[House Practice: A Guide to the Rules, Precedents and Procedures of the House]
[Chapter 27. Impeachment]
[From the U.S. Government Publishing Office, www.gpo.gov]
HOUSE PRACTICE
A. Generally
Sec. 1. In General; House and Senate Functions
Sec. 2. Who May Be Impeached
Sec. 3. Grounds for Impeachment
Sec. 4. -- Impeachable Misconduct
Sec. 5. Effect of Adjournment
B. Procedure in the House
Sec. 6. In General; Initiation and Referral of Charges
Sec. 7. Committee Investigations
Sec. 8. Consideration in the House; Voting
C. Procedure in the Senate
Sec. 9. In General
Sec. 10. Voting and Judgment
Research References
U.S. Const. art. I, Sec. Sec. 2, 3; art. II, Sec. 4
3 Hinds Sec. Sec. 2001-2515
6 Cannon Sec. Sec. 454-552
Deschler Ch 14
Manual Sec. Sec. 173-176; 601-620
A. Generally
Sec. 1 . In General; House and Senate Functions
Impeachment is a constitutional remedy to address serious offenses
against the system of government. It is the first step in a remedial
process--that of removal from public office and possible
disqualification from holding further office. The purpose of
impeachment is not punishment; rather, its function is primarily to
maintain constitutional government. Deschler Ch 14 App. pp 726-728;
105-2, Dec. 19, 1998, pp 28107-9.
Impeachment proceedings have been initiated more than 60 times
since the adoption of the Constitution. 3 Hinds Sec. 2294; 6 Cannon
Sec. 498; Deschler
[[Page 592]]
Ch 14 Sec. 1. Nineteen of these cases resulted in impeachment by the
House: President Andrew Johnson in 1868, Secretary of War William W.
Belknap in 1876, Senator William Blount in 1797, President William J.
Clinton in 1998, and 15 Federal judges. Only eight impeachments have
led to Senate convictions--all of them Federal judges.
An impeachment is instituted by a written accusation, called an
``Article of Impeachment,'' which states the offense charged. The
articles serve a purpose similar to that of an indictment in an
ordinary criminal proceeding. Manual Sec. 609.
The power of impeachment is bifurcated by the Constitution. The
House is given the ``sole Power of Impeachment,'' and the Senate is
given ``the sole Power to try all Impeachments.'' U.S. Const. art. I,
Sec. 2, cl. 5; Sec. 3, cl. 6. Impeachments may be brought against the
``President, Vice President, and all civil Officers of the United
States.'' Conviction of ``Treason, Bribery, or other high Crimes and
Misdemeanors'' is followed by ``removal from Office'' and may include
``disqualification to hold'' further public office. U.S. Const. art.
I, Sec. 3, cl. 7; art. II, Sec. 4.
The term ``impeach'' is used in different ways at various stages
of the proceedings. A Member rises on the floor to ``impeach'' an
officer in presenting a resolution or memorial. 3 Hinds Sec. 2469. The
House votes to ``impeach'' in the constitutional sense when it adopts
an impeachment resolution and accompanying articles. Sec. 8, infra.
The Senate then conducts a trial on these articles and either convicts
by two-thirds vote or acquits the ``impeached'' Federal official.
Sec. 9, infra.
Sec. 2 . Who May Be Impeached
The ``President, Vice President, and all civil Officers of the
United States'' are subject to removal under the impeachment clause of
the Constitution. U.S. Const. art. II, Sec. 4. A private citizen who
has held no public office may not be impeached. 3 Hinds
Sec. Sec. 2007, 2315.
The term ``civil Officers'' in article II, section 4 of the
Constitution refers to those appointed by the President under article
II, section 3, clause 2. The term is broad enough to include all
officers of the United States who hold their appointment from the
Federal government, whether their duties be executive, administrative,
or judicial, or whether their position be high or low. Impeachment--
Selected Materials, Committee on the Judiciary, H. Doc. No. 93-7, Oct.
1973, p 691. On the other hand, military officers are not subject to
impeachment, since they are subject to disciplinary measures according
to military codes. 3 Willoughby, The Constitution (1929) Sec. 929; 9
Hughes, Federal Practice (1931) Sec. 7228.
[[Page 593]]
A Member of Congress is not a ``civil Officer'' within the meaning
of the impeachment provisions of the Constitution. 3 Hinds
Sec. Sec. 2310, 2316. The contention that a Senator was not a civil
officer within the meaning of the impeachment provisions of the
Constitution was sustained by the Senate in 1799. The Senate dismissed
impeachment charges brought to its bar by the House, finding that an
impeachment of a Senator was beyond its jurisdiction. 3 Hinds
Sec. 2318; Sec. 4, infra.
Federal judges are subject to removal under the impeachment
provisions of the Constitution. Of the 19 impeachments reaching the
Senate, 15 have been directed at Federal judges, and in eight of these
cases the Senate voted to convict: Pickering in 1803 (3 Hinds
Sec. Sec. 2319-2341); Humphreys in 1863 (3 Hinds Sec. Sec. 2385-2397);
Archbald in 1912 (6 Cannon Sec. Sec. 498-512); Ritter in 1936 (S. Doc.
No. 74-200, 1936); and Claiborne, Nixon, Hastings, and Porteous in
1986, 1988, 1989, and 2010, respectively (Manual Sec. 176).
Impeachment proceedings were initiated against a Member of the
President's Cabinet in 1876, when impeachment charges were filed
against William W. Belknap, who had been Secretary of War. The House
and Senate debated the power of impeachment at length and determined
that the Secretary remained amenable to impeachment and trial even
after his resignation. 3 Hinds Sec. Sec. 2007, 2467. In 1978, the
House voted to table a privileged resolution impeaching Andrew Young,
the United States Ambassador to the United Nations. 95-2, July 13,
1978, p 20606.
A Commissioner of the District of Columbia has been held not to be
a civil officer subject to impeachment under the Constitution. 6
Cannon Sec. 548. Under section 596(a) of title 28, United States Code,
an independent counsel appointed to investigate the President may be
impeached. A resolution impeaching such independent counsel
constitutes a question of the privileges of the House under Rule IX.
Manual Sec. 604.
Effect of Resignation
The House and Senate have the power to impeach and try an accused
official who has resigned. Deschler Ch 14 Sec. 2. It was conceded (in
the Belknap impeachment proceeding described above) that a Cabinet
Secretary remains amenable to impeachment and trial even after his
resignation. 3 Hinds Sec. Sec. 2317, 2318. As a practical matter,
however, the resignation of an official about to be impeached
generally puts an end to impeachment proceedings because the primary
objective--removal from office--has been accomplished. This was the
case in the impeachment proceedings begun against President Richard M.
Nixon in 1974 and Judge George English in 1926. Deschler Ch 14
Sec. Sec. 2.1, 2.2. President Nixon resigned following the decision of
the Committee on the Judiciary to report to the House recom
[[Page 594]]
mending his impeachment, and further proceedings were discontinued.
93-2, H. Rept. 93-1305, p 29361. Judge English resigned before
commencement of trial by the Senate and the proceedings were
discontinued at that point. 6 Cannon Sec. 547. Judge Delahay (1873)
and Judge Kent (2009) likewise resigned prior to Senate proceedings.
Sec. 3 . Grounds for Impeachment
Generally
The Constitution defines the grounds for impeachment and
conviction as ``Treason, Bribery, or other high Crimes and
Misdemeanors.'' U.S. Const. art. II, Sec. 4. When the House determines
that grounds for impeachment exist, the articles of impeachment are
presented to the Senate. Any one of the articles may provide a
sufficient basis or ground for conviction. Deschler Ch 14 Sec. 3.
The phrase ``high Crimes and Misdemeanors'' has been interpreted
broadly. The framers of the Constitution adopted the phrase from the
English practice. At the time of the Constitutional Convention, the
phrase ``high crimes and misdemeanors'' had been in use for more than
400 years in impeachment proceedings in the British Parliament. Some
of these impeachments charged high treason; others charged high crimes
and misdemeanors. The latter included both statutory offenses and
nonstatutory offenses. Many of the charges involved abuse of official
power or trust. Deschler Ch 14 App. pp 706-708.
An offense must be serious or substantial in nature to provide
grounds for impeachment. This requirement flows from the language of
the clause itself--``high Crimes and Misdemeanors.'' Although there is
some authority to the contrary, it is generally accepted that the
adjective ``high'' modifies ``Misdemeanors'' as well as ``Crimes.''
Impeachment--Selected Materials, Committee on the Judiciary, H. Doc.
No. 93-7, Oct. 1973, p 682. As to what constitutes a serious,
impeachable offense, one commentator has said:
To determine whether or not an act or a course of conduct is
sufficient in law to support an impeachment, resort must be had to
the eternal principles of right, applied to public propriety and
civil morality. The offense must be prejudicial to the public
interest and it must flow from a willful intent, or a reckless
disregard of duty. . . . It may constitute an intentional violation
of positive law, or it may be an official dereliction of commission
or omission, a serious breach of moral obligation, or other gross
impropriety of personal conduct that, in its natural consequences,
tends to bring an office into contempt and disrepute.
Brown, The Impeachment of the Federal Judiciary, 26 Harv. L. Rev. 684,
703, 704 (1912).
[[Page 595]]
The time when the offenses were committed is a factor to be taken
into consideration. In 1973 the House declined to take any action on a
request by Vice President Agnew for an investigation into allegations
of impeachable offenses where the offenses were not committed during
his term of office as Vice President and where the offenses were
pending before the courts. 93-1, Sept. 25, 1973, p 31368.
Exactly 100 years earlier, in a case that also involved the Vice
President, the Committee on the Judiciary found that Schuyler Colfax
could not be impeached for an alleged offense committed before his
term of office as Vice President (the alleged conduct occurring while
he was Speaker). 3 Hinds Sec. 2510.
Presidential Impeachments
In 1998 the Committee on the Judiciary recommended to the House
four articles of impeachment against President Clinton, two of which
the House adopted. 105-2, H. Res. 611, Dec. 19, 1998, pp 28110-12. The
first and third articles, which the House adopted, charged the
President with providing perjurious testimony to a Federal grand jury
and with obstructing justice in a Federal civil action. The second and
fourth articles, which the House rejected, charged him with providing
perjurious testimony in a Federal civil deposition and with abuse of
power for failing to adequately respond to questions asked by the
Committee on the Judiciary during the impeachment inquiry. 105-2, H.
Rept. 105-830, pp 108, 118, 119, 121. President Clinton was acquitted
in the Senate on both articles adopted by the House. 106-1, Feb. 12,
1999, pp 2375-79.
In 1974 the grounds for invoking the impeachment power against the
President were illustrated when the House initiated an inquiry into
President Nixon's conduct as a result of charges arising out of a 1972
break-in at the Democratic National Headquarters in the Watergate
Office Building in Washington, DC. The Committee on the Judiciary
recommended to the House three articles of impeachment against
President Nixon in July 1974. The articles charged him with abuse of
his Presidential powers, obstruction of justice, and contempt of
Congress. Deschler Ch 14 Sec. 3.7. Before the full House voted on
these articles, President Nixon resigned. His resignation terminated
further action on the issue, although the articles were submitted to
and accepted by the House by adoption of a resolution of
``acceptance'' considered under suspension of the rules rather than a
resolution of impeachment. 93-2, Aug. 20, 1974, pp 29219-362.
In 1868 the House impeached President Andrew Johnson on the ground
that he had violated the Tenure of Office Act by dismissing a Cabinet
chief. Johnson was acquitted in the Senate. 3 Hinds Sec. Sec. 2440,
2443.
[[Page 596]]
Judicial Impeachments
Since Federal judges hold office ``during good Behaviour,'' it has
been suggested that misbehavior properly defines the bounds of ``high
Crimes and Misdemeanors'' or even that lack of good behavior
constitutes an independent standard for impeachment. U.S. Const. art.
III, Sec. 1; 6 Cannon Sec. 464. The more modern view, however, is that
the ``good Behaviour'' clause more aptly describes judicial tenure;
that is, the clause does not constitute a standard for impeachability
but merely means that Federal judges hold office for life unless they
are removed under some other provision of the Constitution. Under this
view, the power of removal together with the appropriate standard are
contained solely in the impeachment clause. Impeachment--Selected
Materials, Committee on the Judiciary, H. Doc. No. 93-7, Oct. 1973, p
666.
The grounds for impeachment of Federal judges were scrutinized in
1970 during an inquiry of a special subcommittee of the Committee on
the Judiciary into the conduct of Associate Justice Douglas of the
Supreme Court. The report of that special subcommittee concluded that
a Federal judge could be impeached for judicial conduct that is either
criminal or a serious abuse of public duty, or for nonjudicial conduct
that is criminal. Deschler Ch 14 Sec. 3.13 (proceedings discontinued
for lack of evidence). The committee report recommending impeachment
of President Clinton also discussed judicial impeachments. 105-2, H.
Rept. 105-830, pp 110-18.
Sec. 4 . -- Impeachable Misconduct
Impeachments have commonly involved charges of misconduct
incompatible with the official position of the office holder. This
conduct falls into three broad categories: (1) abusing or exceeding
the lawful powers of the office; (2) behaving officially or personally
in a manner grossly incompatible with the office; and (3) using the
power of the office for an improper purpose or for personal gain. See
Deschler Ch 14 App. p 719.
Abusing or Exceeding the Powers of the Office
The impeachment by the House of Senator William Blount in 1797 was
based on allegations that he attempted to incite an Indian attack in
order to capture certain territory for the British. He was charged
with engaging in a conspiracy to compromise United States neutrality
and with attempting to oust the President's lawful appointee as
principal agent for Indian affairs. 3 Hinds Sec. Sec. 2294-2318.
Although the Senate found that it had no jurisdiction over the trial
of an impeached Senator, it expelled him for having been guilty of a
``high misdemeanor, entirely inconsistent with his public trust and
duty as a Senator.'' Deschler Ch 14 App. p 720.
[[Page 597]]
The impeachment of President Andrew Johnson in 1868 was likewise
based on allegations that he had exceeded the power of his office.
Johnson was charged with violation of the Tenure of Office Act, which
purported to limit the President's authority to remove members of his
own Cabinet. Johnson, believing the Act unconstitutional, removed
Secretary of War Stanton and was impeached by the House three days
later. Johnson was acquitted in the Senate. 3 Hinds Sec. Sec. 2440,
2443.
A serious abuse of the powers of the office was a charge included
among the recommended articles impeaching President Nixon in 1974. The
Committee on the Judiciary found that his conduct ``constituted a
repeated and continuing abuse of the powers of the Presidency in
disregard of the fundamental principle of the rule of law in our
system of government.'' Deschler Ch 14 Sec. 3.7.
The House adopted an article of impeachment against President
Clinton alleging that he obstructed justice in the course of a Federal
civil action. However, the House rejected an article of impeachment
against President Clinton alleging that he engaged in conduct that
resulted in abuse of his office by inadequately responding to 81
written questions posed by the Committee on the Judiciary. 105-2, H.
Res. 611, Dec. 19, 1998, pp 28110-12; 105-2, H. Rept. 105-830, p 121.
President Clinton was acquitted by the Senate on that article adopted
by the House. 106-1, Feb. 12, 1999, p 2375-79.
Behavior Grossly Incompatible with the Office
Judge John Pickering was impeached by the House in 1803 for errors
in a trial in violation of his trust and duty as a judge, and for
appearing on the bench during the trial in a state of intoxication and
using profane language. Pickering was convicted in the Senate and
removed from office. 3 Hinds Sec. Sec. 2319-2341.
Associate Supreme Court Justice Samuel Chase was impeached by the
House in 1804. The House charged Chase with permitting his partisan
views to influence his conduct in certain trials. His conduct was
alleged to be a serious breach of his duty to judge impartially and to
reflect on his competence to continue to exercise the power of the
office. Chase was acquitted in the Senate. 3 Hinds Sec. Sec. 2342-
2363.
Judge West Humphreys was impeached by the House and convicted in
the Senate in 1862 on charges that he joined the Confederacy without
resigning his Federal judgeship. Judicial prejudice against Union
supporters also was alleged. 3 Hinds Sec. Sec. 2385-2397.
Judge Mark W. Delahay was impeached by the House in 1873 for
``personal habits,'' including intoxication and certain alleged
corrupt trans
[[Page 598]]
actions. He resigned prior to the commencement of proceedings in the
Senate. 3 Hinds Sec. Sec. 2504, 2505.
Judge George English was impeached by the House in 1926 for
showing judicial favoritism and for failure to give impartial
consideration to cases before him. It was alleged that his favoritism
had created distrust of his official actions and destroyed public
confidence in his court. 6 Cannon Sec. Sec. 544-547. Judge English
resigned before commencement of trial by the Senate, and the
proceedings were discontinued.
Judge Samuel B. Kent was impeached in the House in 2009 for sexual
misconduct with court employees, and for making false statements
relating to such conduct to federal officials. Judge Kent resigned
just after commencement of trial in the Senate, and the proceedings
were discontinued. 111-1, July 22, 2009, p __.
The House adopted an article of impeachment against President
Clinton alleging that he prevented, obstructed, and impeded the
administration of justice in a Federal civil action. 105-2, Dec. 19,
1998, pp 28110-12. President Clinton was acquitted by the Senate of
that article of impeachment. 106-1, Feb. 12, 1999, pp 2375-79.
Using the Office for an Improper Purpose or Personal Gain
In 1826 Judge James Peck was impeached by the House for taking
action against a lawyer who had publicly criticized one of his
decisions, imprisoning him, and ordering his disbarment. The House
charged that such conduct was unjust, arbitrary, and beyond the scope
of his judicial duties. Peck was acquitted in the Senate. 3 Hinds
Sec. Sec. 2364-2366. Vindictive use of power also constituted an
element of the charges in the articles of impeachment voted against
Judge Charles Swayne in 1903. It was alleged that he maliciously and
unlawfully imprisoned two lawyers and a litigant for contempt. 3 Hinds
Sec. Sec. 2469-2485.
Several impeachments have alleged the use of office for personal
gain or the appearance of financial impropriety while in office.
Secretary of War William Belknap was impeached by the House in 1876
for receiving substantial payments in return for his making of an
appointment. He was acquitted in the Senate. 3 Hinds Sec. Sec. 2444-
2468.
The use of office for direct or indirect personal monetary gain
was also involved in the impeachments of Judges Charles Swayne (1903),
Robert Archbald (1912), George English (1926), Harold Louderback
(1932), Halsted Ritter (1936), Samuel Kent (2009), and Thomas Porteous
(2010). Judge Swayne was charged with falsifying expense accounts.
Judge Archbald was charged with using his office to secure business
favors from litigants and potential litigants before his court. Judges
English, Louderback, and Ritter
[[Page 599]]
were charged with misusing their power to appoint and set the fees of
bankruptcy receivers for personal profit. 3 Hinds Sec. Sec. 2469-2485
(Swayne); 6 Cannon Sec. Sec. 498-512 (Archbald); Sec. Sec. 544-547
(English); Sec. Sec. 513-524 (Louderback); 74-2, Jan. 14, 1936, p 5602
(Ritter).
In 1986 the House agreed to a resolution impeaching Federal
District Judge Harry Claiborne, who had been convicted of falsifying
Federal income tax returns. His final appeal was denied by the Supreme
Court and he began serving his prison sentence. Because he declined to
resign, however, Judge Claiborne was still receiving his judicial
salary and, absent impeachment, would resume the bench on his release
from prison. Consequently, a resolution of impeachment was introduced
and the Committee on the Judiciary reported to the House four articles
of impeachment against Judge Claiborne. The resolution was called up
as a question of privilege and adopted. After trial in the Senate,
Judge Claiborne was convicted on three of the four articles of
impeachment and removed from office on October 9, 1986. Manual
Sec. 176.
In the 100th Congress, the House agreed to a resolution reported
from the Committee on the Judiciary impeaching Federal District Judge
Alcee Hastings. The resolution specified 17 articles of impeachment,
some of them addressing allegations of which the judge had been
acquitted in a Federal criminal trial. 100-2, H. Res. 499, Aug. 3,
1988, p 20206. The judge was convicted in a trial before the Senate in
the 101st Congress. 101-1, Oct. 20, 1989, pp 25329-35.
In 1989 the House voted to impeach Federal District Judge Walter
L. Nixon, Jr., after he had been convicted on two counts of perjury
before a grand jury about his relationship to a man whose son was
being prosecuted for drug smuggling. The impeachment resolution
charged that Judge Nixon had given false information about whether he
had discussed the case with the local district attorney and attempted
to influence its outcome. 101-1, May 10, 1989, p 8814. The Senate
convicted Judge Nixon on two of the three articles of impeachment and
removed him from office. 101-1, Nov. 3, 1989, pp 27102-4.
In 2010 the House voted to impeach Federal District Judge Thomas
Porteous for engaging in corrupt financial relationships with
attorneys and other court officials, knowingly making false statements
in bankruptcy proceedings, and knowingly making false statements to
the United States Senate and the Federal Bureau of Investigation
regarding his nomination to the office of District Judge. The Senate
convicted him on all four articles of impeachment and removed him from
office. 111-2, Dec. 8, 2010, p __.
[[Page 600]]
Noncriminal Misconduct
In the history of impeachments under the Constitution, the most
closely debated issue has been whether impeachment is limited to
offenses indictable under the criminal law--or at least to offenses
that constitute crimes--or whether the word ``Misdemeanors'' in the
impeachment clause extends to noncriminal misconduct as well. Although
the precedents are not entirely uniform, the majority clearly favor
the broader definition. As stated in the Ritter impeachment, the
modern view is that the provision for impeachment in the Constitution
applies not only to high crimes and misdemeanors as those words were
understood at common law, but also to acts that, though not defined as
criminal, adversely affect the public interest. 69-1, H. Rept. 69-653,
pp 9, 10.
The historical evidence establishes that the phrase ``high crimes
and misdemeanors''--which over a period of centuries evolved into the
English standard of impeachable conduct--had a special and distinctive
meaning, and referred to a category of offenses that subverted the
system of government. Deschler Ch 14 App. p 724. The American
experience with impeachment likewise reflects the view that
impeachable conduct need not be criminal. Of the 19 impeachments voted
on by the House since 1789, at least 11 involved one or more
allegations that did not charge a violation of criminal law. Deschler
Ch 14 App. p 725. The impeachment of Judge Pickering in 1803 was the
first such proceeding to result in conviction and was based, at least
in part, on noncriminal misconduct. The first three articles involved
a series of flagrant errors on the part of the judge in his conduct of
a case. 3 Hinds Sec. 2319. Similarly, in 1974, in recommending
articles impeaching President Nixon, the House Committee on the
Judiciary concluded that the President could be impeached not only for
violations of Federal criminal statutes but also for abuse of the
power of his office and for refusal to comply with proper subpoenas of
the committee. Deschler Ch 14 Sec. 3.7.
Less than one-third of all the articles the House has adopted have
explicitly charged the violation of a criminal statute or used the
word ``criminal'' or ``crime'' to describe the conduct alleged. Much
more common in the articles are allegations that the officer has
violated specific duties or an oath or seriously undermined public
confidence in such officer's ability to perform his official
functions. Deschler Ch 14 App. p 723.
The theory of the proponents of impeachment of President Johnson
was succinctly put by one of the managers in the Senate trial:
An impeachable high crime or misdemeanor is one in its nature or
consequences subversive of some fundamental or essential principle
of government or highly prejudicial to the public interest, and this
may consist of a violation of the Constitution, of law, of an
official oath, or of duty,
[[Page 601]]
by an act committed or omitted, or, without violating a positive
law, by the abuse of discretionary powers from improper motives or
for an improper purpose.
The Constitution of the United States of America--Analysis and
Interpretation, p 615, Government Printing Office, 2002.
The House adopted an article of impeachment against President
Clinton alleging that he gave perjurious, false, and misleading
testimony to a Federal grand jury. However, the House rejected an
article of impeachment against President Clinton alleging that he gave
perjurious, false, and misleading written and deposed testimony in a
Federal civil action. 105-2, H. Res. 611, Dec. 19, 1998, pp 28110-12.
Some argued that neither allegation could be the subject of a
successful criminal prosecution and thus would not be sufficient to
establish an impeachable offense. 105-2, H. Rept. 105-830, p 211.
Sec. 5 . Effect of Adjournment
An impeachment may proceed only when Congress is in session. 3
Hinds Sec. Sec. 2006, 2462. However, an impeachment proceeding does
not expire with adjournment. An impeachment proceeding begun in the
House in one Congress may be resumed in the next Congress. 3 Hinds
Sec. 2321; 111-1, Jan. 13, 2009, p __. An official impeached by the
House in one Congress may be tried by the Senate in the next Congress.
Manual Sec. 620; 3 Hinds Sec. Sec. 2319, 2320.
Although impeachment proceedings may continue from one Congress to
the next, the authority of the managers appointed by the House expires
at the end of a Congress; and managers must be reappointed when a new
Congress convenes. Manual Sec. 620. Managers on the part of the House
are reappointed by resolution. Manual Sec. 604; Deschler Ch 14
Sec. 4.2. Thus, the articles of impeachment against Judge Alcee
Hastings were presented in the Senate during the second session of the
100th Congress (100-2, Aug. 3, 1988, p 20223) but were still pending
trial by the Senate in the 101st Congress, when the House reappointed
managers (101-1, Jan. 3, 1989, p 84). The articles of impeachment
against President Clinton were presented to the Senate after the
Senate had adjourned sine die for the 105th Congress, and the Senate
conducted the trial in the 106th Congress. Manual Sec. 620.
[[Page 602]]
B. Procedure in the House
Sec. 6 . In General; Initiation and Referral of Charges
Generally
Under the modern practice, an impeachment is normally instituted
by the House by the adoption of a resolution calling for a committee
investigation of charges against the officer in question. This
committee may, after investigation, recommend the dismissal of charges
or it may recommend impeachment. Impeachment--Selected Materials,
Committee on the Judiciary, H. Doc. No. 93-7, Oct. 1973, p 699. A
resolution recommending impeachment is reported to the House
simultaneously with the articles of impeachment setting forth the
grounds for the proposed action. Sec. 8, infra. Following the adoption
of a resolution to impeach, the House appoints managers to conduct the
impeachment trial in the Senate. The Senate is then informed of these
facts by resolution. Manual Sec. 607; Deschler Ch 14 Sec. 9. When this
resolution reaches the Senate, the Senate advises the House as to when
the Senate will receive the managers appointed by the House. The
managers then present themselves and the impeachment articles to the
Senate, the House reserving the right to file additional articles
later. Manual Sec. 608a; Deschler Ch 14 Sec. Sec. 10, 11.
Initiation of Charges
In most cases, impeachment proceedings in the House have been
initiated either by introducing a resolution of impeachment through
the hopper or by offering a resolution of impeachment on the floor as
a question of the privileges of the House. Manual Sec. 603; Deschler
Ch 14 Sec. 5.
In the House, various events have been credited with setting an
impeachment in motion, including:
Charges initiated by a petition from one or more citizens and
referred to committee. 3 Hinds Sec. Sec. 2364, 2491, 2494.
Charges transmitted in a message from the President. 3 Hinds
Sec. Sec. 2294, 2319; 6 Cannon Sec. 498.
Charges transmitted from the legislature of a State. 3 Hinds
Sec. 2469.
Charges arising from a grand jury investigation. 3 Hinds
Sec. 2488.
Charges arising from an independent counsel investigation
under section 595(c) of title 28, United States Code. Manual
Sec. 603.
In the 93d Congress, Vice President Agnew used a letter to the
Speaker to attempt to initiate an investigation by the House of
charges against him of possible impeachable offenses, but the House
took no action on the request. Manual Sec. 603.
[[Page 603]]
In the 105th Congress, an independent counsel transmitted to the
House under section 593 of title 28, United States Code, a
communication containing evidence of alleged impeachable offenses by
the President. The House adopted a privileged resolution reported by
the Committee on Rules referring the communication to the Committee on
the Judiciary, immediately releasing portions to the public,
restricting Members' access to the communication, and restricting
access to committee meetings and hearings on the communication. Later,
the House adopted a privileged resolution reported by the Committee on
the Judiciary authorizing an impeachment inquiry by that committee.
Manual Sec. 603.
Referral to Committee
Resolutions introduced through the hopper that directly call for
an impeachment are referred to the Committee on the Judiciary, whereas
resolutions merely calling for a committee investigation with a view
toward impeachment are referred to the Committee on Rules. Deschler Ch
14 Sec. Sec. 5.10, 5.11. In the 105th Congress the House adopted a
privileged resolution reported by the Committee on Rules referring a
communication from an independent counsel alleging certain impeachable
offenses to the Committee on the Judiciary. Later, the House adopted a
privileged resolution reported by the Committee on the Judiciary
authorizing an impeachment inquiry by that committee. Manual Sec. 603.
All impeachments to reach the Senate since 1900 have been based on
resolutions reported by the Committee on the Judiciary. Before that
committee's creation in 1813, impeachments were referred to a special
committee for investigation. Manual Sec. 603; 6 Cannon Sec. 657.
Sec. 7 . Committee Investigations
Committee impeachment investigations are governed by those
portions of Rule XI relating to committee investigative and hearing
procedures, and by any rules and special procedures adopted by the
House and by the committee for the inquiry. Manual Sec. 605; Deschler
Ch 14 Sec. 6.3. The House may by resolution waive or supplement a
requirement of these rules in a particular case. In several recent
instances, the House agreed to a resolution authorizing the counsel to
the Committee on the Judiciary to take depositions of witnesses in an
impeachment investigation and waiving the provision of Rule XI that
requires at least two committee members to be present during the
taking of such testimony. Deschler Ch 14 Sec. 6.3; 105-2, H. Res. 581,
Oct. 8, 1998, p 24679; 110-2, H. Res. 1448, Sept. 17, 2008, p 19502;
111-1, H. Res. 424, May 12, 2009, p __. Authorities to conduct an
inves
[[Page 604]]
tigation in one Congress have been ``re-invigorated'' in a subsequent
Congress. 111-1, H. Res. 15, Jan. 13, 2009, p __.
Under the earlier practice the committee sometimes made its
inquiry ex parte. 3 Hinds Sec. Sec. 2319, 2343, 2385. However, the
modern trend is to permit the accused to testify, present witnesses,
cross-examine witnesses, and be represented by counsel. 3 Hinds
Sec. Sec. 2445, 2470, 2471, 2501, 2518; Deschler Ch 14 Sec. 6; 105-2,
H. Rept. 105-830. Constitutionality, see Sec. 9, infra.
Confidentiality of Material; Access
The House and the Committee on the Judiciary may adopt procedures
to ensure the confidentiality of impeachment inquiry materials and to
limit access to such materials. Deschler Ch 14 Sec. Sec. 6.9, 15.3;
105-2, H. Res. 525, Sept. 11, 1998, pp 20020, 20021. Where a Federal
court subpoenas certain evidence gathered by the committee in an
impeachment inquiry, the House may adopt a resolution granting such
limited access to the evidence as will not violate the privileges of
the House or its sole power of impeachment under the Constitution.
Deschler Ch 14 Sec. 6.13.
Subcommittee Investigations
An investigative subcommittee charged with an impeachment inquiry
is limited to the powers expressly authorized by the House or by the
full committee. Deschler Ch 14 Sec. 6.11; 105-2, H. Res. 581, Oct. 8,
1998, p 24679. After completing its investigation, the subcommittee
ordinarily submits recommendations to the full committee as to whether
impeachment is warranted. See, e.g., Final Report of the Special
Subcommittee on H. Res. 920 of the Committee on the Judiciary, 91-2,
committee print, Sept. 17, 1970.
Form
For forms of resolutions authorizing an investigation of the
sufficiency of grounds for impeachment and conferring subpoena power
and authority to take testimony, see Deschler Ch 14 Sec. 6.
Sec. 8 . Consideration in the House; Voting
Generally
The respondent in an impeachment proceeding is impeached by the
adoption of the House of articles of impeachment. Only a majority vote
is necessary, whereas a two-thirds vote of Members present is required
in the Senate for conviction and removal. U.S. Const. art. I, Sec. 3;
Impeachment--Selected Materials, Committee on the Judiciary, H. Doc.
No. 93-7, Oct. 1973, p 700. In this regard, as is the usual practice,
the committee's recommendations as reported in the resolution are not
binding on the House
[[Page 605]]
until they are adopted. In 1933 the House voted to impeach Judge
Harold Louderback, even though the Committee on the Judiciary found
insufficient grounds to warrant impeachment. 6 Cannon Sec. 514.
Impeachment Propositions as Privileged
A resolution impeaching an officer is highly privileged under the
Constitution and therefore supersedes other pending business,
including an election contest. Manual Sec. 604; 3 Hinds
Sec. Sec. 2045-2048, 2581; 6 Cannon Sec. 468. Such a resolution, if
reported, may be considered immediately in the House as a question of
privilege. It is, therefore, not subject to the three-day layover
requirement of rule XIII. Manual Sec. 604. It does not lose its
privilege from the fact that a similar proposition has been considered
previously during the same session. 3 Hinds Sec. 2408. However, a
resolution offered from the floor simply proposing an investigation is
not privileged, even though impeachment may be a possible consequence.
3 Hinds Sec. Sec. 2050, 2546; 6 Cannon Sec. 463.
Although charges or resolutions of impeachment are privileged,
they cannot be presented while another Member has the floor unless
yielded to for that purpose. Deschler Ch 14 Sec. 5.2. A resolution of
impeachment offered from the floor by a Member (other than the
Majority or Minority Leader) is not privileged for immediate
consideration because it is subject to the notice requirement of rule
IX. Manual Sec. 699.
A committee to which resolutions of impeachment have been referred
may report and call up as privileged resolutions incidental to the
consideration of the impeachment question. Manual Sec. 604; Deschler
Ch 14 Sec. 5.8. If, however, such a resolution is offered on the floor
by a Member on such Member's own initiative and not reported from the
committee to which the impeachment has been referred, it is not
privileged for immediate consideration because it is subject to the
notice requirement of rule IX. See Manual Sec. 699.
Propositions incidental to an ongoing impeachment proceeding taken
up as privileged (3 Hinds Sec. 2400) have included:
Reports relating to the investigation (3 Hinds Sec. 2402;
Deschler Ch 14 Sec. 8.2).
Resolutions providing for the selection of managers (6 Cannon
Sec. 517).
Propositions to abate an impeachment proceeding (6 Cannon
Sec. 514).
Proposals to confer subpoena authority or to provide funding
for the investigation (Manual Sec. 604; 6 Cannon Sec. 549).
Resolutions authorizing depositions by committee counsel
(Manual Sec. 604).
Following adoption of the articles of impeachment, the House
adopts resolutions appointing managers to present the articles before
the Senate, no
[[Page 606]]
tifying the Senate of the adoption of articles and appointment of
managers, and authorizing the managers to prepare for and to conduct
the trial in the Senate. Manual Sec. 607; 6 Cannon Sec. Sec. 499, 500,
514, 517. These privileged incidental resolutions may be merged into a
single indivisible privileged resolution. Manual Sec. 607.
On several occasions the Committee on the Judiciary, having been
referred a question of impeachment, reported a recommendation that
impeachment was not warranted and, thereafter, called up the report as
a question of privilege. Deschler Ch 14 Sec. 1.3. Under section 596(a)
of title 28, United States Code, an independent counsel appointed to
investigate the President may be impeached; and a resolution
impeaching such independent counsel constitutes a question of the
privileges of the House under rule IX. Manual Sec. 604.
Debate; Motions
Propositions of impeachment are considered under the general rules
of the House applicable to other simple House resolutions, unless the
House otherwise provides by special order of business. Deschler Ch 14
Sec. 8; 105-2, Dec. 18, 1998, pp 27846, 27847. Since 1912, the House
has considered the resolution together with the articles of
impeachment. Deschler Ch 14 Sec. 8.2. The House may consider the
resolution and articles under a unanimous-consent agreement fixing and
controlling the time for debate. Deschler Ch 14 Sec. Sec. 8.1, 8.4;
105-2, Dec. 18, 1998, pp 27846, 27847. The motion for the previous
question and the motion to recommit are applicable, and a separate
vote may be demanded on each article of impeachment contained in the
resolution. Manual Sec. 606a; Deschler Ch 14 Sec. Sec. 8.8-8.10. The
resolution also is subject to a motion to lay on the table before
debate thereon. Deschler-Brown Ch 29 Sec. 1.15.
A wide range of debate is permitted on impeachment proposals, and
a Member may refer to the political, social, and even the familial
background of the accused. Deschler Ch 14 Sec. 8.5. However, Members
must abstain from language personally offensive. Manual Sec. 370.
Furthermore, Members must abstain from references to the personal
conduct of sitting Members of the House or Senate. Manual Sec. 370.
To a privileged resolution of impeachment, an amendment in the
motion to recommit proposing instead to censure (which is not
privileged) was held not germane. Manual Sec. 604.
[[Page 607]]
C. Procedure in the Senate
Sec. 9 . In General
The sole power to try impeachments is vested in the Senate under
the Constitution. U.S. Const. art. I, Sec. 3, cl. 6. On the day of the
trial, the Senate resolves itself into a court for the trial of the
impeachment. Deschler Ch 14 Sec. 11.5. The President of the Senate
presides over the trial, except in the case of the impeachment of the
President of the United States or the Vice President, in which case
the Chief Justice presides. Deschler Ch 14 Sec. 11. Upon organization
of the court, the managers appear and the trial of the case proceeds.
In the later practice, the resolution and articles of impeachment have
been considered together and exhibited simultaneously in the Senate by
the House managers. 6 Cannon Sec. Sec. 501, 515; Deschler Ch 14
Sec. 11. Objections to the articles of impeachment on the ground that
they duplicate and accumulate separate offenses have been overruled.
Deschler Ch 14 Sec. Sec. 3.4, 13.6.
For precedents relating to the conduct of Senate impeachments, see
S. Doc. 93-102, ``Procedure and Guidelines for Impeachment Trials in
the United States Senate.'' For a detailed description of the
impeachment trial against President Clinton, see Manual Sec. 608a.
The presentation of the evidence follows a traditional sequence.
The evidence against the accused is first presented by the managers.
Evidence in defense is then presented by the accused, and the
concluding evidence is presented by the managers. The accused is
permitted to testify in answer to the charges contained in the
articles. 6 Cannon Sec. Sec. 511, 524; Deschler Ch 14 Sec. 12.11.
Counsel are permitted to appear, to be heard, to argue on preliminary
and interlocutory questions, to deliver opening and final arguments,
to submit motions, and to present evidence and examine and cross-
examine witnesses. Deschler Ch 14 Sec. 12. House counsel did not
participate in the trial of President Clinton.
The use of a Senate committee in judicial impeachment proceedings
does not violate any constitutional rights or offend fundamental
notions of justice. Hastings v. United States Senate, Impeachment
Trial Committee, 716 F. Supp. 38 (D.D.C. 1989). In one recent case,
the court denied the claim of a former Federal judge that conviction
voted by the Senate on two articles of impeachment adopted by the
House was void because the judge was not afforded trial before the
``full'' Senate, rather than before a Senate committee. The court
ruled that the Senate's denial of the former judge's motion for
hearing before the full Senate, while according him the opportunity to
present and cross-examine witnesses before the 12-member committee,
and
[[Page 608]]
an opportunity to argue both personally and by counsel before the full
Senate, did not make the controversy justiciable or the claim
meritorious. Nixon v. United States, 744 F. Supp. 9 (D.D.C. 1990),
aff'd 938 F.2d 239 (D.C. Cir. 1991), aff'd 506 U.S. 224 (1993).
At the conclusion of the evidence, there is argument, followed by
deliberation by the Senate in executive session and a vote in open
session. Deschler Ch 14 Sec. 13. Before the vote, the proceedings may
be dismissed in the Senate on the advice of the House managers.
Deschler Ch 14 Sec. 2.2.
Sec. 10 . Voting and Judgment
Under the Constitution, a two-thirds vote of Senators present is
required to convict an accused on an article of impeachment. The
articles are voted on separately under the Senate rules. U.S. Const.
art. I, Sec. 3, cl. 6; Deschler Ch 14 Sec. 13. The yeas and nays are
taken on each article. 3 Hinds Sec. Sec. 2098, 2339. In some
instances, the Senate has adopted an order to provide a method of
voting and putting the question separately and successively on each
article. 6 Cannon Sec. 524; Deschler Ch 14 Sec. 13.2.
The Constitution provides for removal from office on conviction
and also allows the further judgment of disqualification from holding
further office. U.S. Const. art. I, Sec. 3, cl. 7. No vote is required
on removal following conviction, since removal follows automatically
from conviction under this constitutional provision. Deschler Ch 14
Sec. 13.9. However, the further judgment of disqualification from
holding future office requires a majority vote. Deschler Ch 14
Sec. 13.10. The Senate has held that a question on removal and
disqualification is divisible. 3 Hinds Sec. 2397; 6 Cannon Sec. 512.
The impeachment and removal from office of a Federal District
Judge did not necessarily disqualify him from holding office as a
Member of the House, absent any specific action taken by the Senate to
disqualify him from future Federal office. Waggoner v. Hastings, 816
F. Supp. 716 (S.D. Fla. 1993).