Impeachment Powers

A. GENERALLY § 1. Constitutional Provi- nevertheless be liable and subject to Indictment, Trial, Judgment and Pun- sions; House and Senate ishment, according to Law. Article I, Functions Section 3, clause 7. Two other sections of the U.S. The impeachment power is de- Constitution also mention im- lineated and circumscribed by sev- peachment: eral provisions of the U.S. Con- stitution. They state: The President . . . shall have Power to grant Reprieves and Pardons for The President, Vice President and Offences against the United States, ex- all civil Officers of the United States, cept in Cases of Impeachment. Article shall be removed from Office on Im- II, section 2, clause 1. peachment for, and Conviction of, The Trial of all Crimes, except in Treason, Bribery, or other high Crimes Cases of Impeachment, shall be by and Misdemeanors. Article II, Section Jury. . . . Article III, section 2, clause 4. 3. . . . and [the House of Representa- Since the First Congress of the tives] shall have the sole Power of Im- peachment. Article I, Section 2, clause United States, the House of Rep- 5. resentatives has impeached 13 of- The Senate shall have the sole ficers of the United States, of Power to try all Impeachments. When whom 10 were federal judges, one sitting for that Purpose, they shall be was a cabinet officer, one a U.S. on Oath or Affirmation. When the Senator, and one the President of President of the United States is tried, the United States. the Chief Justice shall preside: And no Person shall be convicted without the Conviction has been voted by Concurrence of two thirds of the Mem- the Senate in four cases, all in- bers present. Article I, Section 3, volving federal judges. The judges clause 6. so convicted were John Pickering Judgment in Cases of Impeachment in 1804, West H. Humphreys in shall not extend further than to re- 1862, Robert W. Archbald in 1912, moval from Office, and disqualification to hold and enjoy any Office of honor, and Halsted L. Ritter in 1936. Trust or Profit under the United On numerous other occasions, States: but the Party convicted shall the impeachment process has

1945 Ch. 14 § 1 DESCHLER’S PRECEDENTS been initiated in the House as to tion. The Court of Claims dis- civil officers and judges but has missed the claim for want of juris- not resulted in consideration by diction, holding that the Senate’s the House of a report recom- power to try impeachments was mending impeachment. In the two exclusive under the Constitution. most recent cases where inves- The court cited the Supreme Court case of Mississippi v John- tigations have been conducted by son, wherein Chief Justice Samuel the on the Judiciary Chase had stated in dictum that and its subcommittees, in relation the impeachment process was not to Supreme Court Associate Jus- subject to judicial review.(1) The tice William O. Douglas in 1970 Court of Claims opinion read in and in relation to President Rich- part: ard M. Nixon in 1974, the pro- While the Senate in one sense acts ceedings have occasioned intense as a court on the trial of an impeach- congressional and national debate ment, it is essentially a political body and in its actions is influenced by the as to the scope of the impeach- views of its members on the public wel- ment power, the grounds for im- fare. The courts, on the other hand, peachment and for conviction, the are expected to render their decisions analogy if any between the im- according to the law regardless of the consequences. This must have been re- peachment process and the judi- alized by the members of the Constitu- cial criminal process, and the tional Convention and in rejecting pro- amenability of the impeachment posals to have impeachments tried by a court composed of regularly ap- process to judicial review. pointed judges we think it avoided the It should be noted at this point possibility of unseemly conflicts be- that of the four judges convicted tween a political body such as the Sen- ate and the judicial tribunals which and removed from office, none has might determine the case on different directly sought to challenge principles.(2) through the judicial process his Cross References impeachment by the House and Discussions of the impeachment process conviction by the Senate. Judge generally, see §§ 3.6–3.14 and appen- Halsted L. Ritter, convicted by the dix, infra. Senate in 1936, indirectly chal- lenged his conviction by filing suit 1. Ritter v United States, 84 Ct. Cls. for back salary in the U.S. Court 293 (1936), cert. denied, 300 U.S. 668 (1937), citing Mississippi v John- of Claims, where he alleged that son, 71 U.S. (4 Wall.) 475, 501 the Senate had tried him on (1867). grounds not constituting impeach- 2. Ritter v United States, 84 Ct. Cls. able offenses under the Constitu- 293, 300 (1936). 1946 IMPEACHMENT POWERS Ch. 14 § 1

High privilege of impeachment propo- dence in an Impeachment Trial); Ch. sitions, see §§ 5, 8, infra. 200 (Impeachment and Trial of Robert Pardon of officer who has resigned before W. Archbald); Ch. 201 (Impeachment his impeachment by the House, see and Trial of Harold Louderback); Ch. § 15.15. infra. 202 (Impeachment Proceedings not Re- sulting in Trial). Collateral References The impeachment power under par- For early precedents on the impeachment liamentary law, see House Rules and power and process, see the following Manual §§ 601–620 (Jefferson’s Man- chapters in Hinds’ Precedents: Ch. 63 ual) (1973). (Nature of Impeachment); Ch. 64 Impeachment, Selected Materials, Com- (Function of the House in Impeach- mittee on the Judiciary, H. Doc. No. ment); Ch. 65 (Function of the Senate 93–7, 93d Cong. 1st Sess., Oct. 1973 in Impeachment); Ch. 66 (Procedure of (constitutional provisions and histor- the Senate in Impeachment); Ch. 67 ical precedents and debate). (Conduct of Impeachment Trials); Ch. Impeachment, Selected Materials on Pro- 68 (Presentation of Testimony in an cedure, Committee on the Judiciary, Impeachment Trial); Ch. 69 (Rules of Committee Print, 93d Cong. 2d Sess., Evidence in an Impeachment Trial); Jan. 1974 (relevant extracts from Ch. 70 (Impeachment and Trial of Wil- Hinds’ and Cannon’s Precedents of the liam Blount); Ch. 71 (Impeachment House of Representatives).

and Trial of John Pickering); Ch. 72 (Impeachment and Trial of Samuel Chase); Ch. 73 (Impeachment and Trial of James H. Peck); Ch. 74 (Im- Impeachment and the Federal peachment and Trial of West H. Hum- Courts phreys); Ch. 75 (First Attempts to Im- peach the President); Ch. 76 (Impeach- § 1.1 The laid before ment and Trial of President Andrew the House a communication Johnson); Ch. 77 (Impeachment and from the Clerk, informing Trial of William W. Belknap); Ch. 78 the House of the receipt of a (Impeachment and Trial of Charles summons and complaint Swayne); Ch. 79 (Impeachment Pro- ceedings not Resulting in Trial). naming the House as a de- fendant in a civil action, in- See also the following chapters in stituted in a U.S. District Cannon’s Precedents: Ch. 193 (Nature of Impeachment); Ch. 194 (Function of Court, seeking to enjoin im- the House in Impeachment); Ch. 195 peachment proceedings (Function of the Senate in Impeach- pending in the House. ment); Ch. 196 (Procedure of the Sen- On May 28, 1974, Speaker Carl ate in Impeachment); Ch. 197 (Conduct of Impeachment Trials); Ch. 198 (Pres- Albert, of Oklahoma, laid before entation of Testimony in an Impeach- the House a communication from ment Trial); Ch. 199 (Rules of Evi- the Clerk, advising of his receipt 1947 Ch. 14 § 1 DESCHLER’S PRECEDENTS of a summons and complaint or its sole power of impeach- issued by the U.S. District Court ment under the U.S. Con- for the Eastern District of Vir- stitution. ginia, in connection with Civil Ac- On Aug. 22, 1974,(4) Speaker tion No. 74–54–NN, The National Carl Albert, of Oklahoma, laid be- Citizens’ Committee for Fairness to fore the House certain subpenas the President v United States issued by a U.S. District Court in (3) House of Representatives. a criminal case, requesting certain Parliamentarian’s Note: The evidence gathered by the Com- plaintiff in this action sought to mittee on the Judiciary and its enjoin the impeachment pro- subcommittee on impeachment, in ceedings pending in the House the inquiry into the conduct of against President Richard M. President Richard Nixon. The Nixon. The Clerk did not request House adopted House Resolution representation by the appropriate 1341, which granted such limited U.S. Attorney, under 2 USC § 118, access to the evidence as would because the House has the sole not violate the privileges or con- power of impeachment under the stitutional powers of the House. U.S. Constitution and because of The resolution read as follows: the application of the doctrine under the Constitution of the sep- H. RES. 1341 aration of powers of the executive, Whereas in the case of United States legislative, and judicial branches of America against John N. Mitchell et of government. al. (Criminal Case No. 74–110), pend- ing in the United States District Court § 1.2 Where a federal court for the District of Columbia, subpenas subpenaed in a criminal case duces tecum were issued by the said court and addressed to Representative certain evidence gathered by Peter W. Rodino, United States House the Committee on the Judici- of Representatives, and to John Doar, ary in an impeachment in- Chief Counsel, House Judicial Sub- quiry, the House adopted a committee on Impeachment, House of resolution granting such lim- Representatives, directing them to ap- ited access to the evidence, pear as witnesses before said court at 10:00 antemeridian on the 9th day of except executive session ma- September, 1974, and to bring with terials, as would not violate them certain and sundry papers in the the privileges of the House possession and under the control of the

3. 120 CONG. REC. 16496, 93d Cong. 2d 4. 120 CONG. REC. 30026, 93d Cong. 2d Sess. Sess.

1948 IMPEACHMENT POWERS Ch. 14 § 1

House of Representatives: Therefore be memoranda and notes, in the files of it the Committee on the Judiciary, of Resolved, That by the privileges of interviews with those persons who sub- this House no evidence of a documen- sequently appeared as witnesses in the tary character under the control and in proceedings before the full Committee the possession of the House of Rep- pursuant to House Resolution 803, resentatives can, by the mandate of such limited access in this instance not process of the ordinary courts of jus- being an interference with the Con- tice, be taken from such control or pos- stitutional impeachment power of the session but by its permission; be it fur- House, and the Clerk of the House is ther authorized to supply certified copies of such documents and papers in posses- Resolved, That the House of Rep- sion or control of the House of Rep- resentatives under Article I, Section 2 resentatives that the court has found of the Constitution has the sole power to be material and relevant (except of impeachment and has the sole that under no circumstances shall any power to investigate and gather evi- or transcripts of executive ses- dence to determine whether the House sions, or any evidence of witnesses in of Representatives shall exercise its respect thereto, be disclosed or copied) constitutional power of impeachment; and which the court or other proper of- be it further ficer thereof shall desire, so as, how- Resolved, That when it appears by ever, the possession of said papers, the order of the court or of the judge documents, and records by the House thereof, or of any legal officer charged of Representatives shall not be dis- with the administration of the orders turbed, or the same shall not be re- of such court or judge, that documen- moved from their place of file or cus- tary evidence in the possession and tody under any Members, officer, or under the control of the House is need- employee of the House of Representa- ful for use in any court of justice, or tives; and be it further before any judge or such legal officer, Resolved, That a copy of these reso- for the promotion of justice, this House lutions be transmitted to the said court will take such action thereon as will as a respectful answer to the subpenas promote the ends of justice consistently aforementioned. with the privileges and rights of this House; be it further of Federal Civil Offi- Resolved, That when said court de- cers termines upon the materiality and the relevancy of the papers and documents § 1.3 In the 72d Congress, the called for in the subpenas duces tecum, House amended a resolution then the said court, through any of its abating impeachment pro- officers or agents, have full permission ceedings against a federal to attend with all proper parties to the proceeding and then always at any judge where the committee place under the orders and control of report censured him for im- this House and take copies of all proper conduct, and voted to 1949 Ch. 14 § 1 DESCHLER’S PRECEDENTS

impeach him by adopting the let me make this observation. The pur- resolution as amended. pose of referring a matter of this kind to the Committee on the Judiciary is to On Feb. 24, 1933, a resolution determine whether or not in the opin- (H. Res. 387) was called up by Mr. ion of the Committee on the Judiciary Thomas D. McKeown, of Okla- there is sufficient evidence to warrant homa, at the direction of the Com- impeachment by the House. If the Committee on the Judiciary finds those mittee on the Judiciary; the reso- facts exist, then the Committee on the lution stated that the evidence Judiciary makes a report to the House against U.S. District Court Judge recommending impeachment, and that Harold Louderback did not war- undoubtedly is privileged. However, a rant impeachment. The committee custom has grown up recently in the Committee on the Judiciary of includ- report (H. Rept. No. 2065), cen- ing in the report a censure. I do not be- sured the judge as follows: lieve that the constitutional power of The committee the judge impeachment includes censure. We for conduct prejudicial to the dignity of have but one duty, and that is to im- the judiciary in appointing incom- peach or not to impeach. Today we find petent receivers, for the method of se- a committee report censuring the lecting receivers, for allowing fees that judge. The resolution before the House seem excessive, and for a high degree presented by a of the com- of indifference to the interest of liti- mittee is against impeachment. The minority members have filed a minor- gants in receiverships.(5) ity report, recommending impeach- The House rejected the rec- ment. I am making this observation ommendation of the committee by with the hope that we may get back to adopting an amendment in the the constitutional power of impeach- nature of a substitute impeaching ment. the judge for misdemeanors in of- Parliamentarian’s Note: On sev- fice. During debate on the resolu- eral past occasions, the resolution tion, Mr. Earl C. Michener, of reported to the House by the com- Michigan, addressed remarks to mittee investigating impeachment the power of censure in relation to has proposed the censure of the ( ) civil officers under the United officer involved. 6 Such resolu- States: 6. See, for example, 3 Hinds’ Prece- MR. MICHENER: Mr. Speaker, in an- dents §§ 2519, 2520. swer to the gentleman from Alabama, When a subcommittee report rec- ommended against the impeachment 5. 76 CONG. REC. 4913, 4914, 72d Cong. of Associate Judge William O. Doug- 2d Sess. See, generally, 6 Cannon’s las in the 91st Congress, the minor- Precedents § 514, and §§ 17.1, 17.2, ity views of Mr. Edward Hutchinson infra. (Mich.) indicated the view that Jus-

1950 IMPEACHMENT POWERS Ch. 14 § 2 tions were not submitted as privi- § 2. Who May Be Im- leged and were not considered by peached; Effect of Res- the House. Although censure of a Member by the House is a privi- ignation leged matter,(7) censure of an ex- ecutive official has not been held Article II, section 4 of the U.S. privileged for consideration by the Constitution subjects the Presi- House and has on occasion been dent, Vice President, and all civil held improper.(8) officers of the United States to im- peachment, conviction, and re- tice Douglas could have been cen- moval from office. It has been set- sured or officially rebuked for mis- tled that a private citizen is not conduct by the House (see § 14.16, subject to the impeachment proc- infra). ess except for offenses committed 7. See 3 Hinds’ Precedents §§ 2649– while a civil officer under the 2651. United States.(9) Members of the House are not sub- In one case, it was determined ject to impeachment under the Con- by the Senate that a U.S. Senator stitution (see § 2, infra) but are sub- (William Blount [Tenn.]) was not ject to punishment for disorderly be- a civil officer under article II, sec- havior. See U.S. Const. art. I, § 5, tion 4, and the Senate disclaimed clause 2. jurisdiction to try him.(10) 8. See 2 Hinds’ Precedents §§ 1569– In view of the fact that the Con- 1572. The issue whether a proposition to stitution provides not only for censure a federal civil officer would automatic removal of an officer be germane to a proposition for his upon impeachment and conviction, impeachment has not arisen, but it but also for the disqualification is not in order to a pending from holding further office under privileged resolution by adding or the United States (art. I, § 3, substituting a matter not privileged clause 7), the House and Senate and not germane to the original have affirmed their respective proposition. 5 Hinds’ Precedents power to impeach and try an ac- § 5810. cused who has resigned.(11) See 6 Cannon’s Precedents § 236 for the ruling that a proposition to 9. 3 Hinds’ Precedents §§ 2315, 2007. censure a Member of the House is A commissioner of the District of not germane to a proposition for his Columbia was held not to be a civil expulsion. Speaker Frederick H. Gil- officer subject to impeachment under lett (Mass.) ruled in that instance the Constitution. 6 Cannon’s Prece- that although censure and expulsion dents § 548. of a Member were both privileged 10. 3 Hinds’ Precedents §§ 2310, 2316. propositions, they were ‘‘intrinsi- 11. The question whether the House cally’’ different. may impeach a civil officer who has

1951