Hi everyone! Slightly more than a year ago, we wrote what we thought would be an unusual edition of Monday Methods, when a president was facing impeachment. Maybe we tempted Fate (or Clio) in posting that, because here we are again, needing to offer an explainer of the the impeachment process in the U.S. Congress, and a space to ask questions/clear up misconceptions. We did not anticipate the seditious activities occurring at the United States Capitol last week when we wrote the previous post. The riot at the Capitol at the request of the President makes it fairly likely that Donald Trump will be the first president ever to be impeached twice. Edit: The House has now introduced articles of impeachment.
This is not the place to discuss the current impeachment proceeding in the U.S. House of Representatives, but the mod-team has noticed a bit of an uptick in questions about the process, so we thought this would be a good reason to talk about the process historically. Posts referring to the current proceedings will be removed.
So, let's be about it, people!
Impeachment is a term that refers both to the process of gathering evidence and introducing articles of impeachment against a president, and more specifically, the act of voting on articles of impeachment in the House of Representatives, which is the first step in the broader process of removing a federal officer from their position. Impeachment is not a removal from office, but a vote on impeachment functions as an official indictment that results in a trial. (Federal officers, of course, include the President and Vice President, but also other members of the federal government, such as judges.)
The U.S. Constitution outlines the impeachment process in Article 2, Section 4, which reads:
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.
If a person is convicted by the Senate following an impeachment in the House, there can be several consequences, as outlined in Article I, Section 3 of the Constitution:
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.
In plain language, that means that the Senate can punish someone convicted in an impeachment trial by removing them from office and/or prohibiting them from holding federal office in the future, but that an impeachment trial and conviction does not carry with it criminal or civil penalties. In other words, the Senate couldn't punish an impeached person with jail time, fines, etc., but also, an impeachment conviction does not mean that the person is not liable to civil or criminal charges.
Impeachment is a process that starts in the House of Representatives. The House can in theory simply hold a floor vote on an article of impeachment, and, if it passes, the president is impeached. However, in the three most recent impeachment proceedings (Clinton, Nixon, and Trump), house committees debated articles of impeachment before bringing them to the floor.
After an impeachment in the House, the president is put on trial in the Senate, with the chief justice of the United States (currently John Roberts) presiding over the trial.
Members of the House of Representatives serve as prosecutors, and the president would have defense lawyers. In the three cases where a president was impeached previously, the Senate had to work out rules of the proceedings beforehand, including the length of time the trial would take, what kind of testimony would be allowed, whether to call witnesses, etc.
If, at the end of the trial in the Senate, two-thirds of senators vote to convict, the president would be removed from office and the Vice President would become President.
Yes, three presidents have been impeached — Andrew Johnson in 1868, Bill Clinton in 1998, and Donald Trump in 2019. None was convicted in their Senate trial, and Johnson and Clinton both finished their terms in office.
Richard Nixon was not impeached, although articles of impeachment were being debated by the House when he resigned. His Vice President, Gerald Ford, became president when he resigned.
Impeachment and conviction is also a thing that can happen to other civil servants. See the last section for more information.
This is a term from British common law, which can be boiled down to an accusation of abuse of power by a public official. It’s not limited to criminal offenses. One of the ways that we gain some insight into what the framers of the Constitution thought is in their contemporary writings; in Federalist no. 65, Alexander Hamilton described the process as such:
A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.
Impeachment itself is inherently is a political process that courts won't get involved in. (Nixon v. United States, 506 U.S. 224 (1993) -- no, not that Nixon, a judge named Nixon.)
Each past impeachment proceeding proceeded from slightly different grounds.
In 1868, Andrew Johnson was impeached under several articles, the fundamental issue being a dispute with Congress about his power to fire and appoint cabinet officials. The main article dealt with a dispute over the Tenure in Office act, which Congress had passed to prevent Johnson from firing officials whose appointment had required the "advice and consent" of the Senate without the consent of the Senate. (That is, the Senate wanted the power to concur in the removals.) Johnson was acquitted of that charge and, later, two others, after which the trial adjourned.
In October of 1973, the House began an impeachment inquiry into Richard Nixon after the “Saturday Night massacre,” when Nixon ordered three top Justice Department officials to fire a special prosecutor looking into the Watergate affair; two resigned before Robert Bork complied with his order. In February of 1974, the House voted to give the Judiciary Committee authority to investigate whether “high crimes and misdemeanors” had occurred in Nixon’s presidency. Judiciary reported articles out to the full House in July, but Nixon resigned in early August before they could be voted on.
Bill Clinton was impeached in December of 1998 on grounds of perjury to a grand jury and obstruction of justice. A Senate trial in January 1999 failed to convict Clinton.
Donald Trump was impeached in December of 2019 on two charges: abuse of power and obstruction of Congress. Both were linked to the claim that he had solicited foreign interference in the 2020 U.S. presidential election. A Senate trial in 2020 failed to convict Trump.
Again, due to our 20-year rule, that's out of scope here; but with only a few days left in Trump's term (Joe Biden becomes president at noon Eastern US time on Jan. 20), an impeachment proceeding in the House may lead to a Senate impeachment trial after Trump leaves office. Your preferred news outlet will likely cover any further proceedings.
There is precedent for this -- William Belknap, President Grant's war sectetary, stood trial in the Senate for graft following his resignation. Given that the current Senate majority leader has shared plans for a post-term impeachment trial for President Trump, it is at least possible that a proceeding could happen after he leaves office. At that point, the possible punishment would not hinge upon his removal from office, that being a moot point, but his ability to serve in government again. (Sen. McConnell will no longer be majority leader once Georgia certifies its Senate elections and its two new Senators are sworn in.)
For more information on historical impeachments, you can check out this website from the U.S. House of Representatives, and in particular this page which lists all persons who have been impeached and/or convicted of "high crimes and misdemeanors."
Thanks for writing that up! This has definitely been an historical presidency...and it's not quite over yet.
Is there a time limit to impeachment? Could the House decide, say 3/10/40 years from now that they want to impeach a president for a crime committed today? Is there a formal expiration date for when you can impeach a president from the date that they committed the crime?
I also bring up a near-impeachment, that of Spiro Agnew, in a comment I just posted about Ford's pardon of Nixon. While it's largely been forgotten, one of the more interesting issues at the time was that there was no legal consensus on whether a sitting President or Vice President could be indicted while in office without impeachment, and Agnew leveraged the Nixon's administration concern over that becoming precedent to walk away with a slap on the wrist. (That has now been replaced by indictment yes, trial outside of impeachment no.)
Ford's own views on impeachment - "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history" - were made during a controversial attempt to impeach Supreme Court Justice William O. Douglas in 1970. That failed miserably and got him in a bit of hot water during hearings on his Vice Presidential confirmation process 3 years later, but while absolutely hideous from a constitutional and scholarly perspective, on a purely practical level, it's rather pithy but not all that far off.
Kudos to you, mods, for doing this.
Are there any other similar (weighty) procedures that might be use as a rough analog to impeachment, to give us an idea of how feasible a quick (in a matter of days) impeachment could be?
We are talking about something with few precedents (though I shudder at the thought that most of them have now occurred within my own lifetime), but maybe there are some other situations that should usually take a long time but were fast-tracked in the past.
Small correction, if I may. Donald Trump's impeachment charges were linked to the claim that he had solicited foreign interference in the 2016 election, not the 2020 election.