Legalese — Impeachment

Impeachment is another one of those words that you hear a lot on the news and on social media a lot lately, and with varying degrees of accuracy.  I thought I would take the time in the column this week to explain exactly what impeachment is and how it works according to the United States Constitution.

A lot of people seem to confuse “impeachment” with “removal from office.”  It is not that at all.  Impeachment is more of a formal accusation.  It is more like an indictment in a criminal case than a pink slip or firing.  The power to make this accusation is given to Congress and comes directly in Article One of the Constitution.  Article One, Section Two, Paragraph Five, says, “The House of Representatives shall chuse [sic] their Speaker and other Officers; and shall have the sole Power of Impeachment.”

Once there is an Impeachment, then there has to be a trial, just like there would be a trial in a criminal case if there were an indictment.  That trial would be in the Senate, according to the Constitution, Article One, Section Three, Paragraphs Six and Seven, which say, “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.  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.”

What that means in plain English is that the trial happens in the Senate, with the Senate itself sitting as the jury.  If it is the President who is being impeached, then the Chief Justice (currently Justice John Roberts) would be in charge of the trial.  In a criminal trial, the jury verdict would have to be unanimous: in an impeachment trial, only 2/3 of the ‘jury’ has to agree to impeach.  If they agree to impeach, the only punishment is removal from office and a ban on holding office.  However, this doesn’t mean that you can’t also be criminally prosecuted for the same thing – you can’t make a double jeopardy claim.

While generally speaking we only talk about the President being impeached, it isn’t just the President that can be impeached.  According to Article Two, Section Four of the Constitution, “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.”  In fact, historically speaking, most impeachments in the U.S. have been judges[1].

The biggest question is, “What is a high Crime and Misdemeanor?”  This has been the subject of much debate, and there is no clear answer, although it is clear that it doesn’t have to be an actual indictable crime or misdemeanor.  The House Judiciary Committee put together a report called “Constitutional Grounds for Presidential Impeachment” as it prepared for President Richard Nixon’s impeachment in 1974, and it is a pretty good treatise on what that means.  You can find that report here. The House also has a formal rule book entitled “The House Practice: A Guide to the Rules, Precedents and Procedures of the House” which if you really have nothing better to do you can download here.  It has a chapter in it on rules, procedures, and precedents for impeachment.

The Senate has a companion volume of rules called “Rules and Procedures of Practice in the Senate When Sitting on Impeachment Trials.”  You can find it here.

Obviously, this is a whole lot more complicated than a 700-word article can explain.  I’ve linked to some good source documents if you really want to dig deeply into the subject.  Whatever your opinions on the shoulds or shouldn’ts, just make sure you are using the terms properly.

[1] There have been 19 impeachments in the history of the U.S.  15 judges, 2 presidents, 1 cabinet secretary, and 1 senator.  A few others, notably President Richard Nixon and Supreme Court Justice Abe Fortas, resigned rather than face impeachment.

Nothing in this article should be construed as legal advice.  It is being offered for informational purposes only.  

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