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A Primer on Constitutional Impeachment

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A Primer on Constitutional Impeachment Social Education 82(6), pp. 355–360 ©2018 National Council for the Social Studies Lessons on the Law A Primer on Constitutional Impeachment Steven D. Schwinn We’re hearing more and more these days about impeachment. increasingly seems to be a tool that at least some are willing to Whether it’s talk about impeaching President Trump for mat- use to remove officials from office. ters arising out of “Russiagate,” talk about impeaching Justice But impeachment is an extraordinary measure in a democracy. Kavanaugh for misrepresenting material facts to the Senate It means that a legislature can remove officials from office, and Judiciary Committee in his confirmation hearing, or even talk bar them from future service, outside the ordinary electoral about impeaching the entire West Virginia Supreme Court process (and therefore at least potentially against the will of the for corruption and improper use of state funds, impeachment people). Misused, impeachment could be an anti-democratic tool A road sign in Decatur, Illinois, in 1963 demanded the impeachment of U.S. Chief Justice Earl Warren, who supported racial desegregation in public schools. (AP Photo) November/December 2018 355 that an activist legislature uses to unseat And when the House has lowered the bar the courts. In contrast, there’s widespread duly elected or appointed officials for raw on “high crimes and misdemeanors” too agreement that any other federal govern- political reasons. All of us—Republican, far, the Senate has failed to convict and ment official could be charged and con- Democrat, independent, or other— remove the official from office. victed of a crime while in office.) should worry about this. (As I tell my So with all this recent talk about The U.S. Constitution provides for students, make your constitutional com- impeachment, it might be useful to impeachment of federal officers, and mitments, including commitments about explore what it means, how it works, state constitutions provide for impeach- constitutional impeachment, based not on where it comes from, and whether it has ment of state officers. Federal impeach- your party preference, but as if the par- any reasonable application to current ment and state impeachment are entirely ties were switched. Remember what now- officials. This article seeks to do just that. distinct processes (even if they operate Justice Kavanaugh recently reminded us, Let’s start with some basics. similarly at each level of government). “What goes around [in politics], comes That is, Congress plays no role in the around.”) So What is Impeachment, Anyway? impeachment of state officers, and states At the same time, impeachment is an In short, impeachment is a political play no role in the impeachment of fed- important legislative check on the execu- device that Congress can use to remove eral officers. Still, an impeached federal tive and judicial branches, hard-wired government officials from their office— official might face subsequent criminal into our checks-and-balances system, in essence, to fire officials. Impeachment charges under state law, if the impeach- right along with other checks and balances also allows Congress to bar a removed able offense also constituted a violation like the presidential veto. The Framers official from future service in the fed- of state criminal law. (This could work designed impeachment to allow Congress eral government. (Article I, Section 4, the other way, too: impeached state to check an independent and powerful which sets out the penalties for impeach- officials could face subsequent criminal presidency, which, they feared, could, in ment, says that “[j]udgment in Cases of charges under federal law, if they com- the wrong hands, run amok. As a result, Impeachment shall not extend further mitted a federal crime.) used judiciously, impeachment can pre- than to removal from Office, and dis- serve the delicate balance between our qualification to hold and enjoy any How Does it Work? three branches of government. We should Office of honor.”) While we think and talk about impeach- celebrate this more cautious, careful use In this way, impeachment is a politi- ment as a one-step process (impeach- of impeachment, or at least accept it as cal process, not a criminal one; and ment as removal), it’s actually a two- legitimate. After all, it’s part of our con- impeachment itself comes with no step process under our Constitution stitutional system. criminal penalties. (Again: impeach- (impeachment, then removal). Thankfully, history, constitutional ment simply means removal from office, The first step is (confusingly) called design, and congressional practice all and a possible bar on future service.) “impeachment.” This happens in the support a more cautious approach. As to Nevertheless, an impeached official House of Representatives. Article I, history, the Framers intended an impeach- may be subsequently prosecuted for Section 2, of the Constitution says that ment power that would effectively check crimes that arose out of impeachable the House “shall have the sole power of the president, but not allow Congress a offenses. Article I, Section 4, of the impeachment,” meaning that the House, roving power to remove executive officials Constitution says that “the Party con- and the House alone, can initiate the for mere political reasons. As to design, victed shall nevertheless be liable and impeachment process. the Framers wrote a two-part impeach- subject to Indictment, Trial, Judgment, The impeachment process starts in ment process (impeachment in the House, and Punishment according to law.” For the House Judiciary Committee. This trial in the Senate) so that Congress example, if Congress impeaches an offi- Committee drafts articles of impeach- couldn’t abuse impeachment to remove cial for providing false information to ment. The articles are a list of reasons officials for mere political reasons (at least federal investigators (and thus removes why the individual should be impeached, not without a majority in the House and a the official from office), the Department kind of like a list of charges against a separate super-majority in the Senate). As of Justice could subsequently charge criminal defendant (but remember that to congressional practice, the House has the individual of the crime of perjury. If impeachment is a political, not criminal, historically limited impeachment to the convicted, the individual could receive process). The Committee advances the standard set in the Constitution, including a criminal punishment. (There’s a hot articles to the full House, which votes on only serious, or significant, matters (like dispute in constitutional law whether the the articles individually (a bare majority corruption, abuse of power, improper president could be charged and convicted prevails) and forwards the final articles behavior in office, and perjury and mis- of a crime committed while in office. to the Senate. leading statements) that can be considered The majority position says no. Still, this The second step is called the trial. to be “high crimes and misdemeanors.” remains an open question, untested in This happens in the Senate. Article I, Social Education 356 Section 1, of the Constitution spells out of the United States.” (While we don’t I, Section 5, each House of Congress the process: have a precise definition of “civil offi- may “punish its Members for disorderly The Senate shall have the sole Power cers of the United States,” this probably Behavior, and, with the Concurrence to try all Impeachments. When sitting for includes a fairly wide and deep field of of two thirds, expel a Member.” Still, that Purpose, they shall be on Oath or those serving in the executive branch.) instead of punishing and expelling, Affirmation. When the President of the Article II says that any of these officers Congress could impeach a member United States is tried, the Chief Justice can be impeached. under the same standard that applies shall preside: And no Person shall be Impeachment also applies to fed- to executive and judicial officials (dis- convicted without the Concurrence of eral judges. Under Article III of the cussed below). two thirds of the Members present. Constitution, federal judges “shall hold Since the first impeachment—a pro- their Offices during good Behavior”—a cess that ran from 1797 to 1799—the Because the Senate has many members, standard that, by tradition, means a life- House of Representatives has impeached the trial can’t operate exactly like a crimi- time appointment. Still, Congress can 19 individuals. Of these, two were presi- nal trial. (Imagine a courtroom with 100 impeach a federal judge, even a Supreme dents—Andrew Johnson (impeached on judges!) Instead, representatives from Court justice. The Supreme Court has February 24, 1868) and Bill Clinton the House present the articles to the full assumed, but not decided, that the same (impeached on December 19, 1998), Senate, the impeached individual (or his standard of impeachment that applies both impeached in the House, but or her representative) presents a defense, to executive branch officials (discussed acquitted in the Senate. (President and senators debate whether to convict further on) also applies to federal judges. Richard M. Nixon was not impeached. the individual, much like they might (In other words, federal judges receive Instead, he resigned as the House pre- debate ordinary legislation. In contrast no special protection from impeachment pared to impeach him.) One was a cabi- to impeachment (which requires a bare because of the “good Behavior” standard net member, Secretary of War William majority in the House), conviction in the for continued service.) W. Belknap, impeached in the House Senate requires “[c]oncurrence of two Finally, impeachment can even apply on March 2, 1876, but acquitted in thirds of the Members present.” to members of Congress. Under Article the Senate. Fifteen were federal judges Before Congress can remove an indi- vidual from office or bar future service, both processes must run their course: The House has to impeach, and the Senate has to convict.
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