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ArtI.S3.C6.1.1 The Power to Try Impeachments: Overview

Article I, Section 3, Clause 6:

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.

Just as the Constitution vests the House with sole1 authority to impeach government officials,2 it entrusts the Senate with the sole power to try impeachments.3 And just as the Constitution authorizes the House to establish its own procedures, including for impeachments, it empowers the Senate to determine its own rules for impeachment trial proceedings.4 The Senate's impeachment rules have remained largely the same since their adoption during the trial of President Andrew Johnson.5 However, while most impeachment trials were historically conducted on the Senate floor with the entire Senate participating, the Senate adopted Rule XI in 1935, which permits a committee to take evidence during impeachment trials.6 This rule was first implemented in the trial of Judge Claiborne in 1986; and the contemporary practice, at least with respect to the more common impeachment of federal judges, is for the Senate to appoint a special trial committee to receive and report evidence.7 After issuance of a report, the full Senate then convenes to consider the report; and after a closed deliberative session, publicly votes on the impeachment articles. The immediate effect of conviction upon an article of impeachment is removal from office,8 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.9 If future disqualification from office is pursued, a simple majority vote by the Senate is required.10

Because impeachment is a political process largely unchecked by the judiciary, the role of the Senate in impeachment proceedings is primarily determined by historical practice, rather than judicial interpretation.11 Examination of the Senate's practices is thus central to understanding the Constitution's provision granting that body power to conduct impeachment trials.

Footnotes

  1.  Jump to essay-1The 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.  Jump to essay-2See discussion supra ArtI.S2.C5.1.1 The Power of Impeachment: Overview The Power of Impeachment: Overview.
  3.  Jump to essay-3U.S. Const. art. I, § 3, cl. 6.
  4.  Jump to essay-4Id. § 5, cl. 2.
  5.  Jump to essay-5See Procedure and Guidelines for Impeachment Trials in the Senate, S. Doc. No. 93-33, 99th Cong., 2d Sess. (1986); Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 33 (2000).
  6.  Jump to essay-6Impeachment: Senate Impeachment Trials, U.S. Senate, https://www.senate.gov/artandhistory/history/common/briefing/Senate_Impeachment_Role.htm (last visited Jan. 24, 2018) (citing S. Res. 242, 73d Cong. (1934)).
  7.  Jump to essay-7See discussion infra ArtI.S3.C6.1.3.1 Senate Practices in Impeachment Senate Practices in Impeachment. An important exception to this modern practice is the trial of President Bill Clinton. See discussion infra ArtII.S4.2.3.6 Impeachable Offenses: Impeachment of Bill Clinton Impeachable Offenses: Impeachment of Bill Clinton.
  8.  Jump to essay-8U.S. Const. art. II, § 4.
  9.  Jump to essay-9See 3 Asher C. Hinds, Hinds' Precedents of the House of Representatives of the United States § 2397 (1907), https://www.govinfo.gov/content/pkg/GPO-HPREC-HINDS-V3/pdf/GPO-HPREC-HINDS-V3.pdf; 6 Clarence Cannon, Cannon’s Precedents of the House of Representatives of the United States § 512 (1936), https://www.govinfo.gov/content/pkg/GPO-HPREC-CANNONS-V6/pdf/GPO-HPREC-CANNONS-V6.pdf [hereinafter Cannon].
  10.  Jump to essay-10See 6 Cannon, supra note 9 , § 512. See, e.g., 49 Cong. Rec. 1447–48 (1913) (vote to disqualify Judge Robert W. Archbald, thirty-nine yeas, thirty-five nays).
  11.  Jump to essay-11See Nixon v. United States, 506 U.S. 224, 226 (1993); see discussion infra ArtII.S4.2.1 Impeachable Offenses: Overview Impeachable Offenses: Overview.
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