The Impeachment Judgment Clause

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.

—Michael J. Gerhardt

Introduction

The Impeachment Judgment Clause specifies the limited scope and nature of the judgments that the Senate may impose following conviction in impeachment trials. The Framers deliberately distinguished impeachment in this country from the British system. There were no limits to the punishments that the House of Lords could impose in impeachment proceedings—even death. The Framers limited the sanctions in the federal Constitution to those typically found in state constitutions: removal from the current office and disqualification from holding future office. The Constitution further provided that neither of these sanctions precluded civil or criminal legal liability for officials’ misconduct. Trump v. United States (2024) observed that “[t]he Clause both limits the consequences of an impeachment judgment and clarifies that notwithstanding such judgment, subsequent prosecution may proceed.”¹

History Before 1787

In the British system of impeachment, Parliament could impose any sanction it wished, including death and imprisonment. During the 1600s, with virtually every impeachment conviction, the House of Lords imposed some kind of criminal punishment, including but not limited to loss of office, prison, fines, and forfeiture of property. In the sixteenth and seventeenth centuries, the House of Lords imposed death sentences on impeached officials. However, the king was exempted from impeachment.

The colonies initially modeled their impeachment procedures on the English system, but they had imperfect knowledge regarding particular impeachments and convictions in the eighteenth century. As the colonists learned more, they increasingly crafted impeachment proceedings that deviated from the English system.

After independence, the states identified limits to the relative scopes of impeachable offenses, impeachable officials, and sanctions. For example, the Massachusetts constitution of 1780 provided that the “judgment” in an impeachment trial “should not extend further than to removal from office disqualification to hold or enjoy any place of honor, trust, or profit, under this Commonwealth.”² The delegates to the Constitutional Convention, being familiar with the features of the English impeachment process that they disliked, would follow the predominant practice within the states to restrict the sanctions following conviction.

The Constitutional Convention

On August 6, 1787, the Impeachment Judgment Clause was presented in the Committee of Detail’s report: “Judgment, in cases of Impeachment, shall not extend further than to removal from Office, and disqualification to hold and enjoy any office of honour, 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.”³ On August 28, the proposal was adopted without debate.⁴ The only change made by the Committee of Style was to remove a comma after “profit.”⁵ No further changes were made. The Office of Legal Counsel in the Department of Justice would later observe that “the records [of the Constitutional Convention] do not reflect any substantive discussion of the [Impeachment Judgment Clause’s] meaning.”⁶

For much of the Constitutional Convention, the delegates considered having the Supreme Court of the United States try impeachments, but this proposal was rejected. Gouverneur Morris of Pennsylvania remarked that “[a] conclusive reason for making the Senate instead of the Supreme Court the Judge of impeachments, was that the latter was to try the President after the trial of the impeachment.”⁷ That way, the courts could hear the prosecution of those who were impeached, including themselves or their colleagues.

The Ratification Debates

In Federalist No. 65, Alexander Hamilton explained that the “punishment” for “conviction upon impeachment” is not limited to “the chastisement of the offender.” After a person is “sentenced to a perpetual ostracism from the esteem and confidence and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law.” In Federalist No. 77, Hamilton observed that “the President is at all times liable to impeachment, trial, dismission [sic] from office . . . and to the forfeiture of life and estate by subsequent prosecution in the common course of law.”

The Impeachment Process

The Constitution lays out several steps in the impeachment process. First, the House of Representatives has the “sole Power” to impeach “the President, Vice President and all civil Officers of the United States.” It takes a simple majority to impeach an official. (See Essay No. 14.) Second, the “Senate shall have the sole Power to try all Impeachments.” (See Essay No. 20.) A conviction in the Senate requires the “Concurrence of two thirds of the Members present.” Under the Senate’s current practices, after an official is convicted by a two-thirds vote, he is automatically removed from office.⁸ However, “in earlier impeachment trials,” such as that of John Pickering in 1804, “the Senate took separate votes on guilt and removal.”⁹ The Senate dropped the bifurcated vote after a consistent string of votes on guilt and conviction that were identical.

If the official is convicted and removed, the Senate can take one more vote to disqualify that person from holding certain positions in the future. The Senate has disqualified three officials, all of whom were federal judges. In each case, the Senate took separate votes to remove and disqualify them. A disqualified person cannot “hold and enjoy any Office of honor, Trust or Profit under the United States.” During President Donald Trump’s second impeachment trial, the scope of the Impeachment Disqualification Clause was discussed but not resolved.¹⁰

The Constitution clearly provides that a conviction requires a two-thirds vote, but, as Professor Akhil Reed Amar has observed, “[does] not explicitly specify whether disqualification would require a two-thirds vote or a simple majority.”¹¹ The three instances in which the Senate disqualified officials may inform this inquiry. In 1862, the vote to disqualify Judge West H. Humphreys was unanimous.¹² In 1913, Judge Robert Archbald was convicted on several articles by more than a two-thirds vote but disqualified by a simple majority vote of 39 to 35.¹³ And in 2010, Judge Thomas Porteous’s disqualification vote was 94 to 2. Moreover, it is not clear that Judge Archbald ever sought to hold some covered office, so despite the intentions of the Senate, his disqualification vote may have been insufficient.¹⁴ In any event, a disqualification is permanent. The President can grant pardons “except in cases of impeachment.”¹⁵ (See Essay No. 105.)

Sequencing of Impeachments and Criminal Prosecutions

The Impeachment Disqualification Clause provides that “the Party convicted [in an impeachment trial] shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” This text gives rise to two primary questions.

First, can Congress impeach and remove an officer who was already convicted in a civil or criminal proceeding? The sequencing question became relevant in the late 1980s. Judges Harry Claiborne and Walter Nixon were convicted of federal offenses and imprisoned. Subsequently, Congress began impeachment proceedings against Claiborne and Nixon, who still received their judicial salaries while incarcerated. Could the House impeach judges who were already convicted? It could be argued that once the judges were convicted in a criminal court, they could no longer be impeached, but Congress adopted the alternate reading: The judges were impeached and removed following their criminal convictions.

Second, can an official who was impeached but not convicted still be subject to civil or criminal proceedings? President Trump, who was acquitted during his second impeachment trial, contended that he could not be prosecuted for conduct arising from his acquittal. In Trump v. United States (2024), the former President argued that an “un-convicted President is immune from prosecution.”¹⁶ Trump, citing Alexander Hamilton in the Federalist Nos. 65, 69, and 77, argued that “prosecution of the President can only come ‘after[]’ and ‘subsequent’ to Senate conviction.”¹⁷ In Federalist No. 69, for example, Hamilton wrote that, unlike the king, the president “would be liable to be impeached and removed” from office and “would afterwards be liable to prosecution and punishment in the ordinary course of law.”

However, Chief Justice John Roberts, writing for the majority, rejected Trump’s reading of Hamilton. The Court stated that “Hamilton did not endorse or even consider whether the Impeachment Judgment Clause immunizes a former President from prosecution.”¹⁸ The Court stated clearly that “[t]he President is not above the law” but also emphasized that “Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution.” Accordingly, “[t]he President . . . may not be prosecuted for exercising his core constitutional powers” and “is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.”¹⁹

Censure as an Alternative to Impeachment

The Impeachment Disqualification Clause provides that “Judgment in Cases of Impeachment shall not extend further than to removal from Office,” but could the judgment fall short of removal and disqualification in its severity? For example, could Congress censure an officeholder either as an alternative to impeachment or in condemnation of misconduct that falls short of an impeachable offense?

In 1834, the Senate censured then-President Andrew Jackson for trying to destroy the National Bank.²⁰ Jackson protested that the Constitution did not expressly authorize censuring Presidents and that impeachment therefore was the only constitutional means for holding him accountable for misconduct in office. In 1837, the Democrat-controlled Senate expunged his censure.²¹ (See Essay No. 28.) In 1848, the House condemned President James Polk for initiating an illegal war against Mexico,²² but this resolution did not call itself a censure.

During the impeachments of Presidents William Jefferson Clinton and Donald Trump, members of Congress floated the idea of a censure resolution to express Congress’s disapproval. The censure would have been an alternative to subjecting either Clinton or Trump to the impeachment process. In both cases, Congress ultimately decided against a censure. Some opponents of the censure argued that it was effectively a bill of attainder.²³ The Constitution expressly prohibits such a legislative determination of guilt in the absence of a judicial trial.²⁴ (See Essay No. 69.) Members of the House argued that any tangible effect as a result of a censure effectively transformed it into an illegal bill of attainder.²⁵

Late Impeachment

Can a former officer be convicted and disqualified after he has left office?²⁶ In the cases of Judges Humphreys, Archbald, and Porteous, the Senate proceeded with disqualification votes after it had convicted and removed each of them from office. Thus, as a technical matter, disqualification could be said to have applied after the officials were no longer in office.

The House of Representatives voted to impeach President Trump before his term ended on January 20, 2021.²⁷ However, the articles of impeachment were not delivered to the Senate until after Trump left office.²⁸ (There was some dispute about whether former President Trump was impeached until the articles were delivered.²⁹)

The Senate held an impeachment trial in February 2021 amid considerable debate about whether the Senate still had jurisdiction to hold such a trial. The House Managers and some scholars maintained that the Senate retained jurisdiction over Trump’s impeachment because disqualification was a potential sanction.³⁰ They argued that disqualification could be imposed at any time against any impeachable officer, including a President, regardless of whether they were still in office. Trump and other scholars contended that the Senate could not hold an impeachment trial of a former official.³¹ Nonetheless, the Senate voted 56 to 44 that it had jurisdiction over Trump’s second trial even though he had left office before it had begun. The vote was consistent with the Constitution’s directive for the Senate “to try all impeachments,” which could be read as legitimizing a trial for an official who left office after being impeached.³²

Open Question

• A disqualified person cannot hold “any Office of honor, Trust or Profit under the United States.” Does this category include all elected positions? Professors Akhil Reed Amar and Vikram David Amar argue that the Senate cannot disqualify a convicted official from serving in Congress.³³ Professors Seth Barrett Tillman and Josh Blackman contend that the Senate can disqualify a convicted official from holding some future appointed position but not from holding an elected position like the presidency or a seat in Congress.³⁴ Within our constitutional framework, who has the authority to resolve these different constitutional constructions, and how should they do so?

1. 603 U.S. 593, 633 (2024). ↩︎
2. Mass. Const. of 1780, ch. I, § II, art. VIII; N.H. Const. of 1784, art 39. ↩︎
3. 2 Farrand’s 187. ↩︎
4. Id. at 438. ↩︎
5. Id. at 576. ↩︎
6. Whether a Former President May Be Indicted and Tried for the Same Offenses for Which He Was Impeached by the House and Acquitted by the Senate, 24 Op. O.L.C. 110, 122 (2000), https://perma.cc/CG28-8QPY. Mary C. Lawton, Acting Ass’t Att’y Gen., Off. of Legal Counsel, Presidential or Legislative Pardon of the President, Mem. Op. for the Deputy Att’y Gen. (Aug. 5, 1974). ↩︎
7. 2 Farrand’s 500. ↩︎
8. Elizabeth B. Bazan, Cong. Rsrch. Serv., 96-186, Impeachment: An Overview of Constitutional Provisions, Procedure, and Practice 10 (2010), https://perma.cc/6CLD-AS39. ↩︎
9. Michael J. Gerhardt, Federal Impeachment Process: A Constitutional and Historical Analysis 189 (2000); 3 Hinds’ Precedents § 2341. ↩︎
10. Josh Blackman & Seth Barrett Tillman, New Evidence and Arguments About the Scope of the Impeachment Disqualification Clause: A Response to the House of Representatives’ Managers’ Trial Memorandum, Volokh Conspiracy (Feb. 7, 2021), https://perma.cc/G45B-DM2A. ↩︎
11. Akhil Reed Amar, America’s Constitution: A Biography 567 n.52 (2005). ↩︎
12. 3 Hinds’ Precedents § 2397. ↩︎
13. Michael J. Gerhardt, Impeachment: What Everyone Needs to Know 111 (2018). ↩︎
14. Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part V: The Electoral Incompatibility, Impeachment Disqualification, Foreign Emoluments, and Incompatibility Clauses, 64 S. Tex. L. Rev. 237, 269 (2023). ↩︎
15. Art. II, § 2, cl. 1. ↩︎
16. Brief of Petitioner President Donald J. Trump, Donald J. Trump v. United States, No. 23-939 (Mar. 19, 2024), at 17, https://perma.cc/324R-P75M. ↩︎
17. Id. at 17–18. ↩︎
18. 603 U.S. at 633 (emphasis in original) ↩︎
19. Id. at 642. ↩︎
20. Jane A. Hudiburg & Christopher M. Davis, Cong. Rsrch. Serv., R45087, Resolutions to Censure the President: Procedure and History 4–5, 14 (2021), https://perma.cc/Q5R7-T9XS. ↩︎
21. Id. at 5, 14. ↩︎
22. Id. at 9, 14. ↩︎
23. Neil A. Lewis, Censure of Clinton May Be Unconstitutional, Scholars Warn, N.Y. Times (Nov. 2, 1998), https://perma.cc/B6J6-FP94. ↩︎
24. Art. I, § 9. ↩︎
25. Hudiburg & Davis, supra at 17 n.58. ↩︎
26. Brian C. Kalt, The Constitutional Case for the Impeachability of Former Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment, 6 Tex. Rev. Law & Pol. 13 (2001). ↩︎
27. Jeremy Herb et al., House Impeaches Trump for “Incitement of Insurrection,” CNN (Jan. 13, 2021), https://perma.cc/RKA9-TDGF. ↩︎
28. Jeremy Herb & Manu Raju, House Delivers Impeachment Article to Senate, Triggering only 4th Impeachment Trial of a President in US History, CNN (Jan. 25, 2021), https://perma.cc/RS2R-HCLM. ↩︎
29. Adam Liptak, A Law Professor’s Provocative Argument: Trump Has Not Yet Been Impeached, N.Y. Times (Dec. 20, 2019), https://perma.cc/8W7D-7V8J. ↩︎
30. Brian Kalt, Trump Claims My Research Supports His Case Against Impeachment, Slate (Feb. 9, 2021), https://perma.cc/9MJN-TZYC. ↩︎
31. J. Michael Luttig, Once Trump Leaves Office, the Senate Can’t Hold an Impeachment Trial, Wash. Post (Jan. 12, 2021), https://perma.cc/F8XR-4ZEN. ↩︎
32. Michael C. McConnell, Impeachment and Trial After Officials Leave Office, 87 Mo. L. Rev. 793 (2022). ↩︎
33. Akhil Reed Amar & Vikram David Amar, Is the Presidential Succession Law Constitutional?, 48 Stan. L. Rev. 113, 115 n.14 (1995). ↩︎
34. Tillman & Blackman, supra at 264. ↩︎