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 individual from office or bar future service, both processes must run their course: The House has to impeach, and the Senate has to convict. If the House impeaches, but the Senate fails to convict, the individual remains in office. Again: the only penalty for impeachment is removal from office and possible bar from future service in an office. Impeachment is not a criminal process, and no criminal penalty attaches.

Who Can Be Impeached? We often think about impeachment only as applied to the president and vice president. But in truth, impeachment applies much more broadly. To start, impeachment applies to all executive branch officers. Article II, Section 4, of the Constitution says that “[t]he President, vice president, and all civil officers of the United States, shall be removed from office on impeachment....” This means that impeachment applies to all civil executive branch officials: the president, the vice president, cabi- net officers, and all other “civil officers

November/December 2018 357 (some convicted in the Senate, others the president. Mason proposed add- reaches only serious, or significant, mat- acquitted), including just one Supreme ing “maladministration,” a ground for ters, and does allow Congress to unduly Court Justice, Samuel Chase, impeached impeachment then in six of the thirteen interfere with the president’s routine on March 12, 1804, but acquitted in state constitutions, including Mason’s administration of the executive branch. the Senate. Finally, one was a member (and James Madison’s) own state of Congress’s most recent impeach- of Congress, Senator William Blount, Virginia, and drawn from English par- ment, the 2010 impeachment of Judge impeached in the House on July 7, 1797, liamentary impeachment. Madison G. Thomas Porteous, Jr., is illustrative. but with charges dismissed in the Senate, objected that “maladministration” was The House issued articles of impeach- because the Senate by that time had too vague a term; he moved to substitute ment against Judge Porteous for corrup- expelled him. (The House compiled a “high crimes and misdemeanors agst. the tion, making false statements regarding list of these impeachments, the basis for State,” a phrase also borrowed in part that corruption, and judicial misconduct. them, the results in the Senate, and links from the English impeachment process, Article I cited Judge Porteous’s “corrupt to further resources for each impeach- but that was perhaps more circumscribed. financial relationship” with a law firm ment, which is accessible at http://history. The Convention adopted Madison’s lan- representing a party before him, his house.gov/Institution/Impeachment/ guage by a vote of eight states to three, failure to recuse himself from the case, Impeachment-List/.) without further debate. and his “intentionally misleading state- This history suggests that the Framers ments” about his corrupt relationship at What’s the Standard for designed the standard “high crimes and the recusal hearing. Article II cited Judge Impeachment? misdemeanors” to give Congress more Porteous’s “longstanding pattern of cor- Article II, Section 4, of the Constitution power to check the president than it rupt conduct,” including conduct before says that “[t]he President, Vice President would have under the mere “treason and he was appointed to the federal bench. and all civil Officers of the United bribery” standard, but not so much as Article III cited Judge Porteous’s “pattern States, shall be removed from Office on to determine only for itself whether the of conduct inconsistent with the trust Impeachment for, and Conviction of, president engaged in “maladministration.” and confidence placed in him as a fed- Treason, Bribery, or other high Crimes (This kind of second-guessing on the part eral judge by knowingly and intention- and Misdemeanors.” “Treason” and of Congress could raise separation-of- ally making material false statements and “bribery” may be clear, but what are powers problems, in that it would invite representations under penalty of perjury “other high Crimes and Misdemeanors”? Congress to judge whether presidents related to his personal bankruptcy filing The truth is that we just don’t know, were effectively doing their job.) In and by repeatedly violating a court order at least not with any determinacy. That’s other words, “high crimes and misde- in his bankruptcy case.” (More specific because the courts have declined to rule meanors” means serious, or significant, details are in the articles themselves, on challenges to impeachments, and we crimes above and beyond “treason” and available at congress.gov, here: https:// therefore have no judicial interpreta- “bribery.” But the phrase is not a roving congress.gov/congressional-report/111th- tion of this clause. Instead, the courts license for Congress to second-guess the congress/house-report/427/1?r=297.) have left the process and the standard president on all aspects of the president’s The Senate convicted Judge Porteous, to Congress. exercise of executive authority. removed him from office, and disquali- Still, the history of the clause gives Congressional practice largely bears fied him from holding future office. us some clues. The Framers addressed this understanding out. The House has All this is to say that while we don’t this standard for impeachment late in issued articles of impeachment for such know precisely what constitutes “high the Constitutional Convention, after significant matters as corruption, abuse crimes and misdemeanors,” we do know the Convention settled on the powers of power, improper behavior while in that these are serious, or significant, of the president. They tried to balance office, and perjury or misleading state- matters. While the House has substan- the need for this additional check on ments (especially under oath), but not tial leeway in defining “high crimes the president against the separation-of- for mere “maladministration.” Moreover, and misdemeanors,” that leeway is not powers concern that Congress might use when the House’s articles of impeach- unfettered. By history and tradition, impeachment to unduly interfere with ment seemed to lower the standard for these matters must be serious, or sig- the president’s executive authority. “high crimes and misdemeanors” (as in nificant. Corruption, abuse of power, The draft of the Constitution provided President Clinton’s impeachment, for improper behavior while in office, and for removal upon impeachment and example), the Senate has failed to con- perjury and false statements have all conviction of the president for “treason vict. This built-in check on impeach- constituted “high crimes and misde- and bribery.” George Mason objected ment—the Senate’s sole power to try and meanors.” Other similarly significant that this was too limited and would not convict—helps ensure that the “high crimes may, too. sufficiently allow the Congress to check crimes and misdemeanors” standard

Social Education 358 Can a Removed Official Appeal the the crown’s ministers to account—a included the impeachment power as a Impeachment? parliamentary check on the king. In its legislative check on the executive. In short, no. The Supreme Court held early history, impeachment had been The Framers picked up on this history in Nixon v. United States, 506 U.S. 224 called “the most powerful weapon in and considered impeachment as a way (1993), that the impeachment process is the political armory, short of civil war.” to check the new, powerful, and inde- a nonjusticiable political question. (The By the time the Framers assembled pendent president. (Remember that the case involved the impeachment of Judge in Philadelphia in 1787, the English Articles of Confederation did not include Walter Nixon, not the more famous parliament had used impeachment, an independent executive.) Once they President Nixon.) This means that the including the phrase “high Crimes established the powers of the president, courts cannot hear appeals from, or other and Misdemeanors,” for over 400 the Framers turned to impeachment to challenges to, an impeachment process, years. Pre-1787 state constitutions also check those powers, lest, in the wrong because under the Constitution, impeachment is a matter solely for Congress. (This is why we don’t have a judicial definition of “high crimes and misdemeanors.”) In that case, Judge Walter Nixon challenged his impeachment trial in the Senate, arguing that the full Senate improperly delegated fact-finding in the matter to a Senate committee. (Judge Nixon argued that the Senate’s impeachment clause, which says “the Senate shall have the sole Power to try all Impeachments,” required the full Senate, not a committee, to conduct the entire trial.) The Supreme Court dismissed the case, holding that impeachment is a nonjusticiable political question, and leav- ing the matter to Congress. As a result, the courts won’t hear appeals or other challenges to the impeachment process, either in the House or the Senate. Impeachment is, and remains, a pure political, not legal, process. As a practical matter, this gives wide berth to Congress in setting the proce- dures, establishing the standards, and Student Video Contest conducting the process of impeachment. Engage your students, grades 6-12, But again, the two-part process man- dated by the Constitution (impeach- with current global issues through ﬁlmmaking. ment in the House, trial in the Senate), Our annual international student video contest launches in September along with the history and tradition and runs through late February. This year's topics are: Sustainable of impeachment, help to ensure that Congress (as a whole) doesn’t operate Resource Use, Preserving Biodiversity, and Protecting Human Rights. too far outside of reasonable bounds Great for classes on Social Studies, APHG, Global Studies, Media Literacy in conducting impeachment. and more! For more details about the contest including information about prizes visit our website. Where Does Impeachment Come From? As mentioned previously, impeachment comes from the English practice of parliamentary impeachment. The English www.worldof7billion.org parliament used this process to hold

November/December 2018 359 hands, they run roughshod over the pow- Congress has used impeachment only the Senate can convict and remove from ers of Congress. 18 times in our history to check federal office only on a two-thirds vote.) In considering impeachment, the officials. The House has issued articles Next, both parties worry (quite rightly) Framers debated where this power should of impeachment only in serious, or sig- about how impeachment will play to the lie. Both the Virginia Plan and the New nificant, matters like corruption, abuse of electorate, and to their chances at the Jersey Plan proposed putting the power power, and perjury. And when the House polls. These worries are only height- of impeachment in the federal judiciary. has (actually or arguably) lowered the ened in the relatively recent wake of the Madison and the Committee of Detail bar on “high crimes and misdemeanors,” Clinton impeachment, where House proposed putting it more particularly in the Senate has failed to convict, realizing Republicans were seen as overplaying the Supreme Court. But the delegates the Framers’ vision that the two-part pro- their hand, failed to gain conviction in rejected these proposals. For one thing, cess would itself operate as a check on the Senate, and faced some political putting the power in the judiciary could Congress’s use of impeachment. backlash. Moreover, both parties rec- lead to a conflict if an impeached offi- ognize that if one party opportunistically cial was subsequently prosecuted in the Finally: Does Impeachment Have sets the impeachment bar low, so might courts for a crime. For another, putting it Any Application to Current the other party, to the first’s disadvantage. [the power of impeachment] in the hands Officials? Finally, both parties must worry about of the judiciary would undermine one It depends. If the House of Repre- how any impeachment might energize of the functions of Congress, as the only sentatives finds that President Trump, voters—their own, or their opponent’s— potential legislative check on the judiciary. or Justice Kavanaugh, or any other in the next election. In the current envi- As to granting the power to the Supreme federal official committed “treason,” ronment, the political calculus probably Court: the delegates thought that the jus- “bribery,” or “high crimes and misde- drives impeachment decisions far more tices may not be well equipped to handle meanors” (as that phrase has been his- than whether any official committed this awesome responsibility, and, in any torically interpreted), then the House “high crimes and misdemeanors.” event, there were too few of them to take could issue articles of impeachment On the one hand, it seems disap- on this important power. and forward them to the Senate. If the pointing that such a carefully crafted The delegates settled on the two- Senate votes to convict, the official checks-and-balances feature of our part process now spelled out in the could be removed from office, and even Constitution—and one designed to Constitution (and described previously): prohibited from serving again. Because protect against outright crimes by our impeachment in the House, and trial in impeachment is a political, not legal or officials—could turn principally on mere the Senate. The delegates designed the criminal, process, an impeached person politics. But on the other hand, maybe process so that each House of Congress could not challenge the impeachment in this isn’t such a bad thing. If Congress would have a say in the impeachment court, and President Trump could not can be trusted to implement impeach- process, and so that therefore neither pardon an impeached person (for the ment cautiously and within bounds (as House could unilaterally abuse the impeachment). it largely has), then introducing politics power. At the same time, the delegates But a couple of political realities push into the calculus may only mean that on set “treason,” “bribery,” and “high crimes against this scenario (even if these or some level impeachment is driven, even and misdemeanors” as the standard for other officials are otherwise impeach- if imperfectly, by the will of the people. impeachment, based, in part, on English able). First, in recent years, party loyal- And isn’t that exactly what democracy is parliamentary impeachment and early ties seem to trump institutional responsi- all about? state constitutions. As described above, bilities, and a majority party in Congress the delegates adopted “high crimes and seems less and less likely to challenge a Steven Schwinn is a Professor of Law at The misdemeanors” instead of “maladminis- president from the same party. Applied to John Marshall Law School in Chicago. He may be tration” in order to provide a robust check impeachment, a Republican-controlled reached at [email protected]. on the president, while still respecting the Congress seems unlikely to impeach president’s authority to administer the any Republican or Republican appoin- Lessons on the Law is a contribution of the executive branch and to execute the laws. tee, and likewise for Democrats. In the American Bar Association, through its Divi- In this way, the Framers sought to design event of Democrats having a majority in sion for Public Education. The mission of the impeachment, like so many other struc- the House, they would be more likely Division is to promote public understanding of tural features of our Constitution, both to issue articles of impeachment against law and its role in society. The content of this to check and balance, and, at the same a Republican or Republican appointee. article does not necessarily reflect official policy time, to respect the separation of powers. But unless Democrats also control the of the American Bar Association, its Board of As we have seen, the Framers’ vision Senate, the chances of conviction would Governors, or the ABA Standing Committee on has largely been borne out by practice. be extremely remote. (Remember that Public Education.

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