ArtII.S4.1.2.1 Offices Eligible for Impeachment

Article II, Section 4:

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.

The Constitution provides that [t]he President, Vice President, and all civil Officers of the United States are subject to removal from office upon impeachment and conviction. 1 However, neither the text nor early historical sources precisely delineate who qualifies as a civil officer. For example, debates at the Constitutional Convention do not appear to reveal the scope of who may be impeached beyond the provision's applicability to the President. 2 And while the Federalist Papers emphasized that the power of impeachment serves as a check on the executive 3 and judicial branches, 4 they did not outline exactly what types of officials were considered to be civil officers. 5

Historical practice thus informs the understanding of who qualifies as a civil officer. Aside from the President and Vice President, who are plainly identified in the Constitution's text as impeachable officials, historical practice indicates that federal judges clearly qualify as officers subject to impeachment and removal, as the majority of proceedings have applied to those positions. 6 Congress has also impeached the head of a cabinet-level executive department. 7 While this indicates a congressional understanding that high-level executive officers may be subject to impeachment, it is unclear how far down the ranks of the federal bureaucracy this principle travels. 8

The Constitution's structure and historical practice also indicate that impeachment likely does not apply to Members of Congress. 9 First, Article II, Section 3 provides that officers of the United States are commissioned by the President; 10 Members of Congress receive no such commission. Second, Members may be removed from office by other means explicitly provided in the Constitution. 11 Third, the Ineligibility Clause bars any person holding any office under the United States from serving in any house of Congress, indicating the Members of Congress are not considered officers of the United States. 12

Finally, congressional practice indicates that Members of Congress are not officers of the United States. 13 In 1797, the House of Representatives voted to impeach Senator William Blount, the first impeachment in the history of the young Republic. 14 Two years later, the Senate concluded that Senator Blount was not a civil officer subject to impeachment and voted to dismiss the articles because that body lacked jurisdiction over the matter. 15 This determination has been accepted ever since by the House and the Senate, and since then, the House has never again voted to impeach a Member of Congress. 16

Footnotes

  1.  Jump to essay-1U.S. Const. art. II, § 4.
  2.  Jump to essay-2Statements from at least one delegate indicate that participants at the Constitutional Convention assumed that judges were subject to impeachment. See 2 The Records of the Federal Convention of 1787, at 66 (Max Farrand ed., 1911) (describing Rufus King's observation that judges would be impeachable because they hold their office during good behavior).
  3.  Jump to essay-3The Federalist No. 66 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
  4.  Jump to essay-4Id. at No. 79; Id. at No. 81; see generally discussion infra ArtIII.S1.2.1.1Good Behavior Clause: Overview et seq.
  5.  Jump to essay-5See, e.g., Va. Const. of 1776, para. 14 (providing that the chief executive of the state could only be impeached after leaving office); Del. Const. of 1776, art. 23 (same).
  6.  Jump to essay-6See List of Individuals Impeached by the House of Representatives, U.S. House of Representatives, http://history.house.gov/Institution/Impeachment/Impeachment-List/ (last visited Jan. 24, 2018).
  7.  Jump to essay-7See 3 Asher C. Hinds, Hinds' Precedents of the House of Representatives of the United States §§ 2444–68 (1907), https://www.govinfo.gov/content/pkg/GPO-HPREC-HINDS-V3/pdf/GPO-HPREC-HINDS-V3.pdf [hereinafter Hinds]; see discussion infra ArtII.S4.2.3.3Impeachable Offenses: Post-Bellum Practices (1865–1900).
  8.  Jump to essay-8Judicial interpretations of which positions qualify as officers under the Appointments Clause may shed light on which executive branch positions are filled by civil officers that are subject to impeachment. See Akhil Reed Amar, On Impeaching Presidents, 28 Hofstra L. Rev. 291, 303 (1999); Michael J. Broyde & Robert A. Schapiro, Impeachment and Accountability: The Case of the First Lady, 15 Const. Comment. 479 (1998). The Supreme Court, in interpreting those provisions, has distinguished between officers, who exercise significant authority of the United States, Buckley v. Valeo, 424 U.S. 1, 126 (1976), and employees, or non-officers that are lesser functionaries subordinate to the officers of the United States. Id. at 126 n.162. The Court has further recognized the Constitution's distinction between principal officers, who must be appointed by the President and confirmed by the Senate, and inferior officers, whose appointment may be placed in the President, department heads, or the courts of law. Edmond v. United States, 520 U.S. 651, 663 (1997). Assuming this line of cases serves as a guide in deciding who is a civil officer subject to impeachment, it appears that employees, as non-officers, are not subject to impeachment, while principal officers, such as the head of a cabinet-level executive department, are. In between these two categories, historical practice does not indicate whether an inferior officer is subject to impeachment, as the House has never impeached such an individual.
  9.  Jump to essay-9See discussion infra ArtII.S4.2.3.1Early Historical Practice (1789–1860); The Federalist No. 66 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
  10.  Jump to essay-10U.S. Const. art. II, § 3.
  11.  Jump to essay-11Id. art. I, § 5.
  12.  Jump to essay-12Id. § 6.
  13.  Jump to essay-13See Legal Aspects of Impeachment: An Overview, DOJ, Office of Legal Counsel 55 n.31 (1974), https://www.justice.gov/olc/page/file/980036/download (The Senator William Blount precedent of 1798 does seem to have determined that the Senate will not try its members on an impeachment.); David Currie, The Constitution in Congress: The Federalist Period 1789–1801 275–281 (1997).
  14.  Jump to essay-143 Hinds, supra note 7, at §§ 2300–02.
  15.  Jump to essay-15Id. at § 2318.
  16.  Jump to essay-16See Charles W. Johnson, John V. Sullivan, and Thomas J. Wickham, Jr., House Practice: A Guide to the Rules, Precedents and Procedures of the House 604–06 (2017); Staff of H. Comm. on the Judiciary, 93d Cong., Impeachment, Selected Materials 692 (Comm. Print 1973); Motions Sys. Corp. v. Bush, 437 F.3d 1356, 1373 (Fed. Cir. 2006) (This principle has been accepted since 1799, when the Senate, presented with articles of impeachment against Senator William Blount, concluded after four days of debate that a Senator was not a civil officer for purposes of the Impeachment Clause.); Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 48 (2000). In addition, in contrast to English practice, impeachment does not extend to private citizens or state officers, but is limited to officers of the federal government. 3 Hinds, supra note 7, at §§ 2007, 2315. No military officer has ever been impeached, which is consistent with the views of some early constitutional commentary that military officers are not subject to impeachment. Justice Joseph Story has suggested that civil officers was not intended to cover military officers. See II Joseph Story, Commentaries on the Constitution of the United States § 789 (1833) (concluding that [t]he sense, in which [civil] is used in the Constitution, seems to be in contradistinction to military, to indicate the rights and duties relating to citizens generally, in contradistinction to those of persons engaged in the land or naval service of the government).