Impeachment

Impeachment

IMPEACHMENT IN AMERICA

DISPUTED LANGUAGE

BIBLIOGRAPHY

Shortly before the House Judiciary Committee met in October 1973 to debate proposed articles impeaching President Richard Nixon (1913–1994), a then-unknown Democratic congresswoman from Texas momentarily caught the public’s attention. Barbara Jordan (1936–1996) announced that she felt bound to go to the U.S. National Archives to put her fingers on the constitutional text that delegated to the House of Representatives the power to vote articles of impeachment. To many, hearing Jordan’s sonorous retelling of her experience, the impression must have been that by reading the constitutional language dealing with the impeachment and removal of “the President, Vice President and all civil Officers of the United States” (Art. I Sec. 2 (5), Sec. 3 (6–7); Art. II Sec. 2 (1), Sec. 4), Jordan would know exactly what the rules were that governed the process. In fact, the Constitution’s language on impeachment is as difficult to interpret as pharaoh’s dreams.

Impeachment dates to the thirteenth century. Those who would frame and ratify the U.S. Constitution were familiar with the process. In England, it allowed the king’s ministers to be punished even though the king himself could do no wrong. By the mid-eighteenth century, however, despite the publicity that attended the impeachment in 1787 of Warren Hastings (1732–1818), the first governor-general of British India, the process had pretty much disappeared. Hastings was charged with corruption during his tenure in India. His trial began in 1788; he was finally acquitted in 1795. It had never been transplanted to the colonies. In England, its decline paralleled the growth of ministerial responsibility to Parliament and the need of a ministry to have “the confidence of Parliament” and not simply the approbation of the monarch.

IMPEACHMENT IN AMERICA

Despite its rarity in contemporary England, both the Virginia and New Jersey plans provided for impeachment, although both gave the power to members of the judiciary. Only as the Constitutional Convention was winding down in 1787 was the power to impeach and remove vested in the House and Senate, with the chief justice of the Supreme Court involved as the presiding officer only at the trial of an impeached president. The Constitution also clearly distinguished how impeachment would be used in the United States as opposed to England by providing that conviction was limited to removal from office and possibly disqualification from holding public office in the future. In contrast, in England, Parliament could vote for criminal punishments, including death for those found guilty of “high crimes and misdemeanors.” The U.S. Constitution also explicitly limited the president of the United States from pardoning those impeached and convicted.

Although generally referred to as impeachment, the process has two distinct steps. The first involves impeachment, a task assigned to the House, where a simple majority vote is required to approve articles of impeachment. Persons impeached are then tried before the Senate, with the House designating the prosecutors. A two-thirds vote of the Senate is required for conviction. Two presidents—Andrew Johnson (1808–1875) and William Jefferson Clinton (1946–)—have been impeached. Nixon resigned before the full House voted on the impeachment articles adopted by the Judiciary Committee.

More common have been impeachment proceedings against federal judges. Thirteen have been impeached; seven were convicted, four were acquitted, and two resigned with no further Senate action. One U.S. senator and one cabinet member were also impeached. Senator William Blount (1749–1800) of Tennessee was the first individual impeached. The Senate expelled Blount in 1797 and then voted that it did not have jurisdiction to vote on the impeachment articles. Blount was charged with seeking to incite Indians to assist the British in driving the Spanish from west Florida. U.S. Secretary of War William Belknap (1829–1890) resigned in 1876 after being impeached for receiving bribes; the Senate failed to muster the required two-thirds vote to convict.

DISPUTED LANGUAGE

Despite the number of times impeachment has been initiated there remains much controversy as to its exact parameters. Republican House Minority Leader (later president) Gerald Ford (1913–2006), in leading the effort to impeach Justice William O. Douglas (1898–1980) (Ford and fellow Republicans were concerned both about the Justice’s increasingly erratic lifestyle and the possibility that some of his business dealings were illegal), famously quipped that an impeachable offense was “whatever a majority of the House [concludes it] to be …; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious.” Given the continuing scholarly debate, Ford’s statement has much to recommend it. Among the debated issues is the nature of “high crimes and misdemeanors,” the famously imprecise language taken from British practice and enshrined by the Framers in the fourth section of Article II: whether Congress members can be impeached and whether judges can be removed for lack of “good behavior;” whether those removed can have recourse to judicial review; and, finally, whether there are other constitutionally permissible means by which officials can be removed from office.

One set of scholars argues that “high crimes” is limited to indictable offenses. This was argued by Richard Nixon’s attorney, James St. Clair (1920–2001), and by law professor Raoul Berger (1901–2000). In contrast, Michael Gerhardt (2000) claims this is too narrow a reading of the English precedents and would have meant for much of early American history that there were few if any grounds for impeachment, since there were few if any federal crimes for which an individual could be indicted. His argument is that the term embraces any activity that would threaten the nation or bring the office into grave disrepute.

Others have claimed that offenses must relate to the office the person holds. This view is generally rejected with the frequently cited example being that of a hypothetical public official who commits a murder totally unrelated to his or her public responsibilities.

Supporting the argument that the standard, particularly regarding presidents, should be high is the claim that removing a president should be a very rare occurrence, since in doing so the Congress would be setting aside the will of the people. Critics of the impeachment of President Clinton argue that this action was almost akin to a congressional coup d’état and that the underlying act, a tryst with a White House intern, was a purely private act. Supporters of the impeachment argue that Clinton’s grand jury perjury and his sullying of his office were more than sufficient to justify his removal and that his successor, Vice President Al Gore, had also been elected by the people, a situation quite unlike the nineteenth-century case of President Andrew Johnson.

The impeachment of Senator Blount can be used to argue both that members of Congress can be removed and that they cannot. The dominant view is that there is no basis to include members of Congress under the phrase “all civil Officers.”

The first official removed from office (Blount was expelled by the Senate, acting under its powers under Article I, section 5), John Pickering (1738–1805), a U.S. district court judge who was impeached in 1803, clearly committed no crime. He was probably mentally ill and frequently drunk. Like many subsequent impeachments, the vote was along party lines. Pickering’s impeachment leads some to argue that since judges serve “during good behavior” (referring to Article III, Section 1 of the Constitution, which concerns a judge’s life tenure), the fact of bad behavior on the part of judges constitutes additional grounds for removal. The weight of historical evidence is opposed to this position.

Very much in dispute is whether the Constitution allows Congress to fashion other means to remove officials, particularly someone like Pickering who commit no crime and whose behavior would not serve to bring the government into disrepute. The Senate has, since the 1930s, provided that the trial can be conducted by a committee reporting to the full Senate. Several proposals have been advanced in Congress by which federal judges could be removed short of impeachment. The Twenty-fifth Amendment provides a means by which an incapacitated president can be removed. Whether a similar amendment to remove disabled judges is necessary or whether there can be a statutory solution is not clear.

Finally, impeachment appears to be one of the few issues that might fall within the steadily shrinking orbit of nonjusticiable “political questions.” In a case arising from the 1989 impeachment for perjury of Judge Walter Nixon Jr., the Supreme Court, by dismissing his appeal, appeared to indicate that judicial review, after conviction, was not an option. However, like nearly every other aspect of the impeachment process, this statement too is subject to dispute.

SEE ALSO Clinton, Bill; Nixon, Richard M.; Politics

BIBLIOGRAPHY

Berger, Raoul. 1974. Impeachment: The Constitutional Problems. Enl. ed. Cambridge, MA: Harvard University Press.

Black, Charles L. 1974. Impeachment: A Handbook. New Haven, CT: Yale University Press.

Brant, Irving. 1972. Impeachment: Trials and Errors. New York: Knopf.

Gerhardt, Michael J. 2000. The Federal Impeachment Process: A Constitutional and Historical Analysis. 2nd ed. Chicago: University of Chicago Press.

Labovitz, John R. 1978. Presidential Impeachment. New Haven, CT: Yale University Press.

Posner, Richard A. 1999. An Affair of State: The Investigation, Impeachment, and Trial of President Clinton. Cambridge, MA: Harvard University Press.

Rehnquist, William H. 1992. Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson. New York: Morrow.

U.S. House Committee on the Judiciary. 1973. Impeachment: Selected Materials. 93rd Cong., 1st Sess. October 1973. Washington, DC: U.S. Government Printing Office.

U.S. House Committee on the Judiciary. 1975. Impeachment of Richard M. Nixon, President of the United States: The Final Report of the Committee on the Judiciary, House of Representatives, Peter W. Rodino, Jr., Chairman. New York: Viking.

U.S. House Committee on the Judiciary. 1998. Impeachment of William Jefferson Clinton, President of the United States: Report of the Committee on the Judiciary, Together with Additional, Minority, and Dissenting Views to Accompany H. Res. 611. 105th Cong., 2nd Sess. December 16, 1998. Washington, DC: U.S. Government Printing Office.

Walter Nixon v. United States, 113 S. Ct. 732 (1993).

Francis Graham Lee