Impeachment: A Look at the Process
Q. What is impeachment?
A. It is a process, authorized by the Constitution, to bring charges against certain officials of the federal government for misconduct while in office.
Q. Who are these officials?
A. Article 2, Section 4, specifies that "The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." These "civil officers" include federal judges and cabinet members, but do not include Senators and Representatives, (the Senate and House deal with misconduct by their own members).
Q. What is the role of the House of Representatives in impeachment under the Constitution?
A. Article 1, Section 2, of the Constitution specifies that "the House of Representatives...shall have the sole power of impeachment." This means that it has the power to bring charges against an official.
Q. What is the Senate's role under the Constitution?
A. Once impeached, high officials are tried by the Senate. Article 1, Section 3, specifies, "The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present."
Q. What punishment does the Constitution prescribe if the official is convicted?
A. Article 1, Section 3, also specifies, "Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law."
Q. What else does the Constitution say about impeachment?
A. Article 2, Section 2, gives the President the "Power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." Article 3, Section 2, says, "The trial of all crimes, except in cases of impeachment; shall be by jury..."
Q. How many impeachment proceedings have there been in our history? How many involved a president?
A. The serious nature of impeachment is reflected in the fact that the House of Representatives has only moved seriously to impeach 18 officials in the more than 200 years since the Constitution was ratified, including two presidents, one cabinet member, one senator, and 13 judges. (The trial of the senator in 1797 resulted in the judgment that a United States Senator is not subject to impeachment.) Only seven of these officers were convicted by the Senate. A president has never been removed from office through the impeachment process. Andrew Johnson, who was impeached in 1868, was not convicted by the Senate (by a margin of one vote) and Richard Nixon resigned before the House voted on the articles of impeachment recommended by the Judiciary Committee.
Q. How does the impeachment process reflect the role of checks and balances in our constitutional system?
A. In essence, impeachment reflects a check by the legislative branch on the executive and judicial branches. It provides a way for this branch to deal with serious misconduct by judges and by both elected and nonelected members of the executive branch.
Serious misconduct by Representatives and Senators are dealt with by those bodies. Both the House and the Senate have means by which they may investigate charges of misconduct against members. Among the sanctions are censure, reprimand, and even expulsion.
Q. What are the grounds for impeachment?
A. As noted above, the Constitution specifies that high government officials may be impeached for "treason, bribery, or other high crimes and misdemeanors." What precisely constitutes "high crimes and misdemeanors" is, however, uncertain because the courts have not specifically defined or interpreted the term, unlike other constitutional clauses. Treason and bribery are very serious offenses against the state, and most experts agree that offenses encompassed within "high crimes and misdemeanors" are similarly serious. ("Misdemeanors" is a constitutional term that does not have the current meaning of an offense less serious than a felony.)
There is historical precedent dealing with impeachable conduct. For example, in 1974 the House Judiciary Committee rejected articles of impeachment against President Nixon for the secret bombings in Cambodia, which were viewed as being within executive prerogative as commander in chief, and for personal income tax irregularities, which were viewed as too personal to warrant impeachment. (The articles approved by the House Judiciary Committee related to criminal actions during the cover-up of the Watergate break-in; as noted above, Nixon resigned before the full House voted on the articles).
Also, many experts agree that there are different standards for impeachable and criminal conduct. In the words of Dean John D. Feerick of Fordham University School of Law, in an article published in 1984, "Most authorities agree--and the precedents are in accord--that an impeachable offense is not limited to conduct which is indictable. Conduct that undermines the integrity of a public office or is in disregard of constitutional duties or involves abuse of power is generally regarded as grounds for impeachment. Since impeachment is a drastic sanction, the misconduct must be substantial and serious."
Q. What is the basic impeachment process?
A. The basic impeachment process is spelled out in the Constitution. In essence, the House of Representatives functions something like a grand jury, in that it weighs the evidence and determines whether it is sufficient to justify articles of impeachment (similar to an indictment) and a trial to determine whether the charged official is guilty or not guilty. This trial is held in the Senate, with the Senators serving as jurors. The basic process, then, is in broad outline similar to the process for bringing criminal charges against an individual through the judicial system. If impeachment proceedings are brought against the President, the Chief Justice presides, adding a "judicial" aspect.
However, principal actors in the process are not ordinary citizens acting as grand jurors and trial jurors, but rather political figures--elected officials who serve by virtue of their position, and not because they have been selected by the courts to serve in judgment. That inevitably introduces a "political" element not directly present in judicial trials.
Q. How is impeachment different from the criminal and civil processes?
A. The criminal process involves personal misconduct and imposes penalties to vindicate the interests of society. The civil process involves personal fault and imposes liability to compensate individual victims.
The impeachment process is different from either of these. While it has elements of the criminal process, it is also a "political" process in that it is designed to deal with misconduct by high public officers. In the words of professor Jeff Atkinson of DePaul Law School, impeachment is designed "to protect our country and our Constitution from leadership that has become a danger to the country. Phrases used by the framers of the Constitution include 'corruption,' 'abuse of power,' 'subversion of the Constitution,' and 'neglect of duty.'"
In keeping with this purpose, the process and remedy are also "political." Our elected representatives in Congress sit in judgment, and, if convicted, the offender is removed from office and not permitted to hold office again.
Q. What procedures does the House of Representatives follow in the impeachment process?
A. While the Constitution outlines the basic process for impeachment, the specific procedures are determined by the internal rules of the House of Representatives and the Senate. To begin, the House of Representatives refers the investigation to its Judiciary Committee, which reviews the evidence and may conduct hearings. It determines whether an official impeachment inquiry is warranted and, if so, asks the House for permission to proceed. An official investigation follows, with the Committee deciding whether to offer articles of impeachment to the full House. The House then votes separately on each of the articles, with a simple majority needed to impeach the official. Articles of impeachment approved by the House are then presented to the Secretary of the U.S. Senate for trial.
The framers did not intend impeachment to be merely a way for one party (what the authors of The Federalist Papers termed a "faction" to cast an official from another party out of office. Rather, they saw it as a solemn, somber process, a serious activity with serious consequences. In any impeachment, there are many factors to weigh and much evidence to consider. Moreover, the process contemplates that due process is afforded to the officer who is subject to impeachment. Charges must be considered and made, a trial must be conducted, and appropriate proof of sufficient misconduct shown.
Q. Once an official is impeached by the House of Representatives, what procedures does the Senate follow in the impeachment trial?
A. The U.S. Constitution specifies that the Senate has the "sole power to try all impeachments." Beyond what the Constitution specifies regarding impeachment trials, the Senate has established certain rules of procedure for these trials. In the event of an impeachment trial, the full Senate sits as a jury--with the Chief Justice of the United States (William H. Rehnquist) presiding over the proceeding in cases of presidential impeachment. Designated members of the House, referred to as "managers," would prosecute the case by "exhibiting" the articles of impeachment. The Senate has powers to carry out its constitutional authority to try impeachments (issuing writs, mandates, contempt citations, etc.).
The Presiding Officer makes initial rulings on motions and objections, but these judgments may be reviewed by the Senate and reversed by a simple majority. In this sense, Senators also can function as judges in the proceeding. Under current rules, witnesses are subject to examination and cross-examination by the parties (represented by the prosecuting "managers" and the impeached official's attorneys). Senators may not speak during the trial. They may submit questions for witnesses to the Presiding Officer, but must do so in writing. After hearing the evidence, the Senators meet in closed session, as a jury in a courtroom would, to discuss the verdict. They then meet in open session to vote for either conviction or acquittal on each article: "The Presiding Officer shall first state the question; thereafter each Senator, as his name is called, shall rise in his place and answer: guilty or not guilty" Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials from Rules and Manual of the Senate, revised 1986).
Conviction requires the vote of two-thirds of the members present, or 67 Senators if all 100 members (2 for each of the 50 states) are present. If convicted on any one article of impeachment, the official is immediately removed from office. If it chooses, the Senate may also vote to disqualify a convicted official from further service in any federal office. This additional step requires only a simple majority of those present.
Q. Could the Senate consider alternatives to an impeachment trial?
A. It is generally agreed that the Senate could, by a simple majority vote (i.e., 51 votes if all 100 Senators are present), adjourn or suspend an impeachment trial at any point in the process. Some have proposed censure as an outcome of, or alternative to, the impeachment process in the case of President Clinton. The Constitution makes no mention of presidential censure, nor are there any provisions in Senate rules to specifically provide for this.
As a precedent cited by some, however, the Senate voted in 1834 to censure President Andrew Jackson. After his party took control of the Senate three years later, the censure was expunged from the official records. If the Senate were to consider a presidential censure resolution, according to Ilona Nickels, C-SPAN Resident Congressional Scholar, it would require the "unanimous consent" of the Senate to be considered with "parameters." A motion for a censure resolution could also be adopted by a simple majority vote, but it would proceed to the Senate floor without parameters, i.e., subject to both debate (and filibuster, if supported by at least 40 members) and amendment ( See Procedural Steps For Impeachment Process and Censure Resolutions ).
Q. What is most important to any process of presidential impeachment?
A. What is essential is that the process proceed in a manner that promotes public confidence in it for the good of the nation, consistent with the rule of law as embodied in the Constitution.