ABA Legal Fact Check debuted in August 2017 and is the first fact check website focusing exclusively on legal matters. This article has been republished with permission.
Since the first impeachment proceeding in 1797, the U.S. House of Representatives has initiated impeachment proceedings more than 60 times against top U.S. civil officials, including against three U.S. presidents — Andrew Johnson in 1868, Richard Nixon in 1974 and Bill Clinton in 1998. President Donald Trump is the fourth. Under the U.S. Constitution, the House has the “sole power” to begin an impeachment inquiry, and the Senate alone has the power to try an impeachment case referred by the House.
Despite this long history, the impeachment process raises several questions related to congressional rules and constitutional law. These include what is meant by the Constitution’s term “high crimes and misdemeanors” and what is the nature of the trial the Senate must conduct if the House files articles of impeachment.
The language regarding impeachment dates to centuries-old English law and represents a compromise of the Founding Fathers. One difficult issue was determining the seriousness of an offense that would lead to impeachment. The Founding Fathers debated whether an impeachable offense must reflect “corrupt conduct” or merely “malpractice or neglect of duty.”
Another sticky issue faced by the Founders was who should be the jury: The Senate, a judicial panel or a combination of the two? In arguing for the Senate, Alexander Hamilton summarized in Federalist No. 65 in 1788 the intent of impeachment: “Is it not designed as a method of NATIONAL INQUEST into the conduct of public men?”
The final language in Articles I and II of the U.S. Constitution gives the House of Representatives the “sole power” to impeach a federal officer by majority vote, a process akin to an indictment by a grand jury. The Constitution gives the Senate “sole power” to try all impeachment cases and requires “concurrence of two thirds of the members present.” The Constitution also states the chief justice of the U.S. Supreme Court will preside at a Senate trial for presidential impeachments.
Over the decades, the Senate has conducted formal impeachment proceedings 19 times, resulting in seven acquittals, eight convictions (all federal judges), three dismissals and one resignation. Presidents Andrew Johnson and Bill Clinton were the most notable to be found not guilty by the Senate after the House voted to impeach. In addition to trying impeachment charges, the Constitution gives the Senate the power — without mentioning a vote count — to disqualify a convicted officer from holding public office again. Under Senate rules, disqualification has happened twice, both by majority vote and involving federal judges (see footnote 856).
With high-profile impeachment inquiries, such as those involving Clinton and now Trump, the debate over what the Founding Fathers meant by “high crimes and misdemeanors” reignites. In an unsuccessful attempt to impeach U.S. Supreme Court Justice William O. Douglas in 1970, then-U.S. Rep. Gerald Ford of Michigan — who later became vice president and then president after Richard Nixon’s resignation — provided this blunt assessment: “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”
Individual senators decide for themselves whether the official must have committed an indictable offense to be convicted; no Senate rule or constitutional provision imposes that requirement.
The U.S. Supreme Court last weighed an impeachment issue in 1993. Then former U.S. District Court Judge Walter Nixon of Mississippi, who was tried in federal court and convicted of perjury and removed through impeachment, challenged the use of a Senate committee “to receive evidence and take testimony,” rather than the full Senate.
His counsel argued that the Constitution required the full Senate to hold a trial. But, the U.S. Supreme Court unanimously held the question was not reviewable by the courts, citing the language in the Constitution that says “the Senate shall have the sole power to try all impeachments.”
“While courts possess power to review legislative action that transgresses identifiable textual limits, the word ‘try’ does not provide such a limit on the authority committed to the Senate,” Chief Justice William Rehnquist wrote, extending what is known as the “political question doctrine” to impeachments.
Until recently, one lingering question was whether the Senate would have to hold a trial at all. But on Sept. 30, Senate Majority Leader Mitch McConnell, R-Ky., said under a 1986 interpretation of Senate rules the Senate would be required to consider any articles of impeachment received from the House. However, he also suggested the proceeding might end quickly. “How long you’re on it is a whole different matter,” McConnell said.
He might have been thinking about the 1999 Senate trial of Bill Clinton. Although an impeachment conviction requires a two-thirds vote of the Senate, the Senate considered a motion to dismiss the case shortly after its outset. The motion, which required a simple majority vote, failed. But neither the Senate’s impeachment rules nor the Constitution specifically addresses that possibility.
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