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ArtI.S3.C7.1.1 Judgment in Cases of Impeachment: Overview

Article I, Section 3, Clause 7:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

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.

Footnotes

  1.  Jump to essay-1U.S. Const. art. II, § 4; 3 Lewis Deschler, Precedents of the United States of the House of Representatives, H.R. Doc. No. 94–661, at Ch. 14 §§ 3.8 (1974), https://www.govinfo.gov/content/pkg/GPO-HPREC-DESCHLERS-V3/pdf/GPO-HPREC-DESCHLERS-V3.pdf.
  2.  Jump to essay-2See 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].
  3.  Jump to essay-3See 6 Cannon, supra note 2, at § 512. See, e.g., 49 Cong. Rec. 1447–48 (1913) (vote to disqualify Judge Robert W. Archbald, thirty-nine yeas, thirty-five nays).
  4.  Jump to essay-4See Waggoner v. Hastings, 816 F. Supp. 716 (S.D. Fla. 1993).
  5.  Jump to essay-5The 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.
  6.  Jump to essay-6U.S. Const. art. II, § 4.
  7.  Jump to essay-7See discussion infra ArtII.S4.2.3.7Impeachable Offenses: Contemporary Judicial Impeachments.
  8.  Jump to essay-8See id.
  9.  Jump to essay-9U.S. Const. art. II, § 2, cl. 1.