon argued that, under the Constitution, the trial must be conducted in its entirety before the Senate sitting as a committee of the whole.19 Because that had not happened, he asked the trial court to rule his impeachment conviction invalid and to restore his salary and other privileges.20 Both lower courts rejected this argument, as did the Supreme Court. In a deferential opinion for the court, Chief Justice Rehnquist affirmed the circuit court, concluding that there was no "textual" basis for limiting the Senate's discretion in deciding what procedure it would use to fulfill its obligation to "try" the official, in this case a judge, on the articles of impeachment delivered to the Senate by the House.21
The Chief Justice pointed out that the Framers had considered...