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History, law suggest impeachment offers no clear roadmap

Nearly a half century ago, then-U.S. Rep. Gerald Ford of Michigan offered this blunt assessment of what it takes to impeach a sitting federal official during his 1970 attempt to impeach U.S. Supreme Court Justice William O. Douglas. “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history,” said Ford, who later became vice president and then president after President Richard Nixon resigned rather than face impeachment himself. 

Four U.S. Presidents have faced impeachment inquiries (left to right): Donald Trump, Bill Clinton, Andrew Johnson and Richard Nixon

Four U.S. Presidents have faced impeachment inquiries (left to right): Donald Trump, Bill Clinton, Andrew Johnson and Richard Nixon

Ford’s bid to impeach Douglas failed. But as a new ABA Legal Fact Check explains, his remark reflects a reality as the U.S. House of Representatives begins its fourth impeachment inquiry of a U.S. president.

As detailed in the fact check, since 1797 the House of Representatives has initiated impeachment proceedings more than 60 times against top U.S. civil officials, including U.S. presidents Andrew Johnson in 1868, Nixon in 1974 and Bill Clinton in 1998. President Donald Trump is the fourth. Under the U.S. Constitution, the House has the “sole power” to begin an impeachment inquiry, and the Senate alone has the power to try an impeachment case, which it has done 19 times.

The language regarding impeachment dates to centuries-old English law and represents a compromise of the Founding Fathers. One difficult issue was determining the seriousness of an offense that would lead to impeachment. The Founding Fathers debated whether an impeachable offense must reflect “corrupt conduct” or merely “malpractice or neglect of duty.” They decided on the phrase, “treason, bribery, or other high crimes and misdemeanors.”

Another sticky issue was who should be the jury: The Senate, a judicial panel or a combination of the two? In arguing for the Senate, Alexander Hamilton summarized in 1788 the intent of impeachment: “Is it not designed as a method of NATIONAL INQUEST into the conduct of public men?”

The U.S. Supreme Court last weighed an impeachment issue in 1993. A federal judge, convicted in court of perjury, challenged the use of a Senate committee “to receive evidence and take testimony,” rather than a trial before the full Senate. But, the justices held these kind of impeachment matters were not reviewable by the courts, extending what is known as the “political question doctrine” to impeachments.

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