Article I, Section 3, Clause 7 — Impeachment Judgments

ArtI.S3.C7.1 Overview of Impeachment Judgments

The immediate effect of conviction upon an article of impeachment is removal from office,¹ although the Senate may subsequently vote on whether the official shall be disqualified from again holding an office of public trust under the United States.² If this latter option is pursued, a simple majority vote by the Senate is required.³ If not, an individual who has been impeached and removed may remain eligible to serve in an office in the future, including as a Member of Congress.⁴

By design,⁵ impeachment is separate and distinct from a criminal proceeding. Impeachment and conviction by Congress operates to remove an individual from office; it does not, however, preclude criminal consequences for an individual’s actions.⁶ Those who have been impeached and removed from office are still subject to criminal prosecutions for the same underlying factual matters, and individuals who have already been convicted of crimes may be impeached for the same underlying behavior later.⁷ A number of federal judges, in fact, have been indicted and convicted for conduct which has formed the basis for a subsequent impeachment proceeding.⁸

The text of the Constitution does not address the sequencing of impeachment and other legal proceedings. Generally speaking, historical practice has been to impeach individuals after the conclusion of any related criminal proceedings, although this might simply reflect practical convenience as such proceedings can alert Congress of improper behavior that may warrant impeachment. Nonetheless, nothing in the Constitution demands this order of events.

The Constitution bars the President from using the pardon power to shield individuals from impeachment or removal from office.⁹ A President could pardon impeached officials suspected of criminal behavior, thus protecting them from federal criminal prosecution; such a move would not, however, shield those officials from removal from office via the impeachment process.

ArtI.S3.C7.2 Doctrine on Impeachment Judgments

While the Constitution authorizes the Senate,¹ following an individual’s conviction in an impeachment trial, to bar an individual from holding office in the future, the text of the Constitution does not clearly indicate that a vote for disqualification from future office must be taken separately from the initial vote for conviction.² Instead, the potential for a separate vote for disqualification has arisen through the historical practice of the Senate.³ The Senate did not choose to disqualify an impeached individual from holding future office until the Civil War era. Federal district judge West H. Humphreys took a position as a judge in the Confederate government but did not resign his seat in the United States government.⁴ The House impeached Humphreys in 1862. The Senate then voted unanimously to convict Judge Humphreys and voted separately to disqualify the Humphreys from holding office in the future.⁵ Senate practice since the Humphreys case has been to require a simple majority vote to disqualify an individual from holding future office, rather than the supermajority required by the Constitution’s text for removal, but it is unclear what justifies this result beyond historical practice.⁶

The second impeachment trial of Donald Trump saw the President’s attorneys argue that the dual punishments of removal and disqualification are linked. They asserted that removal and disqualification are not “separate or alternative punishment[s]” but instead that removal was a “condition precedent” to the “further penalty” of disqualification.⁷ As such, the President’s attorneys argued that as a textual matter, there can be no impeachment of former officials because the necessary punishment of removal is not available when the official has already left office. The House managers rejected this interpretation during the impeachment trial, arguing that the punishments are indeed separate and have been historically treated as such. Linking the two punishments “defies logic” the managers argued, for “[i]f a law sets out two possible penalties and one of them becomes unavailable, that does not mean that the offender is exempt from the penalty that remains.”⁸ Ultimately, the Senate’s decision to exercise jurisdiction over the second Trump impeachment appears to be an implicit rejection of the President’s position.⁹

The Senate’s power to convict and remove individuals from office, as well as to bar them from holding office in the future, does not overlap with criminal remedies for misconduct. Indeed, the unique nature of impeachment as a political remedy distinct from criminal proceedings ensures that “the most powerful magistrates should be amenable to the law.”¹⁰ Rather than serving to police violations of strictly criminal activity, impeachment is a “method of national inquest into the conduct of public men” for “the abuse or violation of some public trust.”¹¹ Impeachable offenses are those that “relate chiefly to injuries done immediately to the society itself.”¹² Put another way, the purpose of impeachment is to protect the public interest, rather than impose a punitive measure on an individual.¹³ This distinction was highlighted in the impeachment trial of federal district judge Alcee Hastings. Judge Hastings had been indicted for a criminal offense, but was acquitted.¹⁴ In 1988, the House impeached Hastings for much of the same conduct for which he had been indicted. Judge Hastings argued that the impeachment proceedings constituted “double jeopardy” because of his previous acquittal in a criminal proceeding.¹⁵ The Senate rejected his motion to dismiss the articles against him.¹⁶ The Senate voted to convict and remove Judge Hastings on eight articles, but it did not disqualify him from holding office in the future.¹⁷ Judge Hastings was subsequently elected to the House of Representatives.¹⁸