ArtI.S2.C5.1.3 The Power of Impeachment: Doctrine and Practice

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.

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 1980's, the Judicial Conference has referred its findings to the House recommending an impeachment investigation into a number of federal judges that 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 body 9—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, once the House leadership has approved an impeachment investigation, it is 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 present the matter to the Senate. 14 The Chairman of the House managers then presents the articles of impeachment to the Senate and requests that the body order the appearance of the accused. 15 The House managers typically act as prosecutors in the Senate trial. 16

The House has impeached nineteen individuals: fifteen federal judges, one Senator, one Cabinet member, and two 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

Footnotes

  1.  Jump to essay-1See 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.  Jump to essay-2The Federalist No. 37 (Alexander Hamilton) (Clinton Rossiter ed., 1961); Letter to Spencer Roane (Sept. 2, 1819), in 8 Writings of James Madison 450 (G. Hunt ed. 1908).
  3.  Jump to essay-3Story, 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.  Jump to essay-4Story, 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.  Jump to essay-5See 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.  Jump to essay-6See 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.  Jump to essay-7The 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.  Jump to essay-8See Gerhardt, supra note 3, at 176.
  9.  Jump to essay-9See 28 U.S.C. §§ 591–99. The statute authorizing the appointment of an independent counsel expired in 1999. Id. § 599.
  10.  Jump to essay-10See 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. Id.
  11.  Jump to essay-11U.S. Const. art. I, § 2, cl. 5.
  12.  Jump to essay-12See 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 7 (2010) [hereinafter Porteous Impeachment] (describing the creation by the House Judiciary Committee of an Impeachment Task Force to investigate allegations against Judge Porteous). Cf. Press Release, Nancy Pelosi, Speaker of the House, Pelosi Remarks Announcing Impeachment Inquiry (Sept. 24, 2019), https://www.speaker.gov/newsroom/92419-0 (announcing that various committee investigations of President Trump constitute an official impeachment inquiry); H.R. Res. 660, 116th Cong. (2019) (directing multiple 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).
  13.  Jump to essay-13See 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.
  14.  Jump to essay-14House Practice, supra note 5, at 616–19.
  15.  Jump to essay-15Gerhardt, supra note 3, at 33.
  16.  Jump to essay-163 Hinds, supra note 5, at §§ 2303, 2370, 2390, 2420, 2449.
  17.  Jump to essay-17See Porteous Impeachment, supra note 12, at 1 n.1.
  18.  Jump to essay-18House 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 bondmen where he received things of value in return for helping bondsman develop relationships with state judges).
  19.  Jump to essay-19Gerhardt, supra note 3, at 48.
  20.  Jump to essay-20H. Comm. on the Judiciary, 93d Cong., Constitutional Grounds for Presidential Impeachment 17 (Comm. Print 1974).
  21.  Jump to essay-21See discussion infra ArtII.S4.2.2Impeachable Offenses: Historical Background.
  22.  Jump to essay-22See generally infra ArtII.S4.2.3.1Impeachable Offenses: Early Historical Practice (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.  Jump to essay-23See generally Michael Gerhardt, Forgotten Presidents 41–47 (2013) [hereinafter Gerhardt, Forgotten Presidents].
  24.  Jump to essay-24Oliver P. Chitwood, John Tyler: Champion of the Old South 299–300 (1939).
  25.  Jump to essay-25Gerhardt, Forgotten Presidents, supra note 23, at 57.
  26.  Jump to essay-26Randall 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.  Jump to essay-27See 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.  Jump to essay-28Nixon Impeachment, supra note 27, at 6–11; see discussion infra ArtII.S4.2.3.5Impeachable Offenses: Effort to Impeach Richard Nixon.
  29.  Jump to essay-29See discussion infra ArtII.S4.2.3.5Impeachable Offenses: Effort to Impeach Richard Nixon.
  30.  Jump to essay-30See Gerhardt, supra note 3, at 106.
  31.  Jump to essay-31See Black, supra note 2, at 33–36.