Kevin Cox, Associate Member, University of Cincinnati Law Review
The call for President Trump’s impeachment has been unrelenting since he took office in 2017, and even more so since the Democrats took control of the House of Representatives. Whether that call has merit is not the topic of this discussion. No, this discussion is about the history and procedures of the impeachment process.
Before beginning this discussion, it is noteworthy that only two U.S. presidents have been impeached: Andrew Johnson in 1868, and Bill Clinton in 1998. Richard Nixon, probably the most notable president subjected to the impeachment process, was never impeached. He resigned shortly before the full House had the opportunity to vote on his impeachment.[1] Further, both Johnson and Clinton were acquitted by the Senate and never removed from office.[2] More than sixty impeachment proceedings have been raised by the House, but less than a third have led to full impeachments and removal from office.[3]
The impeachment process is not a concept original to the United States. Indeed, the process has roots dating back to fourteenth-century England, where it was used to hold the king’s advisers accountable.[4] The framers drafted the Constitution’s impeachment provisions to guarantee that the process would serve as a check on the powers of both the judicial and executive branch.[5] In old England as well as early American colonial governments, impeachment trials took place in the upper legislative body based on charges brought by the lower house.[6] Despite this longstanding precedent, the delegates at the Constitutional Convention debated whether the Senate should carry the impeachment power, or whether it should be left to the U.S. Supreme Court.[7] Alexander Hamilton, in discussing the rationale for granting Congress the impeachment power, referred to the process as a “national inquest” and argued that members of Congress, as representatives of the people, would serve as the best judges during a national inquiry.[8] To Hamilton, the Supreme Court would be too small and susceptible to corruption, whereas the Senate, a political body representative of the people, would be the best place to preserve impartiality and prevent corruption.[9]
The Constitution has several provisions regarding the impeachment process. Article I of the U. S. Constitution grants the House of Representatives the sole “Power of Impeachment,” and provides the Senate the sole power to try all impeachments.[10] Procedurally, there are different voting requirements for each body; a simple majority requirement in the House, and a super-majority requirement in the Senate.[11] When sitting for the purpose of presidential impeachment, the Senate “shall be on Oath or Affirmation,” and the Chief Justice of the United States shall preside.[12] “Judgment in Cases of impeachment shall not extend further than to removal from Office, … but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to law.”[13]
In simple terms, the Constitution states that when a President or other federal officer is suspected of committing an impeachable offense, an individual House representative may introduce a bill to initiate the proceedings, and the House can vote to pass the articles of impeachment on to the Senate. Since the House initiates the impeachment procedures, it also selects representatives to act as impeachment managers who conduct the cases against the officers or president in the Senate proceeding.[14] In action, the House acts as a grand jury that votes whether to indict a federal officer or president, and the Senate acts as the judge and jury.
Once the House has passed the articles of impeachment by a simple majority vote, the Senate will then hold a trial. The Senate Chamber serves as the courtroom, and the Senate becomes the jury and judge, except in cases of presidential impeachment, when the Chief Justice of the U.S. Supreme Court presides over the process.[15] There will be evidence presented and testimony given, either in favor or in opposition of affirming the impeachment. If the Senate votes to uphold the impeachment, the president or officer will be removed from office.
Having explained the impeachment process, it is necessary to discuss the topic of impeachable offenses. Article II of the Constitution defines impeachable offenses as “Treason, Bribery, or other high crimes and Misdemeanors.”[16] However, while the offenses of treason and bribery are well established, the exact meaning of “high crimes and misdemeanors” has been long debated. Since the language is imprecise, susceptible to both narrow and broad interpretations, the meaning has yet to be firmly established.[17]
Narrow
constructionists interpret the language to mean only offenses that are
indictable.[18] Broad constructionist, who view impeachment
as a political weapon, interpret the text to include any conduct, even those
not based on indictable offenses, that the majority considers impeachable.[19] Since the House and Senate are political
bodies, elected to represent the people,
the meaning of “high crimes and misdemeanors” is bound to evolve as their
political makeups changes. Only time will tell.
[1] Impeachment Inquiries into President Richard Nixon,History.House.Gov, https://history.house.gov/HistoricalHighlight/Detail/15032448776?ret=True (last visited Feb. 2, 2019).
[2] List of Individuals Impeached by the House of Representatives, History.House.Gov, https://history.house.gov/Institution/Impeachment/Impeachment-List/ (last visited Feb. 2, 2019).
[3] Impeachment,History.House.Gov, https://history.house.gov/Institution/Origins-Development/Impeachment/ (last visited Feb. 2, 2019).
[4] Impeachment, Senate.Gov,https://www.senate.gov/artandhistory/history/common/briefing/Senate_Impeachment_Role.htm (last visited Feb. 2, 2019).
[5] Jennifer L. Blum, Comment, How Much Process Is Due: The Senate Impeachment Trial Process After Nixon v. United States, 44 Cath. U.L. Rev. 243, 247 (1994).
[6] Impeachment, supra note 4.
[7] Id.
[8] See Blum, supra note 5; see also The Federalist No. 65, at 397 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
[9] The Federalist No. 65, at 397 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
[10] U.S. Const. art. I, § 2, cl. 5; id. art. I, § 3, cl. 6.
[11] See id. art. I, § 3, cl. 6 (requiring concurrence of two-thirds present in Senate).
[12] See id.
[13] Id. art. I, § 3, cl. 7.
[14] Impeachment Inquiries into President Richard Nixon, supra note 1.
[15] See Impeachment, supra note 4.
[16] U.S. Const. art. II, § 4.
[17] See Impeachment, supra note 4.
[18] Id.
[19] Id.
