Constitution Annotated

Article I, Section 2, Clause 5 — Impeachment

Article I, Section 2, Clause 5

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Essays on this page (4)

ArtI.S2.C5.1 Overview of Impeachment

The Constitution confers upon Congress the power to impeach and thereafter remove from office the President,1 Vice President, and other federal officers—including judges—on account of treason, bribery, or other high crimes and misdemeanors. In exercising this power, the House and the Senate have distinct responsibilities, with the House determining whether to impeach and, if impeachment occurs, the Senate deciding whether to convict the person and remove him or her from office. The impeachment process formulated by the Constitution stems from a tool used by the British Parliament to hold accountable ministers of the Crown thought to be outside the control of the criminal courts.2 This tool was adopted and somewhat modified by the American colonies and incorporated into state constitutions adopted before the federal Constitution was formed.3

When bestowing on the House of Representatives the sole power of impeachment,4 the Framers left to that body’s discretion the important question of when impeachment proceedings are appropriate for treason, bribery, or other high crimes and misdemeanors.5 The Constitution also gives the House of Representatives general authority to structure the rules of its own proceedings, and this authority seems understood to extend to those proceedings concerning impeachment.6

The Constitution’s grant of the impeachment power to Congress is largely unchecked by the other branches of government. Impeachment is primarily a political process, in which judgments and procedures are left to the final discretions of the authorities vested with the powers to impeach and to try impeachments.7 Accordingly, the nature and scope of the impeachment power has been shaped not only by congressional perceptions regarding the Framers’ intent in crafting the Constitution’s impeachment clauses, but also by shifting institutional relationships between the three branches of the government, evolving balances of power between political parties and interest groups, and the scope of accountability exercised by the people over Congress and the Executive Branch.8 Further, examination of attempted impeachments, as well as those which sparked the resignation of an official, can sometimes inform the scope of the impeachment power.9

While the House alone has the power to initiate impeachment proceedings, both houses of Congress may pursue other methods to voice opposition to the conduct of government actors. The House and Senate, separately or in conjunction, have sometimes formally announced their disapproval of a particular Executive Branch official by adopting a resolution censuring, condemning, or expressing a lack of confidence in the individual, essentially noting displeasure with the official’s actions short of the sanction of impeachment and removal.10

Notes
  1. The Constitution contains a number of provisions that are relevant to the impeachment of federal officials. Article I, Section 2, Clause 5 grants the sole power of impeachment to the House of Representatives; Article I, Section 3, Clause 6 assigns the Senate sole responsibility to try impeachments; Article I, Section 3, Clause 7 provides that the sanctions for an impeached and convicted individual are limited to removal from office and potentially a bar from holding future office, but an impeachment proceeding does not preclude criminal liability; Article II, Section 2, Clause 1 provides that the President enjoys the pardon power, but it does not extend to cases of impeachment; and Article II, Section 4 defines which officials are subject to impeachment and what kinds of misconduct constitute impeachable behavior. Article III does not mention impeachment expressly, but Section 1, which establishes that federal judges shall hold their seats during good behavior, is widely understood to provide the unique nature of judicial tenure. And Article III, Section 2, Clause 3 provides that trials, “except in Cases of Impeachment, shall be by jury.” ↩
  2. See THE FEDERALIST NOS. 65, 81 (Alexander Hamilton) (Clinton Rossiter ed., 1961); RAOUL BERGER, IMPEACHMENT: THE CONSTITUTIONAL PROBLEMS 59–66 (1973); CHARLES BLACK, IMPEACHMENT: A HANDBOOK 5–6 (1974). ↩
  3. See PETER HOFFER & N.E.H. HULL, IMPEACHMENT IN AMERICA, 1635–1805, at 15–95 (1984); MICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENT PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS 1–24 (2000); JOSH CHAFETZ, CONGRESS’S CONSTITUTION 96–97 (2017). ↩
  4. U.S. CONST. art. I, § 3, cl. 5. ↩
  5. Id. art. II, § 4. ↩
  6. Id. art. I, § 5; see United States v. Ballin, 144 U.S. 1, 5 (1892) (“The constitution empowers each house to determine its rules of proceedings.”). ↩
  7. See Nixon v. United States, 506 U.S. 224, 237–38 (1993) (ruling that a challenge to the Senate’s use of a committee to take evidence for an impeachment trial posed a nonjusticiable political question). ↩
  8. GERHARDT, supra note 3, at ix–xiii. ↩
  9. See ArtI.S2.C5.3 Impeachment Doctrine; ArtII.S4.4.3 Jurisprudence on Impeachable Offenses (1789–1860) et seq. ↩
  10. See ArtI.S2.C5.4 Alternatives to Impeachment. ↩

ArtI.S2.C5.2 Historical Background on Impeachment

The concept of impeachment embodied in the federal Constitution derives from English,1 colonial, and early state practice.2 During the struggle in England by Parliament to impose legal restraints on the Crown’s powers, extending back at least to the 1600s, the House of Commons impeached and tried before the House of Lords ministers of the Crown and influential individuals—but not the Crown itself3—often deemed beyond the reach of the criminal courts.4 Parliament appeared to use impeachment as a tool to punish political offenses that damaged the state, although impeachment was not limited to government ministers.5 Impeachment applied to illegal acts, which included, among other things, significant abuses of a government office, misapplication of funds, neglect of duty, corruption, abridgement of parliamentary rights, and abuses of the public trust.6 Punishment for impeachment was not limited to removal from office, but could include a range of penalties upon conviction by the House of Lords, including imprisonment, fines, or even death.7

Inheriting this tradition, the American colonies adopted their own distinctive impeachment practices. The colonies largely limited impeachment to officeholders on the basis of misconduct committed in office, and the available punishment for impeachment was limited to removal from office.8 Likewise, many state constitutions adopted after the Declaration of Independence in 1776, but before the federal Constitution was ratified, incorporated impeachment provisions.9

This history thus informed the Framers’ consideration and adoption of impeachment procedures at the Constitutional Convention.10 The English Parliamentary structure of a bicameral legislature dividing the power of impeachment between the “lower” house, which impeached individuals, and an “upper” house, which tried them, was replicated in the federal system with the power to impeach given to the House of Representatives and the power to try impeachments assigned to the Senate.11 Nonetheless, the Framers, guided by the impeachment experiences in the colonies, ultimately adopted an “Americanized” impeachment practice with a republican character, distinct from English practice. The Constitution established an impeachment mechanism exclusively geared towards holding public officials, including the President, accountable.12 This contrasted with the English practice of impeachment, which could extend to any individual save the Crown and was not limited to removal from office, but could result in a variety of punishments.13 Likewise, the Framers adopted a requirement of a two-thirds majority vote for conviction on impeachment charges, shielding the process from naked partisan control.14 This, too, differed with the English practice, which allowed conviction on a simple majority vote.15 Ultimately, the Framers’ choices in crafting the Constitution’s impeachment provisions provide Congress with a crucial check on the other branches of the Federal Government and inform the Constitution’s separation of powers.16

Notes
  1. For more on the historical background of the Constitution’s impeachment provisions, see ArtIII.S1.10.2.2 Historical Background on Good Behavior Clause; ArtI.S3.C6.2 Historical Background on Impeachment Trials; ArtII.S4.4.2 Historical Background on Impeachable Offenses. ↩
  2. THE FEDERALIST NO. 65 (Alexander Hamilton); H. COMM. ON THE JUDICIARY, 93D CONG., CONSTITUTIONAL GROUNDS FOR PRESIDENTIAL IMPEACHMENT 4 (Comm. Print 1974) [hereinafter CONSTITUTIONAL GROUNDS]. ↩
  3. PETER HOFFER & N.E.H. HULL, IMPEACHMENT IN AMERICA, 1635–1805, at 96–106 (1984). ↩
  4. CONSTITUTIONAL GROUNDS, supra note 2, at 4–7; RAOUL BERGER, IMPEACHMENT: THE CONSTITUTIONAL PROBLEMS 59–66 (1973); JOSH CHAFETZ, CONGRESS’S CONSTITUTION 49–50 (2017). But see Clayton Roberts, The Law of Impeachment in Stuart England: A Reply to Raoul Berger, 84 YALE L.J. 1419 (1975) (arguing that impeachment during the Stuart period only applied to violations of existing law). ↩
  5. BERGER, supra note 4, at 59–66; CONSTITUTIONAL GROUNDS, supra note 2, at 4–5; 15 THE AMERICAN AND ENGLISH ENCYCLOPEDIA OF LAW 1061, 1064 (David S. Garland & Lucius P. McGehee eds., 1900). ↩
  6. HOFFER & HULL, supra note 3, at 3–14; CONSTITUTIONAL GROUNDS, supra note 2, at 4–7; Compare BERGER, supra note 4, at 67–68 (claiming that impeachment during the Stuart period was not limited to indictable conduct) with Clayton Roberts, The Law of Impeachment in Stuart England: A Reply to Raoul Berger, 84 YALE L.J. 1419 (1975) (arguing that impeachment during the Stuart period only applied to violations of existing law). ↩
  7. BERGER, supra note 4, at 67. ↩
  8. HOFFER & HULL, supra note 3, at 67. ↩
  9. See HOFFER & HULL, supra note 3, at 57–95; MICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENT PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS 1–11 (2000); CHAFETZ, supra note 4, at 96–97. See, e.g., PENN CONST. OF 1776, sec. 22 (placing the power of impeachment with the commonwealth’s unicameral legislature). ↩
  10. See discussion The Power to Try Impeachments: Historical Background and Impeachable Offenses: Historical Background; GERHARDT, supra note 9, at 1–11. ↩
  11. See THE FEDERALIST NOS. 65, 81 (Alexander Hamilton) (Clinton Rossiter ed., 1961); BERGER, supra note 4, at 59–66; U.S. CONST. art. I, § 2, cl. 5 (conferring the House with the sole power of impeachment); id. art. I, § 3, cl. 6 (providing that the Senate has the exclusive power to try impeachments). ↩
  12. HOFFER & HULL, supra note 3, at 96–106. For a more thorough discussion of how the Framers envisioned the power of impeachment, see The Power to Try Impeachments: Historical Background and Impeachable Offenses: Historical Background. ↩
  13. HOFFER & HULL, supra note 3, at 97. ↩
  14. Id. ↩
  15. Id. ↩
  16. See THE FEDERALIST NO. 65 (Alexander Hamilton) (describing the power of impeachment as a “bridle in the hands of the legislative body upon the executive servants of the government”); id. NO. 66 (noting that impeachment is an “essential check in the hands of [Congress] upon the encroachments of the executive”); id. NO. 81 (explaining the importance of the impeachment power in checking the Judicial Branch). ↩

ArtI.S2.C5.3 Impeachment Doctrine

While legal doctrine developed from judicial opinions informs much of constitutional law, the understood meaning of the Constitution’s provisions is also shaped by institutional practices and political norms.1 James Madison believed that the meaning of the Constitution would be “liquidated” over time or determined through a “regular course of practice.”2 Justice Joseph Story thought this principle applied to impeachment, noting for example that the Framers understood that the meaning of “high crimes and misdemeanors” constituting impeachable offenses would develop over time, much like the common law.3 Indeed, Justice Story believed it would be impossible to precisely define the full scope of political offenses that may constitute impeachable behavior.4 Consequently, the historical practices of the House with regard to impeachment flesh out the meaning of the Constitution’s grant of the impeachment power to that body.

Generally speaking, the impeachment process has been initiated in the House by a Member via resolution or declaration of a charge,5 although anyone—including House Members, a grand jury, or a state legislature—may request that the House investigate an individual for impeachment purposes.6 Indeed, in modern practice, a number of impeachments have been sparked by referrals from an external investigatory body.7 Beginning in the 1980s, the Judicial Conference has referred its findings to the House recommending an impeachment investigation into a number of federal judges who were eventually impeached.8 Similarly, in the impeachment of President Bill Clinton, an independent counsel—a temporary prosecutor given statutory independence and charged with investigating certain misconduct when approved by a judicial body9—first conducted an investigation into a variety of alleged activities on the part of the President and his associates, and then delivered a report to the House detailing conduct that the independent counsel considered potentially impeachable.10

Regardless of the source requesting an impeachment investigation, the House has sole discretion under the Constitution to actually begin any impeachment proceedings against an individual.11 In practice, impeachment investigations are often handled by an already existing or specially created subcommittee of the House Judiciary Committee.12 The scope of the investigation can vary. In some instances, an entirely independent investigation may be initiated by the relevant House committee or subcommittee. In other cases, an impeachment investigation may rely on records delivered by outside entities, such as that delivered by the Judicial Conference or an independent counsel.13 Following this investigation, the full House may vote on the relevant impeachment articles. If articles of impeachment are approved, the House chooses managers to bring the case before the Senate.14 The managers then present the articles of impeachment to the Senate, request that the body order the appearance of the accused,15 and typically act as prosecutors in the Senate trial.16

The House has impeached twenty individuals: fifteen federal judges, one Senator, one Cabinet member, and three Presidents.17 The consensus reflected in these proceedings is that impeachment may serve as a means to address misconduct that does not necessarily give rise to criminal sanction. The types of conduct that constitute grounds for impeachment in the House appear to fall into three general categories: (1) improperly exceeding or abusing the powers of the office; (2) behavior incompatible with the function and purpose of the office; and (3) misusing the office for an improper purpose or for personal gain.18 Consistent with scholarship on the scope of impeachable offenses,19 congressional materials have cautioned that the grounds for impeachment “do not all fit neatly and logically into categories” because the remedy of impeachment is intended to “reach a broad variety of conduct by officers that is both serious and incompatible with the duties of the office.”20

While successful impeachments and convictions of federal officials represent some clear guideposts as to what constitutes impeachable conduct,21 impeachment processes that do not result in a final vote for impeachment also may influence the understanding of Congress, Executive and Judicial Branch officials, and the public regarding what constitutes an impeachable offense.22 A prominent example involves the first noteworthy attempt at a presidential impeachment, which was aimed at John Tyler in 1842. At the time, the presidential practice had generally been to reserve vetoes for constitutional, rather than policy, disagreements with Congress.23 Following President Tyler’s veto of a tariff bill on policy grounds, the House endorsed a select committee report condemning President Tyler and suggesting that he might be an appropriate subject for impeachment proceedings.24 The possibility apparently ended when the Whigs, who had led the movement to impeach, lost their House majority in the midterm elections.25 In the years following the aborted effort to impeach President Tyler, presidents have routinely used their veto power for policy reasons. This practice is generally seen as an important separation of powers limitation on Congress’s ability to pass laws rather than a potential ground for impeachment.26

Likewise, although President Richard Nixon resigned before impeachment proceedings were completed in the House, the approval of three articles of impeachment by the House Judiciary Committee against him may inform lawmakers’ understanding of conduct that constitutes an impeachable offense.27 The approved impeachment articles included allegations that President Nixon obstructed justice by using the office of the presidency to impede the investigation into the break-in of the Democratic National Committee headquarters at the Watergate Hotel and Office Building and authorized a cover-up of the activities that were being investigated. President Nixon was alleged to have abused the power of his office by using federal agencies to punish political enemies and refusing to cooperate with the Judiciary Committee’s investigation.28 While no impeachment vote was taken by the House, the Nixon experience nevertheless established what some would call the paradigmatic case for impeachment—a serious abuse of the office of the presidency that undermined the office’s integrity.29

However, one must be cautious in extrapolating wide-ranging lessons from the lack of impeachment proceedings in the House. Specific behavior not believed to constitute an impeachable offense in prior contexts might be deemed impeachable in a different set of circumstances. Moreover, given the variety of contextual permutations, the full scope of impeachable behavior resists specification,30 and historical precedent may not always serve a useful guide to whether conduct is grounds for impeachment For instance, no President has been impeached for abandoning the office and refusing to govern. The fact that this event has not occurred, however, hardly indicates that such behavior would not constitute an impeachable offense meriting removal from office.31

Notes
  1. See KEITH WHITTINGTON, CONSTITUTIONAL CONSTRUCTION 3 (1999); II JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 762 (1833) (“The offences, to which the power of impeachment has been, and is ordinarily applied, as a remedy, are of a political character.”). ↩
  2. THE FEDERALIST NO. 37 (Alexander Hamilton); Letter to Spencer Roane (Sept. 2, 1819), in 8 WRITINGS OF JAMES MADISON 450 (G. Hunt ed. 1908). ↩
  3. STORY, supra note 1, at § 797; (“[N]o previous statute is necessary to authorize an impeachment for any official misconduct.”); id. at § 798 (“In examining the parliamentary history of impeachments, it will be found, that many offences, not easily definable by law, and many of a purely political character, have been deemed high crimes and misdemeanours worthy of this extraordinary remedy.”); see also MICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENT PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS 104–05 (2000). ↩
  4. STORY, supra note 1, at § 762 (“Not but that crimes of a strictly legal character fall within the scope of the power, (for, as we shall presently see, treason, bribery, and other high crimes and misdemeanours are expressly within it;) but that it has a more enlarged operation, and reaches, what are aptly termed, political offences, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties of political office. These are so various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law.”); id. at § 795 (“Again, there are many offences, purely political, which have been held to be within the reach of parliamentary impeachments, not one of which is in the slightest manner alluded to in our statute book. And, indeed, political offences are of so various and complex a character, so utterly incapable of being defined, or classified, that the task of positive legislation would be impracticable, if it were not almost absurd to attempt it.”). ↩
  5. See 3 ASHER C. HINDS, HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES §§ 2342, 2400, 2469 (1907), https://www.govinfo.gov/content/pkg/GPO-HPREC-HINDS-V3/pdf/GPO-HPREC-HINDS-V3.pdf [hereinafter HINDS]; 116 CONG. REC. 11,941–42 (1970); 119 CONG. REC. 74,873 (1974); see also WM. HOLMES BROWN ET AL., HOUSE PRACTICE: A GUIDE TO THE RULES, PRECEDENTS, AND PROCEDURES OF THE HOUSE ch. 27 § 6 (2011), https://www.govinfo.gov/content/pkg/GPO-HPRACTICE-112/pdf/GPO-HPRACTICE-112.pdf [hereinafter HOUSE PRACTICE]. ↩
  6. See GERHARDT, supra note 3, at 25; 3 LEWIS DESCHLER, PRECEDENTS OF THE UNITED STATES OF THE HOUSE OF REPRESENTATIVES, H.R. DOC. NO. 94-661, at Ch. 14 §§ 5, 5.10–5.11 (1974), https://www.govinfo.gov/content/pkg/GPO- HPREC-DESCHLERS-V3/pdf/GPO-HPREC-DESCHLERS-V3.pdf [hereinafter DESCHLER]. ↩
  7. The Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 authorizes the Judicial Conference to forward a certification to the House that impeachment of a federal judge may be warranted. 28 U.S.C. § 355. ↩
  8. See Gerhardt, supra note 3, at 176. ↩
  9. See 28 U.S.C. §§ 591–99. The statute authorizing the appointment of an independent counsel expired in 1999. Id. § 599. ↩
  10. See GERHARDT, supra note 3, at 176. The impeachment investigation of President Nixon also began with the referral by special prosecutor Leon Jaworski of material relating to possible impeachable conduct to the House Judiciary Committee. GERHARDT, supra note 3, at 176. ↩
  11. U.S. CONST. art. I, § 2, cl. 5. ↩
  12. See GERHARDT, supra note 3, at x--xi; see, e.g., REPORT OF THE IMPEACHMENT TRIAL COMM. ON THE ARTICLES AGAINST JUDGE G. THOMAS PORTEOUS, JR., 111TH CONG., 2D SESS., S. REP. NO. 111-347, at 6 (2010) [hereinafter PORTEOUS IMPEACHMENT] (describing the creation by the House Judiciary Committee of an Impeachment Task Force to investigate allegations against Judge Porteous). The investigations that ultimately led to the first impeachment of President Donald Trump were carried out by multiple House committees, including the Permanent Select Committee on Intelligence and the Committees on Financial Services, Foreign Affairs, Judiciary, Oversight and Reform, and Ways and Means. See STAFF OF H. PERM. SELECT COMM. ON INTELLIGENCE, ET AL., 116TH CONG., THE TRUMP-UKRAINE IMPEACHMENT INQUIRY REPORT: REPORT FOR THE H. PERM. SELECT COMM. ON INTELLIGENCE PURSUANT TO H. RES. 660 IN CONSULTATION WITH THE H. COMM. ON OVERSIGHT AND REFORM AND THE H. COMM. ON FOREIGN AFFAIRS (Comm. Print 2019). The early stages of this investigation saw some controversy over whether the House must explicitly authorize the initiation of an impeachment investigation. While the House committees had previously been investigating possible misconduct by President Trump, on September 24, 2019, the Speaker of the House announced that these investigations constituted an “official impeachment inquiry.” Press Release, Nancy Pelosi, Speaker of the House, Pelosi Remarks Announcing Impeachment Inquiry (Sept. 24, 2019), https://www.speaker.gov/newsroom/92419-0. The House, as an institution, did not take action to approve explicitly the impeachment investigation until October 31, 2019, when the body adopted a resolution formally authorizing the House committees “to continue their ongoing investigations as part of the existing House of Representatives inquiry into whether sufficient grounds exist for the House of Representatives to exercise its Constitutional power to impeach Donald John Trump, President of the United States of America.” H.R. Res. 660, 116th Cong. (2019). Although the Department of Justice, Office of Legal Counsel concluded that the House “must expressly authorize a committee to conduct an impeachment investigation,” see House Committees’ Authority to Investigate for Impeachment, 44 Op. O.L.C., slip op. at *53 (Jan. 19, 2020), https://www.justice.gov/olc/opinion/house-committees-authority-investigate- impeachment, it would appear that such an authorization is not strictly necessary given the existing tools and authority available to House committees to conduct more traditional legislative investigations into Executive Branch misconduct. For a more thorough discussion of this subject, see TODD GARVEY, CONG. RSCH. SERV., R45983, CONGRESSIONAL ACCESS TO INFORMATION IN AN IMPEACHMENT INVESTIGATION (2019), https://crsreports.congress.gov/product/pdf/R/R45983. ↩
  13. See GERHARDT, supra note 3, at 26. The House also did not conduct independent fact finding in the impeachments of President Bill Clinton, President Andrew Johnson, and Judge Harry E. Claiborne. Id. at 177. In the second impeachment of President Trump, the House conducted no formal impeachment investigation, but the staff of the Committee on the Judiciary presented the House with a report supporting the impeachment and outlining the events of January 6, 2020. See STAFF OF H. COMM. ON THE JUDICIARY, 116TH CONG., MATERIALS IN SUPPORT OF H. RES. 24 IMPEACHING DONALD JOHN TRUMP, PRESIDENT OF THE UNITED STATES, FOR HIGH CRIMES AND MISDEMEANORS (Comm. Print 2021). ↩
  14. HOUSE PRACTICE, supra note 5, at 616–19. ↩
  15. GERHARDT, supra note 3, at 33. During the first impeachment of President Trump, the impeachment articles were adopted by the House on December 18, 2019, H.R. Res. 755, 116th Cong. (2019), but the managers were not appointed and the articles not delivered to the Senate until January 15, 2020. H. R. Res. 798, 116th Cong. (2020). ↩
  16. 3 HINDS, supra note 5, at §§ 2303, 2370, 2390, 2420, 2449. ↩
  17. See List of Individuals Impeached by the House of Representatives, U.S. HOUSE OF REPRESENTATIVES, http://history.house.gov/Institution/Impeachment/Impeachment-List/ (last visited Dec. 7, 2021). ↩
  18. HOUSE PRACTICE, supra note 5, at 608–13. For examples of impeachments that fit into these categories, see CONG. GLOBE, 40th Cong., 2d Sess. 1400 (1868) (impeaching President Andrew Johnson for violating the Tenure of Office Act); 132 CONG. REC. H4710–22 (daily ed. July 22, 1986) (impeaching Judge Harry E. Claiborne for providing false information on federal income tax forms); 156 CONG. REC. 3155–57 (2010) (impeaching Judge G. Thomas Porteous for engaging in a corrupt relationship with bail bondsmen where he received things of value in return for helping bondsmen develop relationships with state judges). ↩
  19. GERHARDT, supra note 3, at 48. ↩
  20. H. COMM. ON THE JUDICIARY, 93D CONG., CONSTITUTIONAL GROUNDS FOR PRESIDENTIAL IMPEACHMENT 17 (Comm. Print 1974). ↩
  21. See ArtII.S4.4.2 Historical Background on Impeachable Offenses. ↩
  22. See generally ArtII.S4.4.3 Jurisprudence on Impeachable Offenses (1789–1860) et seq. In 1970, for instance, a Subcommittee of the House Judiciary Committee was authorized to conduct an impeachment investigation into the conduct of Justice William O. Douglas, but ultimately concluded that impeachment was not warranted. ASSOCIATE JUSTICE WILLIAM O. DOUGLAS, FINAL REPORT BY THE SPECIAL SUBCOMM. ON H. RES. 920 OF THE COMM. ON THE JUDICIARY, 91ST CONG., 2D SESS. (Comm. Print 1970). ↩
  23. See generally MICHAEL GERHARDT, FORGOTTEN PRESIDENTS 41–47 (2013) [hereinafter GERHARDT, FORGOTTEN PRESIDENTS]. ↩
  24. OLIVER P. CHITWOOD, JOHN TYLER: CHAMPION OF THE OLD SOUTH 299–300 (1939). ↩
  25. GERHARDT, FORGOTTEN PRESIDENTS, supra note 23, at 57. ↩
  26. Randall K. Miller, Presidential Sanctuaries After the Clinton Sex Scandals, 22 HARV. J.L. & PUB. POL’Y 647, 706–07 (1999) (“The Senate acquittal of President Andrew Johnson and the House’s failed attempt to impeach President John Tyler implies that even a deeply felt congressional disagreement with a target’s policies or political philosophies alone is not enough to justify removal.”). ↩
  27. See H. COMM. ON THE JUDICIARY, IMPEACHMENT OF RICHARD M. NIXON, PRESIDENT OF THE UNITED STATES, 93D CONG., 2D SESS., H.R. REP. NO. 93–1305, at 6–11 (1974) [hereinafter NIXON IMPEACHMENT]; United States v. Nixon, 418 U.S. 683, 713–14 (1974). ↩
  28. NIXON IMPEACHMENT, supra note 27, at 6–11; see ArtII.S4.4.7 President Richard Nixon and Impeachable Offenses. ↩
  29. See ArtII.S4.4.7 President Richard Nixon and Impeachable Offenses. ↩
  30. See GERHARDT, supra note 3, at 106. ↩
  31. See CHARLES BLACK, IMPEACHMENT: A HANDBOOK 33–36 (1974). ↩

ArtI.S2.C5.4 Alternatives to Impeachment

As an alternative to the impeachment process, both houses of Congress have occasionally formally announced their disapproval of a particular Executive Branch official by adopting a resolution censuring, condemning, or expressing a lack of confidence in the official.1 No constitutional provision expressly authorizes or prohibits such actions, and the propriety of using resolutions to condemn practices (which some describe as censure) has been the subject of some debate.2 Nevertheless, both the House and the Senate have passed such resolutions throughout the Nation’s history. For instance, the Senate censured President Andrew Jackson in 1834 for refusing to turn over a document relating to his veto of an act to re-charter the United States Bank.3 In 1860, the House adopted a resolution stating that the actions of President James Buchanan and the Secretary of the Navy Isaac Toucey, regarding the issuance of government contracts on political grounds, were deserving of reproof.4 And the Senate in 1886 adopted a resolution condemning Attorney General A.H. Garland for refusing to provide records to the Senate concerning President Grover Cleveland’s removal of a district attorney.5 Importantly, because such resolutions are not subject to the constitutional requirements of bicameralism and presentment, they impose no formal legal penalties or consequences for any party.6 Instead, they function primarily to express the sense of Congress on a matter and signal disagreement with the actions of the named individual.7

Notes
  1. See, e.g., CONG. GLOBE, 36th Cong., 1st Sess. 2951 (1860) (“Resolved, That the President and Secretary of the Navy, by receiving and considering the party relations of bidders for contracts with the United States, and the effect of awarding contracts upon pending elections, have set an example dangerous to the public safety, and deserving the reproof of this House.”); 17 CONG. REC., 1584–91, 2784–10 (1886) (“Resolved, That the Senate hereby expresses its condemnation of the refusal of the Attorney-General, under whatever influence, to send to the Senate copies of papers called for by its resolution of the twenty-fifth of January, and set forth in the report of the Committee on the Judiciary, is in violation of his official duty and subversive of the fundamental principles of the Government and of a good administration thereof.”). ↩
  2. See 2 ASHER C. HINDS, HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES § 1569 (1907); CONDEMNING AND CENSURING WILLIAM JEFFERSON CLINTON, H.J. RES. 140, 105TH CONG., 2D SESS. (1998). Letter from Rep. William D. Delahunt to Rep. Henry J. Hyde, Chair, House Judiciary Committee (Dec. 4, 1998); Peter Baker & Juliet Eilperin, GOP Blocks House Censure Alternative, WASH. POST (Dec. 13, 1998), https://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/impeach121398.htm. ↩
  3. 10 REG. DEB. 1187 (1834); Senate Censures President, U.S. SENATE, https://www.senate.gov/artandhistory/history/minute/Senate_Censures_President.htm (last visited Jan. 24, 2018). In 1850, the House passed a resolution censuring three members of President Zachary Taylor’s Cabinet for involvement in a scandal regarding the payment of a claim against the United States, when much of the payment went to a Cabinet member. The House considered censuring President Taylor himself, but he died in office without any such action being taken. MICHAEL GERHARDT, FORGOTTEN PRESIDENTS 77 (2013). ↩
  4. CONG. GLOBE, 36th Cong., 1st Sess. 2951 (1860). ↩
  5. 17 CONG. REC., 1584–91, 2784–2810 (1886). ↩
  6. See Michael J. Gerhardt, The Constitutionality of Censure, 33 U. RICH. L. REV. 33, 35 (1999). ↩
  7. The House of Representatives also issued a report critical of President Tyler following his veto of a tariff bill. OLIVER P. CHITWOOD, JOHN TYLER: CHAMPION OF THE OLD SOUTH 299–300 (1939); GERHARDT, FORGOTTEN PRESIDENTS, supra note 3, at 57. ↩