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Impeachment

IMPEACHMENT

A process that is used to charge, try, and remove public officials for misconduct while in office.

Impeachment is a fundamental constitutional power belonging to Congress. This safeguard against corruption can be initiated against federal officeholders from the lowest cabinet member, all the way up to the president and the chief justice of the U.S. Supreme Court. Besides providing the authority for impeachment, the U.S. Constitution details the methods to be used. The two-stage process begins in the House of Representatives with a public inquiry into allegations. It culminates, if necessary, with a trial in the Senate. State constitutions model impeachment processes for state officials on this approach. At both the federal and state levels, impeachment is rare: From the passage of the Constitution to the mid-1990s, only 50 impeachment proceedings were initiated, and only a third of these went as far as a trial in the Senate. The reluctance of lawmakers to use this power is a measure of its gravity; it is generally only invoked by evidence of criminality or substantial abuse of power.

The roots of impeachment date to ancient Athens. Its place in the U.S. Constitution was secured by the influence of English common law on the Framers of the Constitution. Originally, any English subject, politician, or ruler could institute impeachment charges in Parliament. By the fourteenth century, this power became the exclusive domain of the House of Commons and the House of Lords. In 1776, the American colonies included much of the English tradition in state constitutions, but the delegates of the Constitutional Convention hotly debated how best to embody it in the federal Constitution. Their most contentious question was over the offenses that should be considered impeachable.

A Challenge to Impeachment

In 1989, federal judge Alcee Hastings was removed from the bench by a Senate vote, becoming the first judge in U.S. history to be impeached after being acquitted in a criminal trial. Hastings vigorously proclaimed his innocence, challenged the proceedings in court, and alleged that racism drove the proceedings.

An appointee of President jimmy carter, Hastings joined the U.S. District Court for the Southern District of Florida as its first African American judge in 1979. In 1981, federal prosecutors indicted him on conspiracy to accept a bribe from a federal bureau of investigation agent posing as a defendant in a case before him. They charged Attorney William A. Borders, president of the National Bar Association, with offering the agent a lenient sentence from Hastings in exchange for $150,000. Borders was convicted in 1982. Hastings was acquitted in February 1983.

Hastings's troubles soon deepened. In April 1983, the U.S. Court of Appeals for the Eleventh Circuit set in motion a three-year investigation into charges that Hastings had manufactured evidence for his defense. The probe concluded that he was guilty, and in March 1987, the judicial conference of the united states recommended impeachment. The House of Representatives agreed. On August 3, 1988, the full House voted 413–3 to send the case to the Senate with seventeen articles of impeachment, including false testimony, fabrication of false records, and improper disclosure of confidential law enforcement information.

Hastings brought suit, seeking a preliminary injunction from the U.S. District Court for the District of Columbia (Hastings v. United States Senate, 716 F. Supp. 38 [1989]). In his three-part complaint, Hastings claimed that (1) the impeachment hearing was procedurally flawed because his trial would be conducted by committee and not by the full body of the Senate; (2) the impeachment hearings violated his Fifth Amendment double jeopardy rights against a second prosecution for the same crime; and (3) he was being denied effective counsel and was entitled to attorneys' fees.

The suit failed. U.S. district judge Gerhard Gesell held that (1) rule XI of the governing Rules of Procedure and Practice in the Senate When Sitting on Impeachment authorizes a committee format but does not prevent the full participation of the Senate; (2) double jeopardy principles did not apply in this case because impeachment is not a criminal proceeding and because Hastings faced separate impeachment charges; and (3) no statute provides for attorneys' fees.

In August 1989, the Senate panel heard twenty-four days of testimony. On October 20, it convicted Hastings on eight of the impeachment articles and removed him from office. Hastings left the bench continuing to profess his innocence, attacking the Senate's handling of evidence, and maintaining that he was the victim of racism.

cross-references

Double Jeopardy.

The result of the Framers' debate was a compromise: They borrowed language from English common law but adapted the grounds of impeachment. These grounds are specified in Article II, Section 4: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, treason, bribery, or other High Crimes and Misdemeanors." The choice of the phrase "High Crimes and Misdemeanors" left the exact definition of impeachable offenses open to interpretation by Congress. It has invited considerable debate, but it is generally read to mean both indictable offenses and other serious noncriminal misconduct. The latter has included corruption, dereliction of constitutional duty, and violation of limitations on the power of an office. Under the Constitution, federal judges are held to the most exacting standard: They may remain on the bench only "during good Behavior" (art. III, sec. 1).

How Will the Trial of Bill Clinton Affect Future Impeachments?

Impeachment, the constitutional method for removing presidents, judges, and other federal officers who commit "Treason, Bribery, or other high Crimes and Misdemeanors," requires a majority vote by the House of Representatives, and then conviction by a two-thirds vote in the Senate. President william jefferson clinton's impeachment trial was the fifteenth in U.S. history, and the second of a president. andrew johnson, the other president to be impeached by the House of Representatives, was acquitted by the Senate in 1868 in a vote that mostly followed party lines. Especially in light of prior impeachments, seven of which ended with the removal of federal judges, Clinton's case will affect the future use of impeachment, the process of impeachment, and the definition of "high Crimes and Misdemeanors."

Clinton's experience, like Johnson's, shows that impeachment can be a tool of political warfare. Although the U.S. Constitution only requires a House majority for impeachment, many scholars and other commentators say it should be a bipartisan effort to remove a president who is dangerous to the nation. However, the world of academia differs from that of politics. In contrast, House Republicans pursued Clinton by disregarding polls that said two-thirds of the nation opposed impeachment. The vote in the House then fell mostly along party lines. Future House majorities could use this precedent to impeach a political opponent without substantial public support.

The price of the impeachment, however, was high for House Republicans. Speaker newt gingrich (R-Ga.) resigned after mid-term elections in November 1998, trimming the Republican House majority to six votes. Then, upon exposure of his own extramarital affair, Speaker-elect Robert L. Livingston (R-La.) resigned on the day of impeachment, urging Clinton to follow his example. Republicans and Democrats alike might hesitate to pursue another unpopular impeachment with so much at risk. However, when Democrats someday control the House of Representatives with a Republican in the White House, the human temptation for revenge will be great. As historian Benjamin Ginsberg observed,"The history of American politics over the last few decades is that the victims of a political attack denounce it as an illegitimate endeavor—but within a few years adopt it themselves. It's like an arms race."

As for the process of impeachment, Clinton's experience may affect the future use of witnesses and the viability of censure. The House Judiciary Committee declined to call a single witness to any of Clinton's misconduct, relying instead in the investigation by Independent Counsel kenneth w. starr. Democrats criticized this procedure, asking how the House could vote on impeachment without an independent investigation. (In fact, the only other time the House failed to conduct an investigation was when it impeached President Johnson, suggesting that such an approach is political.) During Clinton's trial in the Senate, however, Democrats themselves opposed calling witnesses, a political move motivated by fear that witnesses would reveal something leading to conviction. House managers running the prosecution, who now wanted 15 witnesses after calling none in the House, had to settle for just three. Everyone will remember that lesson next time.

As an alternative to impeachment, Democrats tried to introduce censure resolutions in both the House and Senate. Republicans defeated these efforts. Some said censure was not a legal option, as the U.S. Constitution provides for censure of members of Congress but not presidents. Democrats, however, pointed to past censures of Presidents andrew jackson, john tyler, and james buchanan, and suggested that Republican opposition stemmed from a desire to brand Democrats as supporting Clinton's misconduct during upcoming elections.

Any future impeachment, whether of a president, judge, or other civil officer, will revisit the question of what constitutes "high Crimes and Misdemeanors," which is undefined in the U.S. Constitution. Those in favor of impeaching Clinton argued that perjury and obstruction of justice of any kind are impeachable because they subvert the rule of law, making it impossible to expect lawful behavior from ordinary citizens and even future presidents, who are charged by the Constitution with taking "Care that the Laws be faithfully executed." Those who opposed impeachment said that while perjury and obstruction of justice are wrong, they are not impeachable offenses unless they concern the president's official duties and present a danger to the nation.

Clinton's impeachment by the House and acquittal by the Senate thus will affect future interpretation of "high Crimes and Misdemeanors" in many ways. The House Judiciary Committee recommended impeachment for perjury in Clinton's deposition in a civil lawsuit, and for perjury in his criminal grand jury testimony. The House voted to impeach only for the latter, suggesting that perjury in a criminal matter is impeachable, while perjury in a civil matter is not.

The Senate, however, voted to acquit Clinton of perjury and obstruction of justice even though most Republicans and Democrats believed Clinton lied under oath and tried to influence the testimony of other witnesses. As explained by Senator Richard H. Bryan (D-Nev.), "The president's conduct is boorish, indefensible, even reprehensible. It does not threaten the republic." This suggests that misconduct, even perjury, that is unrelated to the president's official duties and does not present a danger to the nation is not impeachable.

As such, Clinton's acquittal creates a double standard for impeachment of presidents and judges. In 1986, the House impeached and the Senate convicted Judge Harry E. Claiborne for filing false income tax returns. In 1989, the House impeached and the Senate convicted Judge Walter L. Nixon Jr., for lying under oath about conduct unrelated to his official duties. In neither case did anyone suggest that lying about personal conduct is not an impeachable offense. In fact, the House managers' report concerning Judge Nixon said, "It is difficult to imagine an act more subversive to the legal process than lying from the witness stand. A judge who violates his testimonial oath and misleads a grand jury is clearly unfit to remain on the bench. If a judge's truthfulness cannot be guaranteed, if he sets less than the highest standard for candor, how can ordinary citizens who appear in court be expected to abide by their testimonial oath." The Senate's acquittal of Clinton suggested that lying about private matters is an impeachable offense for judges, but not for presidents.

Finally, the most significant effect of Clinton's impeachment and acquittal may be to define "high Crimes and Misdemeanors" to mean whatever the public wants. Scholars and politicians argued that the term purposefully is vague and undefined to allow Congress to handle each instance in the best interests of the nation. According to constitutional scholar Laurence H. Tribe, "[u]nless the rights of individuals or minority groups are threatened, our governing institutions are structured to make the sustained will of a significant majority all but impossible to topple—as the failure of the effort to remove President Clinton will dramatically illustrate." Even Senator Orrin G. Hatch (R-Utah), who voted to convict Clinton, said,"It's not just law. It's politics …. And you have to combine those two and say—and this ought to be the prevailing question—what is in the best interest of our country, of our nation, of our people."

further readings

Amar, Akhil Reed. 1999."On Impeaching Presidents." Hofstra Law Review 28 (winter).

Austin, Jan, ed. 1999. Congressional Quarterly 1998 Almanac. Washington, D.C.: Congressional Quarterly.

Baker, Peter, and Juliet Eilperin. 1998."Clinton Impeached." Washington Post (December 20).

Carney, James, John F. Dickerson, and Karen Tumulty. 1999. "Nightmare's End." Time (February 22).

Cooper, Charles J. 1999. "A Perjurer in the White House?: The Constitutional Case for Perjury and Obstruction of Justice as High Crimes and Misdemeanors." Harvard Journal of Law and Public Policy (spring).

Coyle, Marcia. 1999. "Impeachment Lessons for the House Are Stark." National Law Journal (February 22).

Gettinger, Stephen. 1999. "Impeachment's Future: Just Another Political Weapon?" CQ Weekly (February 13).

"Impeachment of the President: Interpreting 'High Crimes and Misdemeanors'." 1999. Congressional Digest (February).

Marcus, Ruth. 1999. "House Managers Warn of Trial's Future Impact on Presidency." Washington Post (January 12).

——. 1999. "Scholars Weigh Likelihood of Future Impeachments." Washington Post (February 15).

——. 1999. "With Precedents as a Guide; Senators' Decisions, as Well as Rules, Will Affect Process." Washington Post (January 14).

Samuelson, Robert J. 1998. "Nixon's Revenge." Washington Post (December 23).

"Special Report: Impeachment of the President." 1999. CQ Weekly (February 13).

Tribe, Laurence H. 1999. "And the Winner Is…" New York Times (February 12).

"The Verdict; Constitutional Justice." 1999. New York Times (February 13).

Weisberger, Bernard A. 1999. "Impeachment Aftermath." American Heritage (February).

cross-references

Articles of Impeachment; Sexual Harassment.

Impeachment is conducted in two stages. Impeachment proceedings begin in the House of Representatives (art. I, sec. 2). This stage satisfies the Framers' belief that impeachment should be a public inquiry into charges against an official, and it involves fact-finding at hearings. After accumulating all the evidence, the House votes on whether or not to impeach. A vote against impeachment ends the process. A vote to impeach formally advances the process to its second stage through what is called adoption of the articles of impeachment.Each article is a formal charge with conviction on any one article being sufficient for removal. The case is then sent to the Senate, which organizes the matter for trial (art. I, sec. 3).

During the trial, the Senate follows unique rules. There is no jury (art. III, sec. 2). Instead, the Senate is transformed into a quasi-judicial body that hears the case, and the impeached official can attend or be represented by counsel. The vice president presides over the trial of any official except the president, and the chief justice of the U.S. Supreme Court presides over the trial of the president. To convict, a two-thirds majority is needed. The punishments for conviction are removal from office and disqualification from holding office again. No presidential pardon is possible (art. II, sec. 2). Additional criminal charges can be brought against convicted officials, but these are pursued in court and are separate from the impeachment process.

Impeachment is not often pursued. President andrew johnson was nearly impeached as a result of a bitter struggle in 1868 between his exercise of executive power and congressional will. He escaped an impeachment conviction in the Senate by a single vote. In 1974, President richard m. nixon, embroiled in the watergate scandal, resigned rather than face almost certain impeachment. The House Judiciary Committee had recommended that the full House take up three articles of impeachment against Nixon: obstruction of justice; abuse of constitutional authority; and refusal to answer the committee's subpoenas.

Congress has adopted the articles of impeachment against one senator, William Blount; one cabinet member, William W. Belknap; and one Supreme Court justice, samuel chase. It also has voted to impeach a small number of federal appeals and district court judges. In 1989, U.S. district court judge Alcee Hastings, of Miami, became only the twelfth federal judge in U.S. history to be impeached. His case was unique: He was the first African-American to be appointed to the Florida federal bench, and also the only judge to be impeached after an acquittal in a criminal trial. The House voted to adopt 17 articles of impeachment against him in 1988. After Hastings unsuccessfully challenged his impeachment in court in 1989, the Senate convicted him on eight of the articles and removed him from office.

The impeachment and trial of President bill clinton in 1998 and 1999 demonstrated the difficulty of removing an official when the debate becomes politicized. The desire of the House of Representatives to impeach Clinton grew out of actions that had taken place in litigation involving Clinton and Paula Jones. Jones had filed a lawsuit against Clinton, alleging that he had sexually harassed her when he was governor of Arkansas and she was a state employee. Clinton sought to postpone the suit until he left office but the U.S. Supreme Court, in Clinton v. Jones, 520 U.S. 681, 117 S. Ct. 1636, 137 L. Ed. 2d 945 (1997), ruled that a sitting president does not have presidential immunity from suit over conduct unrelated to his official duties. Jones's attorneys then sought to obtain evidence for the trial. Clinton agreed to be deposed in Washington, D.C. on January 17, 1998, the first sitting president to do so. At the deposition, Jones's attorney asked Clinton whether he been involved in a sexual relationship with former White House intern Monica Lewinsky. He denied that there had been such a relationship and made other denials to questions about his conduct with Lewinsky. In written responses to interrogatories, Clinton made similar denials. Within days, the news media reported about allegations of a sexual affair between the president and the intern.

kenneth starr, the independent counsel who was charged with investigating possible criminal activity by President Clinton and First Lady hillary rodham clinton in an Arkansas real estate deal ("Whitewater"), worked with Jones's attorneys to develop evidence that Clinton had lied about the affair with Lewinsky. Starr threatened to subpoena Clinton to testify before a grand jury about possible perjury and obstruction of justice, but Clinton voluntarily agreed to appear before the grand jury. On August 17, 1998 Clinton changed his story when Starr questioned him before the grand jury. Clinton admitted that he had been alone with Lewinsky and that they had engaged in "inappropriate intimate contact."Much of Clinton's grand jury testimony contradicted the sworn testimony that he had given at the Jones deposition.

Starr prepared a 453-page report and submitted it to the House of Representatives on September 11, 1998. He accused Clinton of betraying his constitutional duty by engaging in a pattern of "abundant and calculating" lies regarding his relationship with Lewinsky. The report, which contained explicit language, was released on the internet a few days later. The Republican-controlled House Judiciary Committee began deliberating the possibility of impeaching Clinton. On Dec. 11, 1998, after seven days of hearings, the Judiciary Committee voted to recommend the impeachment of President Clinton. On a 21-to-16, straight, party-line vote, the committee approved an article of impeachment claiming that Clinton had committed perjury before the grand jury. The committee passed two more articles, alleging perjury in the Paula Jones suit and obstruction of justice. On December 12, it passed a fourth article, alleging that Clinton had abused his power. On December 19, the full House of Representatives impeached Clinton, charging him with "high crimes and misdemeanors" for lying under oath and obstructing justice by trying to cover up his affair with Lewinsky. The House voted largely along party lines to approve two of the four proposed articles of impeachment.

The Senate began the impeachment trial on January 14, 1999. Thirteen House members, acting as prosecutors, spent three days making opening statements, laying out the case for the Senate to convict President Clinton and to remove him from office. The team of lawyers representing President Clinton spent the following three days presenting their lines of defense. After the Senate questioned both sides for several days, it adjourned the trial until House prosecutors could be take depositions from Lewinsky and others who had been involved in the alleged perjury and obstruction of justice. The Senate, on a 70-30 vote, decided not to call Lewinsky as a witness but permitted videotape excerpts of her testimony to be played at the trial. Both sides played excerpts that it believed to be favorable to its position, which were shown to the U.S. public through the televised deliberations. Closing arguments then were presented, and the Senate moved into closed-door deliberations on February 9, 1999.

On February 19, 1999, the Senate acquitted President Clinton of the two articles of impeachment. Rejecting the perjury charge, ten Republicans and all 45 Democrats voted not guilty. On the obstruction-of-justice charge, the Senate split 50-50. After the verdict was announced, Clinton stated that he was "profoundly sorry" for the burden he had imposed on the Congress and the citizens of the United States.

Impeachment remains the ultimate check on the abuse of power. By providing this power to Congress, the Framers drew on a long tradition of democratic skepticism about leaders. These provisions ensure that leaders will serve the people only so long as they respect the law and their offices. In this sense, the power of impeachment also stands ready to thwart tyranny. Calls are occasionally made for reform that would streamline the impeachment process, but its rare invocation and tradition of service make such reform unlikely.

further readings

Baron, Alan I. 1995. "The Curious Case of Alcee Hastings." Nova Law Review (spring).

Shea, Pegi Deitz. 2000. The Impeachment Process. Philadelphia: Chelsea House Publishers.

Smith, Alexa J. 1995. "Federal Judicial Impeachment: Defining Process Due." Hastings Law Journal 46 (January).

Strasser, Fred. 1989. "Proud, Unrepentant, Judge Hastings Exits." The National Law Journal (November 6).

Tupaz, Antonio R., and A. Edsel C.F. Tupaz. 2001. Fundamentals on Impeachment. Quezon City, Philippines: Central Lawbook Pub.

Villadolid, Oscar S., and Alice Colet Villadolid. 2001. The Impeachment of a President. Manila.

cross-references

High Crimes and Misdemeanors; Chase, Samuel, "The Samuel Chase Impeachment Trial" (Sidebar).

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Impeachment

IMPEACHMENT

IMPEACHMENT. Article II, section 4, of the U.S. Constitution provides that "the President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." Article I, section 2, gives the House of Representatives the "sole Power of Impeachment," and once impeachment articles are brought by the House, according to Article I, section 3, "The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present." The penalties for impeachment are also carefully spelled out by the Constitution in Article I, section 3: "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." While the president of the United States has general power to grant pardons and reprieves, this power, according to Article II, section 2, is expressly denied him "in Cases of Impeachment." The only other mention of impeachment in the Constitution is in Article III, section 2, which states, "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury."

Much mystery surrounds the proper grounds for impeachment and the precise nature of the proceedings. Impeachment as practiced in England carried with it criminal penalties and could result in the death of the offender. For the United States, however, it is merely a means of removing someone from office, though the conduct that gives rise to impeachment can also serve as a basis for a criminal prosecution. While the framers debated impeachment relatively little, it does appear clear that the language included in the Constitution represented a compromise between those who thought officeholders ought to be removable by the people's representatives for any "maladministration" and those who believed the president and the judges simply could not function if they were subject to removal from office at the discretion of the legislature. Thus, they limited impeachable offenses to "Treason, Bribery, or other high Crimes and Misdemeanors." Treason and bribery are clear enough, but the phrase "other high Crimes and Misdemeanors" is not. While the statement in Article III about trials by jury seems to link impeachments with crimes, several English impeachments that were models for the framers did not. And the word "misdemeanors" at the time of the writing of the Constitution meant only "misdeeds" rather than carrying the connotation of minor crimes, as it did later.

Relatively few federal officials have been impeached and tried, although the House has initiated impeachment proceedings against three presidents and one justice of the U.S. Supreme Court. The lower court judges who have been impeached have generally been convicted in their Senate trials, and all of them, with the exception of the first judge impeached, John Pickering, who was a habitual drunkard and probably was insane, were guilty of criminal conduct. Following impeachment, most of these judges went to prison or faded into obscurity, although one was subsequently elected as a member of the House of Representatives.

Associate Justice Samuel Chase

After Pickering's removal in 1803, the House began impeachment proceedings against Associate Justice Samuel Chase. Chase had been a strong partisan of John Adams in the election of 1800, and when Thomas Jefferson won that election, Chase found it difficult to hide his displeasure. He seemed sympathetic to the prosecution of Jeffersonian editors for seditious libel during the election campaign and afterward he railed against the administration during a grand jury charge in 1803. The House of Representatives voted articles against him in 1804 and his trial before the Senate in 1805 was a major social, political, and cultural event. Chase had committed no crimes, and his impeachment seems to have been brought both because of his harsh criticism of the Jeffersonians and because his jurisprudential notions on the roles of judge and jury differed from theirs. In the end many Jeffersonians became convinced Chase's removal would compromise the independence of the judiciary and the Senate could not find the required two-thirds vote for his conviction. Chase's acquittal established the principle that judges should not be removed for political reasons and his impeachment suggested the similar notion that judges should seek to remain above politics.

President Andrew Johnson

Andrew Johnson assumed the presidency following the assassination of Abraham Lincoln in 1865. The nation had just ended the Civil War and Congress and the new president were embroiled in disputes over how to accomplish the reconstruction of the Union. Many congressional Republicans suspected that Johnson harbored southern sympathies, so to restrict his ability to control the course of events Congress passed, over Johnson's veto, the Tenure of Office Act (1867), a statute restricting the president from removing any cabinet members until the Senate had confirmed their successors. The constitutionality of this statute was dubious, as the power to hire and fire subordinate executive officials would seem to be a presidential prerogative, but some, even at the time of the framing, believed that such removal could not take place without the concurrence of the same Senate that con-firmed such appointments. Accordingly, when Johnson challenged Congress by dismissing his secretary of war, Edwin Stanton, whose sympathies were with Congress rather than with the president, the House brought articles of impeachment against Johnson. Johnson, too, was acquitted, but by only one vote. His impeachment was certainly the product of unusual circumstances, but it did seem to imply that ignoring congressional sentiment or abuse of office might constitute "high Crimes and Misdemeanors." Congress had even taken care to specify in the Tenure of Office Act that failure to follow the act would be a "high misdemeanor."

President Richard M. Nixon

The next case involving a presidential impeachment came more than a century later, and was also concerned with abuse of office, although the articles contemplated involved the commission of crimes as well. This was the proposed impeachment of President Richard M. Nixon and was the final chapter in a political crisis known as Watergate. The Watergate was an apartment complex in Washington, D.C., that housed the offices of the Democratic National Committee. During the presidential campaign of 1972, operatives eventually linked to persons working in Nixon's White House broke into the offices, seeking materials that have never been revealed. The White House sought to cover up its involvement in the debacle, at one point even misleading the Federal Bureau of Investigation (FBI) by claiming that important Central Intelligence Agency (CIA) matters would be compromised if the federal investigatory agency probed too deeply into the White House's operatives. After the Supreme Court forced the White House to turn over taped evidence of meetings Nixon attended that involved plans to misuse the FBI and CIA for political damage control, the president's position became untenable. The Senate held hearings that exposed all sorts of official misconduct, and trials of the Watergate burglars revealed the connections with the White House. The House Judiciary Committee completed its hearings on impeachment articles and recommended impeachment to the full House. Nixon's political support deteriorated even among members of his own party, and in August 1974, before the full House could vote, he became the first president to resign his office. Doing so, he avoided becoming the first elected president to be impeached.

President William Jefferson Clinton

That dubious distinction went to William Jefferson Clinton in December 1998. The Nixon impeachment and the Chase impeachment were the models most often turned to in the proceedings against Clinton, although the genesis of his impeachment was different from theirs. During Clinton's campaign for the presidency in 1992 and his entire tenure in office, he was accused of financial chicanery and extramarital dalliances. His political opponents also charged that he and his wife misused White House facilities and staff positions for the benefit of themselves and their personal and political associates. Pursuant to the then-active Independent Counsel Law, a special prosecutor, the former federal judge Kenneth Starr, was appointed to investigate. The Independent Counsel Law required that Starr submit to Congress any evidence he found of impeachable offenses.

After an investigation that cost more than $50 million, Starr found no clear evidence of any wrongdoing with regard to financial manipulations or misuse of the White House. Nevertheless, Starr referred to Congress evidence he had discovered in connection with a private lawsuit brought against Clinton alleging sexual misconduct. The evidence demonstrated the president lied under oath in a deposition, sought to get others to file false affidavits, sought to conceal evidence, lied to a grand jury investigating these events, and sought through other means to "obstruct justice" in the case. To the end Clinton denied any wrongdoing, but the evidence of his perjury and obstruction of justice was clear and strong enough for the civil trial court judge to fine him for contempt. Clinton lost his license to practice law in Arkansas for five years.

A majority of the House of Representatives, following some exceptionally stormy hearings before the House Judiciary Committee, in December 1998 voted articles of impeachment against the president for his perjury and obstruction of justice. Virtually all of the House Republicans voted for the measure, and as they controlled the chamber and only a majority is required for impeachment, they prevailed. No witnesses appeared before the Senate, a first in impeachment trial proceedings, and the House managers were severely restricted in the evidence they were allowed to present. The Senate voted on 12 February 1999. Not one Senate Democrat voted to remove the president, though many criticized his miscon-duct. Fifty Republicans voted to convict on one of the charges and forty-five voted to convict on the other, numbers far short of the two-thirds majority, so Clinton served his remaining two years in office.

The great constitutional question in the Clinton proceedings was whether or not the president's conduct in a private lawsuit was proper grounds for impeachment and removal from office. If Clinton was guilty of the miscon-duct with which he was charged, and few reasonable observers doubted that he was guilty of the commission of many felonies, his detractors said this was intolerable in the only federal official who takes a constitutional oath to take care that the laws are faithfully executed. Further, the Republicans maintained that this evidence of bad character was sufficient to prove Clinton should not continue as president. Clinton's Democratic defenders argued that, even if he had done the things alleged, these were essentially private matters, that such personal peccadilloes were not disqualifications for public office. It was true that earlier impeachment cases seemed to involve grave matters of state or abuse of office and that Clinton's misdeeds seemed different in kind. Nevertheless, some scholars supporting the impeachment pointed out that the framers considered personal virtue important and wrote that impeachment was a tool to ensure that only "fit characters" served the nation. Clinton's acquittal and the political maelstrom his impeachment unleashed likely means that impeachment will be reserved in the near future for cases of clearly official misconduct. But it is also likely that the "character" issue will remain an important one in elective politics.

BIBLIOGRAPHY

Berger, Raoul. Impeachment: The Constitutional Problems. Cambridge, Mass.: Harvard University Press, 1973.

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

Hoffer, Peter Charles, and N. E. H. Hull. Impeachment in America, 1635–1805. New Haven, Conn.: Yale University Press, 1984.

Kutler, Stanley I. The Wars of Watergate: The Last Crisis of Richard Nixon. New York: Knopf, 1990.

Presser, Stephen B. "Would George Washington Have Wanted Bill Clinton Impeached?" George Washington University Law Review 67 (1999): 666–681.

Whittington, Keith E. Constitutional Construction: Divided Powers and Constitutional Meaning. Cambridge, Mass.: Harvard University Press, 1999.

Stephen B.Presser

See alsoConstitution of the United States ; Impeachment Trial of Andrew Johnson ; Impeachment Trial of Bill Clinton ; Impeachment Trial of Samuel Chase ; andvol. 9:Constitutional Faith .

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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 (19131994), a then-unknown Democratic congresswoman from Texas momentarily caught the publics attention. Barbara Jordan (19361996) 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 Jordans 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 (67); Art. II Sec. 2 (1), Sec. 4), Jordan would know exactly what the rules were that governed the process. In fact, the Constitutions language on impeachment is as difficult to interpret as pharaohs 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 kings 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 (17321818), 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 presidentsAndrew Johnson (18081875) 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 (17491800) 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 (18291890) 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 (19132006), in leading the effort to impeach Justice William O. Douglas (18981980) (Ford and fellow Republicans were concerned both about the Justices 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, Fords 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 Nixons attorney, James St. Clair (19202001), and by law professor Raoul Berger (19012000). 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 détat and that the underlying act, a tryst with a White House intern, was a purely private act. Supporters of the impeachment argue that Clintons 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 (17381805), 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. Pickerings impeachment leads some to argue that since judges serve during good behavior (referring to Article III, Section 1 of the Constitution, which concerns a judges 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

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impeachment

impeachment, formal accusation issued by a legislature against a public official charged with crime or other serious misconduct. In a looser sense the term is sometimes applied also to the trial by the legislature that may follow. Impeachment developed in England, beginning in the 14th cent., as a means of trying officials suspected of dereliction of duty. The English procedure was for the House of Commons to prosecute by presenting articles of impeachment to the House of Lords, which rendered judgment. Any penalty, including death, might be inflicted. The impeachment (1787) and trial (1788–95) of Warren Hastings was among the last of the English cases.

In the United States impeachment of public officials is provided for in the federal government and in most states. In federal matters the U.S. Constitution gives the House of Representatives the power to impeach civil officers of the United States, including the President and Vice President, but not including members of Congress. Impeachments are tried by the Senate, with the concurrence of two thirds of the members present needed for conviction. The sole penalties on conviction are removal from office and disqualification from holding other federal office; however, the convicted party is liable to subsequent criminal trial and punishment for the same offense.

There have been 19 impeachments tried by the Senate and eight convictions. Three of the best-known cases, which did not result in conviction, were those of Supreme Court Justice Samuel Chase, President Andrew Johnson, and President Bill Clinton (see Lewinsky scandal). In 1974 the Judiciary Committee of the House of Representatives voted to bring impeachment charges against President Richard Nixon (see Watergate affair), but Nixon resigned before the House took action.

See studies by I. Brant (1972), R. Berger (1973), C. L. Black, Jr. (1974), J. R. Labovitz (1978), and R. A. Posner (1999).

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impeachment

impeachment was a trial by the House of Lords at the instigation of the House of Commons, which presented articles and arranged the management. The first clear example was the presentation in 1386 of Michael de la Pole, earl of Suffolk, but the practice became common in the 17th cent. with the struggle between crown and Parliament, when a number of royal ministers—Bacon, Middlesex (Cranfield), Strafford, and Danby—were impeached. In 1710 the Whig government attempted to use impeachment against its critics by prosecuting Dr Sacheverell, but it misfired badly. The impeachment of Warren Hastings, which went on for seven years and ended in acquittal, helped to discredit the process and the impeachment of Henry Dundas, Viscount Melville, in 1806 for peculation was the last. Impeachments were normally held in Westminster Hall with the lord high steward or the lord chancellor presiding

J. A. Cannon

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impeachment

impeachment Prosecution of a public official by the legislature of a state. In Britain, it is conducted by the House of Commons with the House of Lords as judge, and in the USA by the House of Representatives with the Senate as judge.

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