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 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, 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 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