House Impeachment Clause

The House of Representatives . . . shall have the sole Power of Impeachment.

—Michael J. Gerhardt

Introduction

Article I, Section 2, Clause 5 vests the House of Representatives with the “sole Power of Impeachment,” and Article I, Section 3, Clause 6 vests the Senate with the “sole Power to try all Impeachments” (See Essay No. 20). This two-stage process was common in both England and the colonies before the drafting of the Constitution: the lower chamber of the legislature had the authority to impeach or charge someone with impeachable misconduct and the upper chamber was empowered to try impeachments. The division of impeachment authority between the House and the Senate was one of the most important safeguards the Framers established against its abuse. Of the twenty-two federal officers (primarily corrupt federal judges) impeached by the House, only eight have been convicted and removed from office by the Senate.

History Before 1787

In 1376, the British Parliament invented impeachment as a means to guard against monarchical tyranny and remove ministers who implemented the King’s most dangerous tyrannical orders or policies. In practice, Parliament’s lower chamber, the House of Commons, had the authority to initiate impeachments of government officials and other individuals for various offenses against the State. The House of Lords, the upper chamber, had the power to try these cases. Until the formation of formal cabinets in the nineteenth century, impeachment was the only means for removing malicious or corrupt ministers. Edmund Burke described the impeachment power as “the great guardian of the purity of the Constitution.”¹ But, in England, where everyone but the King was subject to impeachment, impeachment also became a means by which Parliament sought to punish political opponents.² Parliament asserted the authority to charge private citizens with any kind of misconduct and impose any sanction if they were found guilty in the House of Lords.

Before 1776, the American colonies experimented with impeachment for criminal offenses and increasingly deviated from the early English practice. According to historians Peter Hoffer and N.E.H. Hull, “[b]etween 1776 and 1787, state politicians drafted and tested various provisions for impeachment.”³ The state constitutions uniformly rejected the worst features of the English impeachment practice. States with bicameral legislatures tended to follow the same two-step process for impeachment that was used in England, but only public officials were subject to impeachment, and the scope of impeachable offenses was narrowed. For example, the Virginia constitution (1776) and the Massachusetts constitution (1780) defined impeachable offenses as “misconduct and maladministration.”⁴

The Constitutional Convention

The delegates to the Constitutional Convention did not agree immediately on which authorities should wield the powers to impeach and to try impeachments. On June 2, 1787, John Dickinson of Delaware tried to break an impasse. He proposed “that the Executive be made removable by the National Legislature on the request of a majority of the Legislatures of individual States.”⁵ James Madison of Virginia initially opposed the idea because he thought this approach would subject the executive to the “intrigues” of the states.⁶ A draft of the Committee on Detail, however, placed the power of impeachment in the national legislature: The House of Representatives would have “the sole Power of Impeachment.”⁷

On September 4, the Convention approved a text specifying that the President “shall be removed from his office on impeachment by the House of representatives, and conviction by the Senate, for treason or bribery.”⁸ The two-stage process on which the delegates settled was familiar to them because it mirrored the practices in England and the colonies. The Committee of Style would divide the powers for the House and Senate into different sections. The first step in the process now provided that “[t]he House of Representatives shall have the sole power of impeachment.”⁹

The Ratification Debates

During the ratification process, there were extensive debates about the vesting of impeachment authority in the Senate, but the House Impeachment Clause drew far less attention. For example, Alexander Hamilton argued in Federalist No. 77 that the nation would find “republican” safety from a presidential abuse of power in the mode of his election and his “being at all times liable to impeachment.” In Federalist No. 65, Hamilton further elaborated on why the delegates chose the Senate as the venue for impeachment trials. Hamilton noted that it made no sense to entrust the House with both the power of impeachment and the power to try impeachments.

Cincinnatus, an Anti-Federalist, observed that the House has “power to controul the representative in this high democratic right; to screen from punishment, or rather from conviction, all high offenders, being their creatures, and to keep in awe all opponents to their power in high office.”¹⁰

How the House Exercises the Impeachment Power

The Constitution does not specify how impeachment proceedings are to be initiated. Instead, according to Article I, Section 5, “each House” of Congress has the power to “determine the Rules of its proceedings.” (See Essay No. 26.) One such proceeding is impeachment. During the early Republic, the House would craft rules or procedures for each impeachment proceeding it conducted. Usually, a Member would propose an impeachment, which would then be assigned to a committee. This process was followed with two early impeachments.

In the first impeachment, the Jefferson Administration and its partisan allies in Congress seriously explored using impeachment to retaliate against Federalist judges. These Adams Administration appointees had used the Sedition Act to punish their Republican critics. President Jefferson asked Treasury Secretary Albert Gallatin to collect evidence that John Pickering, a Federalist judge, had been acting erratically and issuing dubious rulings. On February 3, 1803, Jefferson sent Congress a special message that included a “letter and affidavits exhibiting matter of complaint” against Pickering. In response, the House formed a committee to explore possible charges against Pickering. The committee made its recommendation to the full House, which impeached Pickering on March 2, 1803.¹¹ The Senate trial started the next day, and Pickering was convicted on March 12. The Senate made Pickering the first federal officer in United States history to be removed from office.

The Pickering impeachment helped set the stage for the next serious deployment of the House’s “sole power of impeachment.” Jefferson urged his allies in the House to target Justice Samuel Chase, a Washington appointee to the Supreme Court.¹² The ardent Federalist judge was targeted based on his harsh rulings and statements while overseeing trials of Republicans for violating the Sedition Act. Representative John Randolph of Virginia asked the House to initiate an impeachment inquiry into Chase’s alleged abuse of his judicial authority. The House authorized the inquiry and then formed a committee to study possible charges against Chase. The committee recommended that the House impeach Chase.

Randolph presented to the full House articles of impeachment against Chase, which the House approved. The House appointed several representatives as managers who would be responsible for prosecuting the articles in the Senate. The managers delivered the articles to the Senate on December 7, 1804, and the trial began. On March 1, 1805, at least six Jeffersonian Republicans voted with the Senate’s nine Federalists to acquit Chase on each of the eight articles of impeachment.

Over time, the House developed a more formal procedure. In 1813, it established a standing Committee on the Judiciary.¹³ This committee would initiate impeachment proceedings and then make recommendations for consideration by the whole House. For example, impeachment hearings were held by the House Judiciary Committee for the impeachments of Presidents Andrew Johnson (1868); William Jefferson Clinton (1998–99); and Donald Trump (2019–20 and again in 2021). In 1974, the committee approved three impeachment articles against Richard Nixon, who resigned shortly thereafter.

Under the modern practice, if a majority of the House votes in favor of an impeachment resolution, the Chairman of the House Judiciary Committee recommends a slate of “managers” to serve as prosecutors in the Senate trial. The House subsequently approves these managers by resolution.

The Role (or Non-Role) of the Federal Judiciary

The Constitution uses the word “sole” only twice, both times with respect to impeachment. As a textual matter, the fact that the House has the “sole power” over impeachment suggests that the federal courts cannot review impeachment proceedings.

Walter Nixon v. United States (1993) held that the Senate’s “sole power” to try impeachments is not subject to review by the courts.¹⁴ Chief Justice William Rehnquist explained for a unanimous Court that the word “sole” obviously indicated that no other authority, including the courts, had any role in second-guessing or reviewing House or Senate impeachment-related decisions. Judicial review of congressional impeachment procedures would undermine the finality of those proceedings. Supreme Court justices and other federal judges would also have the opportunity to review impeachment—the primary mechanism used to discipline judges. Rehnquist stressed that other safeguards were available to check the abuse of the impeachment power. Primarily, the Constitution divides the impeachment authority between the House and the Senate; thus, the final decision-making is in the hands of politically accountable members of Congress.

Open Questions

• Does the House Impeachment Clause impose an affirmative duty on the House to monitor the conduct of those who are subject to impeachment and, when evidence of impeachable offenses is manifest, to initiate proceedings? In the criminal law context, prosecutors have considerable discretion in determining whether to indict a defendant. By analogy, does the House have complete discretion in determining whether to initiate impeachment proceedings?
• In 2021, the House impeached President Trump before his constitutional term concluded. A majority of the Senate determined that the Senate still had jurisdiction over his impeachment even though he was no longer in office at the time of his Senate impeachment trial. One argument supporting the Senate’s judgment was that the Constitution empowered the Senate “to try all impeachments” and that, because Trump had been impeached while he was still president, his impeachment properly fell within the jurisdiction of the Senate. Are there good counter-arguments against this reading of the Constitution?
• Can a former official who is out of office be impeached for conduct that occurred while he was in office?
• As a general matter, the House has oversight power to investigate the executive and judicial branches as well as, under the right circumstances, private citizens in connection with a legislative purpose.¹⁵ However, this investigatory power is enhanced when connected to an impeachment proceeding. Does the House have to authorize an impeachment investigation formally by a majority vote to trigger this broader power? In 2019 and 2020, the Trump Administration’s Justice Department argued that it would respond to investigative information requests only after such a vote.¹⁶
• If impeachment is unavailable as a sanction for the misconduct of an officer after he has left office, what, if any, are the constitutional options for holding such an official accountable for his conduct?

1. Edmund Burke, The Works of Edmund Burke 397 (1839). ↩︎
2. House of Commons Library, Impeachment, Briefing Paper No. CBP7612 (June 6, 2016), https://perma.cc/W9JE-66XX. ↩︎
3. Peter Charles Hoffer & N.E.H. Hull, Impeachment in America: 1635–1805, at 68 (1984). ↩︎
4. Id. at 76; Mass. Const. of 1780, ch. I,§ II, art. VIII; Va. Const. of 1776. ↩︎
5. 1 Farrand’s 85. ↩︎
6. Id. at 86. ↩︎
7. 2 Farrand’s 164. ↩︎
8. Id. at 495. ↩︎
9. Id. at 566. ↩︎
10. Storing 6.1.27. ↩︎
11. 3 Hinds’ Precedents §§ 2319–41. ↩︎
12. Id. at §§ 2342–63. ↩︎
13. House Judiciary Committee, About the Committee: Committee History, https://perma.cc/9SPJ-FAZA. ↩︎
14. Nixon v. United States, 506 U.S. 224 (1993). ↩︎
15. Trump v. Mazars USA LLP, 591 U.S. 848 (2020). ↩︎
16. Steven A. Engel, Ass’t Att’y Gen., Off. of Legal Counsel, U.S. Dep’t of Justice, House Committees’ Authority to Investigate for Impeachment, Memorandum Opinion for the Counsel to the President (Jan. 19, 2020), https://perma.cc/4GQ4-HTY2. ↩︎