Impeachment

Impeachment is the procedure by which “the President, Vice President, and all other civil officers of the United States,” including members of the federal judiciary, can be removed from office if guilty of “treason, bribery, or other high crimes and misdemeanors.” Articles of impeachment, or accusations of misconduct, are drafted in the House of Representatives and approved by majority vote; the trial is before the Senate, with a two‐thirds vote needed for conviction. In cases of presidential impeachment, the trial is presided over by the chief justice. Conviction in a case of impeachment can result only in removal from office and disqualification from holding office in future, but does not prevent the guilty party from being held further accountable in regular courts of law. Finally, the presidential pardoning power does not extend to individuals convicted in cases of impeachment.

Impeachment once prevailed in England as an important mechanism to check abusive, high‐ranking ministers, but in the United States it has mainly become a device to remove corrupt lower federal court judges. The chief, and highly controversial, exceptions to this overall evolution have been the impeachment of Chief Justice Samuel Chase, and the impeachments of President Andrew Johnson and President Bill Clinton. As English usage developed, Parliament not infrequently employed impeachment as a means to charge and try high royal officials, including judges, with conviction ordinarily resulting in the death penalty. The framers of the Constitution reduced the consequences of conviction to mere removal from office, yet appear to have borrowed the process primarily as a means of checking the president. From the beginning, however, the Constitution's extension of the process to other federal officers was understood to include members of the judicial branch.

The Constitution's terse handling of impeachment left open a number of issues that continue to be the subject of debate. Perhaps most important of these is what behavior qualifies as a “high crime and misdemeanor.” While some commentators have argued that impeachable matters are confined to criminal offenses, and Congressman Gerald Ford famously asserted that an impeachable offense was whatever Congress said it was, the balance of opinion and practice holds that impeachable conduct entails some serious abuse of office or breach of public trust. Other vexing issues include: whether impeachment is appropriate for misconduct outside of one's official duties; whether judges can be removed for misbehavior that fails to rise to the level of high crimes and misdemeanors; and whether the federal courts may judicially review an impeachment conviction. Cutting across these and other issues is the further question of whether the same standards that apply to impeachment of the president should also apply to judges. On this last matter, most experts and practice suggest that at least lower federal judges ought to be more easily removed than the chief executive.

Justice Chase remains the only Supreme Court justice who has ever been subjected to the procedure, and his acquittal played an important role in preventing the application of impeachment from becoming overtly political. Chase was an important and controversial member of the founding generation. A signer of the Declaration of Independence, he was combative, irascible, aggressive, and overbearing. Chase, whom President Washington appointed to the Court in 1796, nevertheless had a first‐rate legal mind and was one of the leading members of the pre– John Marshall Court. He increasingly emerged, however, as an extreme Federalist partisan who vigorously enforced the Sedition Acts, which had been passed during the administration of John Adams to allow prosecution of Republican editors and politicians, especially in the cases of Thomas Cooper, John Fries, and James T. Callender.

While Chase's judicial behavior was improper, the eventual impeachment proceedings brought against him were also highly politicized. In the election of 1800, Thomas Jefferson secured the presidency as his fellow Republicans gained control of both houses of Congress, leaving only the national judiciary in Federalist hands. Jefferson himself did not initially desire to attack the judicial department, but more radical Republicans, such as John Randolph of Virginia, did. The new president eventually came to favor the impeachment of Federalist John Pickering, a federal district court judge from New Hampshire. Pickering was both insane and alcoholic and almost certainly engaged in no intentional crime or abuse of office. He became the first federal judge in history to be impeached, convicted, and removed from office as Republican majorities agreed that English and colonial American precedent established that impeachment proceedings could be a means to remove political opponents from office.

The same day that Pickering was convicted, Randolph moved, in the House of Representatives, for impeachment proceedings against Chase. Jefferson, at first, supported this development based upon what he believed to be Chase's ongoing partisan activities from the bench. He withdrew his support, however, when it became clear that Randolph and his allies intended to go after other Federalist members of the Supreme Court, including John Marshall and William Paterson, should Chase be convicted. During the trial itself, Chase and a battery of skilled lawyers mounted a vigorous defense while Randolph, who was not a trained lawyer, botched the prosecution. The conduct of the trial, Jefferson's refusal to enforce party discipline in the final vote, and arguably the realization that a conviction would undermine separation of powers prevented the more zealous Republicans from obtaining the two‐thirds majority necessary to convict.

Chase's acquittal supported the views of those more moderate Republicans who argued that the grounds for impeachment should be either criminal or abuse of office rather than partisan. This view has prevailed down to the present. Although various lower federal court judges have been impeached, convicted, and removed from office, this has occurred only in clear‐cut cases. For members of the Supreme Court the threat of impeachment has been mainly rhetorical. Since Jefferson, all presidents and most members of Congress have generally eschewed the impeachment process as too partisan and cumbersome.

That said, from time to time, individuals, and even groups have called for the impeachment of particular Supreme Court justices for espousing controversial or unpopular points of view. Perhaps the best known example was the campaign to impeach Chief Justice Earl Warren. Instituted by the John Birch Society in the early 1960s, the campaign distributed pamphlets and erected numerous billboards, but had no appreciable effect on judicial behavior. In a similar vein, Congressman Gerald Ford sought to make good his politicized views on impeachment by introducing a resolution sponsored by 110 representatives calling for the impeachment of Justice William O. Douglas in 1970.

While Chief Justice Salmon P. Chase presided over the Senate trial of President Johnson, and Chief Justice William Rehnquist later presided over the trial of President Clinton, the Supreme Court itself has not dealt with the issue extensively. Mention of the impeachment process by the justices has been mostly incidental to the discussion of other issues, such as the right to trial by jury or the reach of the pardon power.

Bibliography

Raoul Berger , Impeachment: The Constitutional Problems (1973).
Michael J. Gerhardt , The Federal Impeachment Process: A Constitutional and Historical Analysis (1996).

Richard E. Ellis

, revised by

Martin S. Flaherty