Presidential Impeachment: The Legal Standard and Procedure
The involuntary removal of a sitting President of the United States has never occurred in our history. The only legal way such can be accomplished is by the impeachment process. This article discusses the legal standard to be properly applied by members of the United States House of Representatives when voting for or against Articles of Impeachment, and members of the United States Senate when voting whether or not to convict and remove from office a President of the United States, as well as the procedure to be followed.
Article I § 2 of the United States Constitution gives the House of Representatives the sole power to impeach (make formal charges against) and Article I § 3 gives the Senate the sole power to try impeachments. Article II § 4 of the Constitution provides as follows:
"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." (Emphasis supplied).
Thus, the operative legal standard to apply to an impeachment of a sitting President is "treason, bribery, or other high crimes and misdemeanors." There is substantial difference of opinion over the interpretation of these words.
There are essentially four schools of thought concerning the meaning of these words, although there are innumerable subsets within those four categories. The first general school of thought is that the standard enunciated by the Constitution is subject entirely to whatever interpretation Congress collectively wishes to make:
"What, then, is an impeachable offense? The only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office..." Congressman Gerald Ford, 116 Cong. Rec. H.3113-3114 (April 15, 1970).
This view has been rejected by most legal scholars because it would have the effect of having the President serve at the pleasure of Congress. However there are some, particularly in Congress, who hold this opinion.
The second view is that the above Constitutional standard makes it necessary for a President to have committed an indictable crime in order to be subject to impeachment and removal from office. This view was adopted by many Republicans during the impeachment investigation of President Richard M. Nixon. The proponents of this view point to the tone of the language of Article II § 4 itself, which seems to be speaking in criminal law terms. There are other places in the Constitution which seem to support this interpretation, as well. For example, Article III § 2 (3) provides that "the trial of all crimes, except in cases of impeachment, shall be by jury." (Emphasis supplied). Clearly the implication of this sentence from the Constitution is that impeachment is being treated as a criminal offense, ergo, impeachment requires a criminal offense to have been committed. Article II § 2 (1) authorizes the President to grant pardons "for offenses against the United States, except in cases of impeachment." (Emphasis supplied). This sentence implies that the Framers must have thought impeachment, and the acts which would support impeachment, to be criminal in nature. In the past, England had used impeachment of the King's ministers as a means of controlling policy (Parliament could not get rid of the King, but could get rid of his ministers who carried out acts Parliament believed to be against the best interest of the country). However, in English impeachments, once convicted that person was not only removed from office but was also punished (usually by execution).
The third approach is that an indictable crime is not required to impeach and remove a President. The proponents of this view focus on the word "misdemeanor" which did not have a specific criminal connotation to it at the time the Constitution was ratified. This interpretation is somewhat belied by details of the debate the Framers had in arriving at the specific language to be used for the impeachment standard. Initially the standard was to be "malpractice or neglect of duty." This was removed and replaced with "treason, bribery, or corruption." The word "corruption" was then eliminated. On the floor during debate the suggestion was made to add the term "maladministration." This was rejected as being too vague and the phrase "high crimes and misdemeanors" was adopted in its place. See Impeachment Trial and Errors, by Irving Brant, pages 17-19. There are many legal scholars who believe this lesser standard is the correct one, however.
The fourth view is that an indictable crime is not required, but that the impeachable act or acts done by the President must in some way relate to his official duties. The bad act may or may not be a crime but it would be more serious then simply "maldministration." This view is buttresses in part by an analysis of the entire phrase "high crimes or misdemeanors" which seems to be a term of art speaking to a political connection for the bad act or acts. In order to impeach it would not be necessary for the act to be a crime, but not all crimes would be impeachable offenses.
Some hold the opinion that Congress could pass laws by declaring what constitutes "high crimes and misdemeanors" which would, in effect, be a list of impeachable offenses. That has never happened. (Query: If Congress passed such a code of impeachable offenses, could that be applied retroactively, much as a definition, to a sitting President? Would such an application be viewed as an ex post facto law? Also, would such a statue be an attempt to amend the Constitution, without following the amendment procedure?)
Both the United States House of Representatives and the United States Senate have the right to make their own rules governing their procedure, and to change those rules. Under current rules, the actual impeachment inquiry begins in the Judiciary Committee of the House of Representatives. That Committee holds hearings, takes evidence, and hears testimony of witnesses concerning matters relevant to the inquiry. Typically, as occurred in the case of President Nixon, there will also be a Minority Counsel who serves the interest of the party not controlling Congress. Witnesses are interrogated by the Committee Counsel, the Minority Counsel, and each of the members of the House Judiciary Committee. The Committee formulates Articles of Impeachment which could contain multiple counts. The Committee votes on the Articles of Impeachment and the results of the vote are reported to the House as a whole. The matter is then referred to the whole House which debates the matter and votes on the Articles of Impeachment, which may or may not be changed. If the Articles of Impeachment are approved, the matter is sent to the Senate for trial.
The trial in the Senate is handled by "Managers" from the House of Representative, with the assistance of attorneys employed for the prosecution of the impeachment case. The Senate sits as a jury. (In the past the Senate has heard judicial impeachments by appointing a subcommittee especially for that purpose, which then reports its findings to the Senate as a whole. See Rules of the Senate When Sitting on Impeachment Trials, Rule XI.) The Senate would then debate the matter, and vote, each individual Senator voting whether to convict the President and remove him from office, or against conviction. If more then two-thirds of the Senators present vote to convict, the President would be removed from office. Thus a Senator who abstained from voting but was present would in effect be voting against conviction. (Article I § 3).
If the President is convicted by a vote of the Senate, and removed from office, yet another grave constitutional crisis is the presented. Does the President have a right of appeal, and if so, to whom? Article I § 3 of the Constitution states:
"The Senate shall have the sole Power to try all Impeachments..."
For many years, the conventional view was that the forgoing section of the Constitution meant that the Senate was the final arbiter when it came to impeachments (at least as to Federal Judges) and that what constituted an impeachable offense would be unreviewable. See Ritter v. U.S., 84 Ct. Cl. 293 (1936) cert denied 300 U.S. 668 (1937).
However, if there is an impeachment standard (and there can be no doubt that there is as the Constitution specifically establishes one - "treason, bribery or other high crimes and misdemeanors"), then it is only logical that it is possible for that standard not to be correctly followed. If such is the case, who is responsible for saying that the standard was not correctly followed? There can only be one answer - the courts. As there has never been a successful impeachment and removal of a sitting President, there is no authority "on all fours" for the proposition either way. However, there is authority which would shed some light on this complicated question.
Congressman Adam Clayton Powell was accused of serious misconduct and excluded from the United States House of Representatives by a vote of its members. Article 1 § 2(2) of the United States Constitution describes the three qualifications (age, citizenship, and residence) to be a member of the United States House of Representatives. Article I § 5(1) provides that each House of Congress shall be the sole judge of the "qualifications of its own members." After being excluded by a vote of the House membership, Representative Powell filed suit against the Speaker of the House, John McCormack, contending that the exclusion was unconstitutional because the requirements for membership in the House of Representatives are limited to age, citizenship, and residence. Representative Powell further contended that the only way to remove him (as a "civil officer" of the United States) was for an impeachment to be brought and the matter tried in the United States Senate. The attorneys for the United States House of Representatives countered with an argument to the effect that the legislative branch of government (i.e. The House of Representatives and the Senate, each) had explicit grants of quasijudicial power in the Constitution which generally were exceptions to the Article III grant of judicial powers to the Federal Courts. The specific argument by the attorneys for the House was that the Court should "declare its lack of jurisdiction to proceed." Powell v. McCormack, 395 U.S. 486 at 514 (1969).
The Court rejected this argument and concluded that the House of Representatives had overstepped its bounds in excluding Representative Powell from its membership. The important point of this decision is that the United States Supreme Court decided that it can review actions by Congress removing elected officials from office. The fact that Federal Courts have decided not to review judicial impeachments is of no consequence. Federal Judges are not elected, but rather, are appointed for life. The authority for the appointment of Federal Judges appears in a different section of the Constitution (Article III) from the impeachment language applicable to he President, Vice President, and other civil officers. Also, a different standard is used for impeachment of Federal Judges, which standard appears in Article III, specifically that the judges shall serve during "good behavior." One could distinguish the Federal cases declining to review judicial impeachments on the bases that the impeachment of a President and the impeachment of a Federal Judge are simply not the same thing. A Federal Judge is appointed for life by the President with the approval of the Senate. If the Judge is impeached, and the Senate removes the judge from office, it appears that what has really occurred (as intended by the Framers) is that the Senate has revoked its approval of that judge. Therefore, the act in removing the judge would be totally political. This is bolstered by the fact that the standard applicable to Federal Judges, "good behavior," is much lower then the standard for removal of the President. The "good behavior" standard appears to be virtually tantamount to serving at the pleasure of Congress.
The Supreme Court of the Untied States has decided that it should not review judicial impeachments, using the "political question" doctrine to sidestep the issue. Walter Nixon v. United States, 506 U.S. 224 (1993). In the Walter Nixon case, Judge Nixon attacked the rule of the Senate allowing a subcommittee to hear evidence, rather then the Senate as a whole, in his judicial impeachment. The opinion of the Supreme Court declined to review Judge Nixon's case, and in dicta is not binding on future Courts. Even though the Court was unanimous in concluding not to review Judge Nixon's removal from office, there were multiple concurring opinions. The concurring opinion of Justice White indicates an unwillingness, on his part at least, to conclude in advance that a Presidential impeachment would be unreviewable. See Walter Nixon v. United States, 506 U.S. at 244. As stated by Justice White at footnote 3, page 247 of the Walter Nixon case:
"Finally, as applied to the special case of the President, the majority's argument merely points out that, were the Senate to convict the President without any kind of trial, a Constitutional crisis might well result. It hardly follows that the Court ought to refrain from upholding the Constitution in all impeachment cases. Nor does it follow that, in cases of Presidential impeachment, the Justices ought to abandon their constitutional responsibilities because the Senate has precipitated a crisis."
This view is echoed by Justice Souter in his concurring opinion in the same case:
"If the Senate were to act in a manner seriously threatening the integrity of its results...judicial interference might well be appropriate." Walter Nixon v. United States, 506 U.S. at 253.
Assuming, for the sake of argument, that judicial review of a Presidential impeachment is Constitutionally possible, where would such judicial review begin? Would it begin by the President filing suit in a United States District Court? If so, and relief were denied by the United States District Court, the President would have a right of appeal to a Circuit Court of Appeals, but might only have a right to review by the United States Supreme Court via a petition for certiorari. Thus, the Supreme Court could deny certiorari, and avoid ruling on the issue entirely.
But what if the Supreme Court had original jurisdiction over the review of a Presidential impeachment? After all, there were no inferior Federal Courts at the time the Constitution was created. The only Federal Court discussed al all in the Constitution is the Supreme Court. Could the President file suit against the Senate in the Supreme Court itself? And what of the possibility that, even if there is an avenue for judicial review, the "political question" doctrine which prevents Courts from deciding matters which are inherently political, rather then legal would be used to avoid ruling on the central issue? See Baker v. Carr, 369 U.S. 186 (1962).
All of these questions remain unanswered at present.
- Editor's Note:
- Ron Lowry worked in Washington for former Congressman Robert G. Stephens, Jr. researching impeachment precedent during the House impeachment inquiry of President Richard M. Nixon.