The Impeachment Clause

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.

—Michael J. Gerhardt

Introduction

In American constitutional law, impeachment can refer to (1) bringing charges against certain officials for misconduct and (2) the entire process set forth in the Constitution. The Impeachment Clause itself answers two primary questions: Who can be impeached, and what are the offenses for which a covered official may be impeached and removed from office? The clause specifies that the “President, Vice President and all civil Officers of the United States” may be impeached. The conventional understanding is that this provision does not apply to members of Congress, members of the military, or appointed positions that are not “Officers of the United States.” The clause also specifies three specific types of conduct that can lead to impeachment and removal from office: “Treason, Bribery, or other high Crimes and Misdemeanors.” Treason and bribery are relatively straightforward in terms of their meaning. The third category, however, has proven to be the hardest to define. Nonetheless, virtually all scholars agree that the impeachment process was designed primarily as a last resort to address misconduct that is not redressable through ordinary legal proceedings, such as civil and criminal trials.

History Before 1787

In England, any person, whether a governmental official or private citizen, could have been impeached by Parliament for any reason. The House of Commons had the authority by majority vote to charge anyone other than the king with misconduct, and the House of Lords had the power to hold trials and impose sanctions for that misconduct. There was no limit to the punishments that could be imposed, including death.

Generally, people could be impeached for “high crimes and misdemeanors.” Sir William Blackstone traced the understanding of the terms “high crimes and misdemeanors” to the ancient or classical concept of treason, which distinguished “high” treason (disloyalty to a superior authority such as the state) from “petit” treason (disloyalty to an inferior).¹ Blackstone further defined “high crimes” as offenses such as “treason, murder, and bribery” that “strike at the very being of society” and the rule of law.² Blackstone explained that the “first and principal” “high misdemeanor” is “the mal-administration of such high officers, as are in public trust and employment.”³ He explained further that such “misprision”⁴ was “usually punished by the method of parliamentary impeachment.”⁵ The punishments, though “short of death,” were “inflicted, as . . . the house of peers shall seem proper” and usually consisted of “banishment, imprisonment, fines, or perpetual disability.”⁶ Professor Raoul Berger has suggested that the English practice treated “high crimes and misdemeanors” as a “category of political crimes against the state.”⁷

The American colonies, not having laws expressly vesting them with the power of impeachment, adapted the English procedures and precedents to their particular circumstances. The power to hold officials accountable for their misconduct was generally manifested in the form of an indictment by the lower house for misconduct. This power was also exercised as an address, which was an appeal to the governor to initiate some action to redress the alleged wrongdoing.

After independence, state constitutions included mechanisms for impeaching certain kinds of misconduct. These processes generally limited impeachment to officeholders for particular official acts. Offenses were not limited to crimes or felonies but instead included abuses of power and breaches or dereliction of duty. In England, as noted, anyone other than the king could be impeached for any reason. In contrast, the states created a uniquely American system of impeachment.⁸

One such impeachment occurred in North Carolina. In 1785, some legislators initiated impeachment proceedings against the Superior Court justices, including Chief Justice Samuel Ashe.⁹ The articles charged various misconduct, including partisan rulings against Loyalist interests, misappropriating funds, and abusing judicial power. After a brief investigation, the Committee of the Whole found insufficient evidence to proceed with the impeachments. In retrospect, the failed proceedings reaffirmed judicial independence from political reprisals.

The Articles of Confederation had no mechanism of impeachment. This omission was not surprising, because the Articles had not provided for a chief executive or Supreme Court. However, delegates to the national legislature could be recalled by their states.

The Constitutional Convention

The federal impeachment process in the Constitution derives from two sources, both of which were familiar to the constitutional and ratification convention delegates: experience in England, where Parliament had wielded the impeachment authority for centuries, and the federal impeachment process in the colonies and then the states.

Shortly after the Convention opened, the delegates agreed that the chief executive would be subject to impeachment. The debate would turn on who would wield the power of impeachment and on what grounds the executive could be impeached. On June 2, 1787, John Dickinson of Delaware proposed “that the Executive be made removeable by the National Legislature on the request of a majority of the Legislatures of individual States.”¹⁰ This proposal did not include any standards or grounds that would justify the Executive’s removal. George Mason of Virginia warned that “making the Executive the mere creature of the Legislature” would violate “the fundamental principle of good Government.”¹¹ Dickinson’s proposal was rejected with only Delaware voting in favor of its adoption.¹² On June 18, the Committee of the Whole House proposed a different standard: “The Governour[,] Senators and all officers of the United States to be liable to impeachment for mal [sic] — and corrupt conduct.”¹³ (“Governour” would eventually become “President.”)

On July 19, Gouverneur Morris of Pennsylvania declared that vesting the national legislature with impeachment authority was “dangerous” because “[i]t will hold him in such dependence that he will be no check on the Legislature, will not be a firm guardian of the people and of the public interest.”¹⁴ Instead, “[h]e will be the tool of a faction, of some leading demagogue in the Legislature.” The next day, the Convention considered the draft from the Committee of the Whole House with some variations: The Executive would be “removeable on impeachment and conviction for malpractice or neglect of duty.”¹⁵

A lengthy debate ensued. Morris again expressed skepticism with respect to allowing the national legislature to remove the Executive. He argued that the Executive “can do no criminal act without Coadjutors who may be punished.”¹⁶ James Madison of Virginia thought “it indispensable that some provision should be made for defending the Community [against] the incapacity, negligence or perfidy of the chief Magistrate.”¹⁷ Mason conceded “impeachment” was essential and asked, “Shall any man be above Justice?” He then answered his own question, “Shall the man who has practised corruption & and by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?”¹⁸ By the end of the debate, Morris admitted that his “opinion had been changed” and he was “now sensible of the necessity of impeachments.”¹⁹ The Convention adopted the Committee’s proposal by a vote of 8 to 2.²⁰

The delegates also discussed the appropriate grounds for impeaching and removing the Executive. William Davie of North Carolina cautioned his fellow delegates that if the President “be not impeachable whilst in office, he will spare no effort or means whatever to get himself re-elected.”²¹ Mason stressed the need to make the Executive impeachable because he was the man “who can commit the most extensive injustice.”²² Madison agreed that a “president might pervert his administration into a scheme of peculation [stealing public funds] or oppression” or that he might “betray his trust to foreign powers.”²³ Edmund Randolph of Virginia added that a President “will have great opportunitys of abusing his power; particularly in time of war when the military force, and in some respects the public money will be in his hands.”²⁴ Morris observed that the President “may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay.”²⁵ Elbridge Gerry of Massachusetts speculated that a good president “will not fear” impeachments, but “a bad one ought to be kept in fear of them.”²⁶

“Malpractice or neglect of duty” remained the favored constitutional standard for impeachment until September. On September 4, the Committee of Eleven proposed new language: the Executive “shall be removed from his office on impeachment by the House of Representatives, and conviction by the Senate, for Treason, or bribery . . . .”²⁷ This clause would be debated four days later. Mason asked why the text was limited to “treason and bribery only.” He thought that treason would “not reach many great and dangerous offences” and moved to add “maladministration” after “bribery.”²⁸ Gerry seconded Mason’s motion,²⁹ but Madison objected that “[s]o vague a term” as “maladministration” “will be equivalent to a tenure during pleasure of the Senate.”³⁰ Mason agreed to withdraw the term “maladministration” and substituted (with Madison’s approval) “other high crimes & misdemeanors,”³¹ which Mason and other delegates recognized as borrowed from the English standard. The Convention approved the new language by a vote of 8 to 3.³²

Four days later, on September 8, the Convention expanded the class of officials who would be subject to impeachment. Under the British system, virtually any citizens were impeachable, whether they held public offices or not. Instead, the Framers limited impeachment to a select number of government officials. Before September 8, the Impeachment Clause applied only to the President; on that day, however, a motion was made to add “[t]he vice-President and other Civil officers of the U. S.” to the scope of the clause.³³ The motion was adopted unanimously.³⁴

Ultimately, the delegates agreed on a multi-step process. First, the Constitution requires a majority vote of the House of Representatives to bring impeachment charges.³⁵ This feature tracked both the Parliamentary and many state legislative schemes that placed the authority, by majority vote, in the lower house to wield the power of impeachment. (See Essay No. 14.) Second, impeachment charges, or articles, are then tried before the Senate, and a two-thirds vote is required to convict.³⁶ (See Essay No. 20.) Third, the Constitution expressly bars the President’s pardon power from being used “in cases of impeachment.”³⁷ (See Essay No. 105.) Fourth, if an official is impeached by the House and convicted by the requisite vote in the Senate, then the Senate may take another vote to disqualify him from holding any future “Office of honor, Trust, or Profit under the United States.”³⁸ (See Essay No. 118.)

The Ratification Debates

In Federalist No. 64, John Jay argued that the threat of impeachment would encourage executive officers to perform their duties with honor. Impeachment, he explained, would be used as a last resort to remove those who betray the interests of their country. The Framers specified particular grounds for impeachment in the Constitution because they wished to prevent impeachment from becoming a politicized offense. In England, the impeachment power had been used to sanction political disagreement as treason. Nonetheless, in Federalist No. 65, Alexander Hamilton warned that during impeachment proceedings, it would be difficult for Congress to act solely in the interests of the nation and resist political pressure to remove a popular official. The expectation was that the Senate, elected by the state legislatures, would have the requisite independence from popular majorities to try impeachments, and the super-majority vote would militate against purely partisan House impeachments supported only by a factional majority.

There was some debate about the meaning of “high crimes and misdemeanors.” In Federalist No. 65, Hamilton explained that impeachable conduct involves offenses that “proceed[] from the misconduct of public men, or in other words from the abuse or violation of some public trust.” Such offenses are political because “they relate chiefly to injuries done immediately to the society itself.” Hamilton’s phrasing was reminiscent of Blackstone’s explanation of “high” as referencing injuries to the state. Brutus, a prominent Anti-Federalist, wrote that the phrase has a limited definition: “Civil officers, in which the judges are included, are removable only for crimes” and added that “[e]rrors in judgement, or want of capacity to discharge the duties of the office, can never be supposed to be included in these words, high crimes and misdemeanors.”³⁹

In sharp contrast, the examples of impeachable misconduct given by the constitutional and ratification convention delegates were not limited to indictable crimes. Many if not most abuses of power, such as lying to the Senate to secure ratification of a treaty, are not crimes. For example, at the North Carolina ratification convention, James Iredell observed that high crimes and misdemeanors involved misconduct “arising from acts of great injury to the community.”⁴⁰ The future Supreme Court justice declared that the “President is of a very different nature from a monarch. He is to be . . . personally responsible for any abuse of the great trust reposed in him.”⁴¹

In the South Carolina ratification convention, Charles Cotesworth Pinckney contended that impeachment would be available for federal officers who “behave amiss, or betray their public trust.”⁴² Also in South Carolina, Edward Rutledge stated that “[i]f the President or the senators abused their trust, they were liable to impeachment and punishment.”⁴³

During the Virginia ratification convention, George Mason and Edmund Randolph argued that Senators could be impeached.⁴⁴ However, James Monroe observed “that the Senators are not impeachable, and therefore Governor Randolph’s objection falls to the ground. I am surprised that a man of that gentleman’s abilities should have fallen into this mistake.”⁴⁵ This issue would be tested again within a decade of ratification.

Who May and May Not Be Impeached

The President and the Vice President are indisputably impeachable officials because the Constitution expressly makes them so. Similarly, “civil Officers of the United States” who are appointed pursuant to the Appointments Clause can be impeached. However, military officers, who also are appointed pursuant to the Appointments Clause, cannot be impeached. Justice Joseph Story observed that the phrase “civil Officers” in the Constitution “seems to be in contradistinction to military.”⁴⁶ Military officers are subject to court martial. Since the beginning of the Republic, there have been debates about whether members of Congress could be impeached.

This issue arose in the first impeachment proceeding. On July 7, 1797, the House of Representatives initiated an impeachment inquiry against Senator William Blount of Tennessee, who was alleged to have conspired with the British to take control of southwest territory owned by Spain. This conspiracy would have violated both America’s policy of neutrality in British–Spanish relations and the Neutrality Act.⁴⁷ The next day, the Senate expelled Blount by a vote of 25 to 1.⁴⁸ Nonetheless, the House proceeded to impeach Blount, marking the first time that the House of Representatives had formally impeached a federal official.

When the matter moved to the Senate, Blount’s defense counsel argued that the Senate lacked jurisdiction over Blount’s impeachment because he was no longer in office and because members of Congress, being elected officials rather than officials who had been appointed pursuant to the Appointments Clause, were not “civil Officers of the United States.”⁴⁹ The debate focused largely on the question of whether Senators were impeachable officials. Ultimately, the Senate voted 14 to 11 to reject a resolution stating that “Blount was a civil officer of the United States within the meaning of the Constitution of the United States, and, therefore, liable to be impeached by the House of Representatives[.]”⁵⁰ The standard view of the Blount impeachment and trial proceedings is that the case was dismissed because Senators are not “officers of the United States.” Since the Blount proceedings, no member of Congress has been impeached.

Categories of Impeachable Offenses

The Constitution lists three categories of impeachable offenses: “Treason, Bribery, or other high Crimes and Misdemeanors.” It defines the crime of treason as “levying War against” the United States “or in adhering to their Enemies, giving them Aid and Comfort.” (See Essay No. 137.) Blackstone defined treason as “betraying, treachery, or breach of faith.”⁵¹ He explained that treason against the king was the “highest civil crime,” which was regarded as “high treason.”⁵² Petty treason entailed subordinates’ betrayals of the trust placed in them. Before ratification of the Constitution, the American common law in the states adopted a similar understanding of bribery. The first federal bribery statute was passed as part of the Crimes Act of 1790.⁵³

The Constitution then lists a category apart from treason and bribery: “other high Crimes and Misdemeanors.” This category has proved to be the most difficult to define. The historical record of impeachment in England, which furnished the term “high crimes and misdemeanors,” does not support a limited interpretation. Rather, during the eighteenth century, “misdemeanor” meant “misdeeds” or violation of a public law rather than petty crimes as it now does.⁵⁴ The Constitution’s text refers to “crimes” and “misdemeanors,” but these terms, in context, are preceded by the term “high.” Thus, “other high crimes and misdemeanors” must be on the same level of seriousness and magnitude as “treason” and “bribery,” which are listed immediately before them.

Story acknowledged that impeachable offenses are “of a political nature.” He explained that “it is impossible to fix any exact grade, or measure, either in the offences, or the punishments.” Rather, “a very large discretion must unavoidably be vested in the court of impeachments.” Story added that “[a]ny attempt to define the offences . . . would probably tend to more injustice and inconvenience, than it would correct; and perhaps would render the power at once inefficient and unwieldy.”⁵⁵ Nonetheless, Story asserted that impeachable offenses were likely “[s]uch kind of misdeeds . . . as peculiarly injure the commonwealth by the abuse of high offices of trust” and suggested that such offenses “were the most usual grounds for this kind of prosecution in parliament.”⁵⁶

There may also be a pragmatic standard for an impeachable offense. In 1970, then-Representative Gerald Ford of Michigan initiated an ultimately unsuccessful attempt to impeach Supreme Court Justice William O. Douglas. Ford contended that “high crimes and misdemeanors” were “whatever a majority of the House of Representatives considers them to be at a given moment in history.” Thus, the House has the “sole” responsibility to define “other high crimes and misdemeanors.”⁵⁷ The federal courts have treated appeals from impeachment convictions as not subject to judicial review,⁵⁸ but even if the courts cannot resolve these matters, there still may be appropriate standards for Congress to follow.

There have been twenty-two impeachments in the House and eight convictions in the Senate.⁵⁹ The most prominent impeachment trials were against Supreme Court Justice Samuel Chase and Presidents Andrew Johnson, Bill Clinton, and Donald Trump (twice). In each of these trials, Congress grappled with defining the grounds for impeachment, but none of them resulted in removals from office.

Perhaps not surprisingly, Presidents facing serious threat of impeachment in the House have interpreted the scope of impeachable offenses narrowly, thus making it harder for them to be impeached. By contrast, the House has pushed for broader constructions of the permissible range. In all cases, impeachment proceedings have turned on the gravity of the offense, its context, and the political composition of Congress. However, because neither the House nor the Senate is bound by either chamber’s prior judgments in impeachment proceedings, the past is at most a guide, not a prediction or rule, for the future of impeachment in the United States.

The Impeachment of Samuel Chase

One of the most serious impeachment proceedings after Blount’s acquittal involved Samuel Chase. President George Washington had been warned about Chase’s mercurial behavior before appointing him to the U.S. Supreme Court in 1796, and Chase had written the President that, if appointed, he would do nothing to embarrass the Administration.⁶⁰ In his early years on the Court, Chase kept his pledge and rendered several decisions clarifying the powers of the national government.⁶¹

When President John Adams sought reelection in 1800, his leading opponent was Vice President Thomas Jefferson. Chase took the unprecedented step of openly campaigning for Adams—a rare move for sitting judges even then—and soon earned the ire of Jefferson’s emerging Republican Party.

In 1803, Chase continued his brazen conduct. In Baltimore federal court, while sitting as a circuit justice, Chase lamented the Jeffersonian restructuring of the federal judiciary. He also criticized the Jeffersonians in Maryland who abolished a state court and established universal male suffrage. Jefferson and his associates believed that to have a federal judge publicly articulating such views was harmful to the government. The Republicans decided to initiate impeachment proceedings against Chase.

The attempt to impeach Chase was part of a broader Jeffersonian assault on the judiciary. None of the eight impeachment articles approved in the House charged Chase with any criminal conduct.⁶² Rather, they charged that Chase’s legal rulings were simply not in accordance with the Jeffersonian theory of how trials should be conducted or how juries should function. However, there was substantial legal precedent behind each of Chase’s rulings. He may have been guilty of having a hair-trigger temper, but it was clear that removing him would seriously—perhaps permanently—compromise the independence of the federal judiciary. The requisite two-thirds of the Senate could not be cobbled together to remove Chase. In fact, members of Jefferson’s own party voted for acquittal, which came to be understood as a bar to removing a Supreme Court justice because of his political views.

There have been several subsequent attempts to bring impeachment proceedings against several Justices, but the House has impeached none. However, as discussed below, eight lower-court federal judges have been impeached, convicted, and removed, most of whom committed traditional crimes such as bribery.

The Impeachment of Andrew Johnson

In 1865, Andrew Johnson succeeded to the presidency following Abraham Lincoln’s assassination and became immensely unpopular. The radical Republicans recoiled at Johnson’s hostility to their plans to protect the newly freed slaves. Congress enacted the Tenure of Office Act, which prohibited the firing of Cabinet officials without the Senate’s consent. Despite this law, Johnson unilaterally fired Secretary of War Edwin Stanton.

On February 24, 1868, the House of Representatives impeached Johnson, making him the first President to be impeached.⁶³ In early March, the House approved eleven articles of impeachment against Johnson including one that charged him with violating the Tenure of Office Act. Johnson claimed the law was unconstitutional because it undermined the independence of the executive. Johnson contended that Article II of the Constitution granted him the power to control his subordinates to ensure that the Administration implemented his priorities. The Senate fell one vote short of convicting Johnson.

Myers v. United States (1926) declared unconstitutional a law similar to the Tenure of Office Act.⁶⁴ This decision provided at least some vindication for Johnson’s defense. Johnson’s acquittal, combined with Myers, has come to be widely understood as upholding the proposition that the impeachment power may not be used to sanction Presidents for having policy differences with Congress.

The Impeachment of William Jefferson Clinton

In 1994, Kenneth Starr was appointed as Independent Counsel to investigate possible criminal activity on the part of then-Governor Clinton in a failed land scheme.⁶⁵ Starr uncovered evidence that Clinton had lied during a deposition in a civil case. Starr questioned Clinton about the same matter before a grand jury, making Clinton the first President to testify as the subject before a grand jury. Starr issued a lengthy referral to Congress detailing what he contended were several impeachable offenses committed by Clinton.

Based on the referral, the House of Representatives approved two articles of impeachment against Clinton in December 1998. He thus became the second American President to be impeached. One article charged Clinton with committing perjury in his testimony before the grand jury, and the other charged him with obstruction of justice based on his efforts to hide evidence pertaining to the false testimony. The vote in the House was largely along party lines. Republicans argued that perjury and obstruction of justice were serious felonies that undermined the integrity of the administration of justice. Democrats responded that Clinton’s indiscretions were not impeachable because they were minor and unrelated to the performance of his duties as President. The Senate acquitted Clinton, almost entirely by a straight party-line vote.

The Impeachments of Donald Trump

President Donald Trump faced two impeachment proceedings during his first term in office. In 2019, an impeachment inquiry began after Trump allegedly requested a “favor” from Ukraine’s President.⁶⁶ The House impeached Trump largely on a party-line vote for abuse of power and obstruction of Congress. Neither charge was a criminal offense.

During the Senate trial, there was some debate about whether “abuse of power” was “a high crime or misdemeanor” for impeachment purposes.⁶⁷ Trump’s counsel argued that only statutory offenses in the U.S. Code could count as “high crimes or misdemeanors.”⁶⁸ His lawyers argued that the codification of felonies would give the President clear notice of the misconduct for which he could be impeached and would clearly establish the grounds for impeachment, and there was no statutory offense for “abuse of power.” House Managers responded that abuse of power was the most common example of an impeachable offense cited during the Constitutional and Ratification Conventions.⁶⁹ The House prosecutors further explained that abuse of power was clearly illegal because it was a breach of, or deviation from, the Constitution’s limits on executive power. After the Senate trial, Trump was acquitted by a nearly party-line vote.

Trump’s second impeachment proceeding began during his last few days in office. On January 6, 2021, hundreds of President Trump’s supporters stormed the U.S. Capitol. One week later, on January 13, the House voted to impeach Trump for incitement of insurrection.⁷⁰ This charge did involve a criminal offense. At the time, the Senate was holding a series of pro forma sessions, and outgoing Republican Majority Leader Mitch McConnell of Kentucky said that he would not ask Senators to return without the unanimous consent of the Senate. Without such consent, the Senate was not in a position to begin the impeachment trial until January 20, the day of President Joe Biden’s inauguration. At that time, a new Democratic majority led by Senator Charles Schumer of New York took control of the Senate.

When the Senate trial began on February 9, Trump was already out of office. There was some question whether an impeachment trial could be held for a former official. Chief Justice John Roberts declined to preside over this proceeding, as did newly sworn Vice President Kamala Harris.⁷¹ The Senate voted 55 to 45 to accept jurisdiction over Trump’s second impeachment trial.

On February 13, fifty-seven Senators voted to convict Trump—ten votes short of the two-thirds required for conviction and removal.

Trump’s and Clinton’s acquittals illustrate the extreme difficulty of mustering super-majority support for conviction and removal in the Senate as long as the members of the President’s political party remain largely, if not wholly, united in opposition to the effort.

The Potential Impeachment of Richard Nixon

In 1972, President Richard M. Nixon won reelection by a landslide. However, the Democratic National Headquarters at the Watergate Hotel had been burglarized on June 17, and as evidence of Nixon’s involvement in the cover-up mounted, his presidency unraveled. Some of the evidence came from Nixon’s tape-recording system in the Oval Office.

On July 24, 1974, the Supreme Court decided United States v. Nixon.⁷² In this case, the criminal defendants had issued a subpoena to President Nixon for the tapes. The Court unanimously ordered Nixon to comply with the subpoena and turn the tapes of White House conversations over to the defendants. Nixon largely complied with the order but refused to provide four of the most incriminating tapes to the House Judiciary Committee, which was considering his impeachment.⁷³

On July 30, the House Judiciary Committee approved three articles of impeachment against Nixon.⁷⁴ The first article was for obstruction of justice by covering up the Watergate burglary. The second was for abuse of power. Nixon was alleged to have ordered the heads of various agencies to harass his political enemies. The third was for contempt of Congress. Nixon was charged with refusing to comply with four legislative subpoenas. On August 8, 1974, Nixon resigned from office before the full House had the opportunity to consider and vote on the proposed articles of impeachment. His resignation brought an end to the impeachment proceedings against him in the House.

At the time, some scholars argued that the actual commission of a crime was necessary to serve as a basis for an impeachment proceeding.⁷⁵ Others argued that it was not required. However, since Nixon resigned, these theories were never tested. Had Nixon remained in office, it is widely believed that he likely would have faced impeachment, conviction, and removal from office.

Impeachment for Criminal and Non-Criminal Offenses

It is generally accepted that not all impeachable offenses are actual crimes or felonies and not all crimes or felonies are impeachable offenses. For example, jaywalking is a crime, but it is not as seriously injurious to the Republic as treason or bribery. Conversely, ordering department heads to harass a President’s political enemies is a serious abuse of power, but it is not a criminal offense.

The Senate has convicted several judges for engaging in criminal misconduct.⁷⁶ For example, in 1986, Judge Harry Claiborne was convicted for income tax fraud; in 1988, Judge Walter Nixon was convicted for perjury before a federal grand jury; and in 1989, Judge Alcee Hastings was convicted for perjury and bribery. (The Senate did not vote to disqualify Hastings, who was later elected to the House of Representatives.) Several other officials were impeached by the House for criminal misconduct but were acquitted by the Senate. In 1876, Secretary of War William Belknap was acquitted on charges of bribery.⁷⁷ (Belknap had resigned moments before he was impeached, but the Senate voted to retain jurisdiction over his impeachment.)

The Senate has also convicted several judges for non-criminal offenses. In 1936, Judge Halsted Ritter was impeached on several grounds, including embezzlement and tax evasion,⁷⁸ but he was convicted only on one noncriminal article: engaging in misconduct that brought the “judiciary into disrepute.” Ritter later challenged his conviction in the Court of Claims, arguing that the Senate could not convict him solely for this non-criminal offense. That court found that it lacked jurisdiction to review a Senate conviction.⁷⁹ After the Civil War began, Judge West Hughes Humphreys left his federal judgeship without resigning and joined the Confederacy.⁸⁰ In 1861, he was impeached, convicted, removed, and disqualified for violating his oath of office.⁸¹

Only one official has been impeached and convicted based on misconduct before entering his office: Judge Thomas Porteous. Before joining the bench, Porteous had a “corrupt relation” with a law firm. During his background check, he failed to disclose both criminal conduct in which he had engaged before his nomination as a judge and the potential for blackmail. Porteous was impeached for making false statements to the Senate and the FBI, as well as for corrupt conduct.⁸² The false statements he made on his paperwork for his judicial appointment provided a connection between his past misconduct and his federal office. In 2010, the Senate convicted and removed Porteous. It then voted separately to disqualify Porteous from holding future federal office.⁸³

Open Questions

• How should the outcome of the Blount impeachment trial be understood? As an original matter, can a member of Congress be impeached?⁸⁴
• At what point is an official impeached? Is he impeached when the House approves articles of impeachment or when the articles of impeachment are delivered to the Senate?⁸⁵
• In December 1998, President Clinton was impeached by the lame-duck House at the end of the 105th Congress. He was tried by the Senate in the 106th Congress. At the time, it was argued that the articles of impeachment expired with the end of the 105th Congress?⁸⁶ Was this position correct?
• The second Trump impeachment followed the precedent established in the Belknap trial, but it did not clarify the answers to every conceivable instance of post-presidential impeachment.⁸⁷ Obviously, a private citizen who has never worked for the federal government can never be impeached, but can an official be convicted and disqualified (a) if the misconduct occurred while the official was in office but the official is out of office when the House approves articles of impeachment; (b) if the official is in office when the House approves articles of impeachment but leaves office before the articles are delivered to the Senate (this is similar to the Belknap trial and Trump’s second trial); (c) if the official is in office when the articles are delivered to the Senate but leaves office before the Senate trial begins; (d) if the official is in office before the Senate trial begins but leaves office before the Senate votes to convict; (e) if the official is out of office before the Senate begins its trial; or (f) if the official is in office when the Senate votes to convict but is out of office before the Senate votes to disqualify?
• To what extent, if any, may someone be impeached for misconduct that was not known when he or she was appointed or elected to an office covered by the Impeachment Clause?
• To what extent, if any, may someone be impeached for misconduct that was known when he or she was elected or appointed to an office covered by the Impeachment Clause?

1. 4 Blackstone 75. ↩︎
2. 4 Blackstone 5. ↩︎
3. 4 Blackstone 121. ↩︎
4. Id. ↩︎
5. Id. ↩︎
6. Id. ↩︎
7. Raoul Berger, Impeachment: The Constitutional Problems 64 (1974). ↩︎
8. Peter Charles Hoffer & N.E.H. Hull, Impeachment in America, 1635–1805, at 96–106 (1984). ↩︎
9. Id. at 89–90. ↩︎
10. 1 Farrand’s 85. ↩︎
11. Id. at 86. ↩︎
12. Id. at 87. ↩︎
13. Id. at 292. ↩︎
14. 2 Farrand’s 53. ↩︎
15. Id. at 61. ↩︎
16. Id. at 64. ↩︎
17. Id. at 65. ↩︎
18. Id. ↩︎
19. Id. at 68. ↩︎
20. Id. at 69. ↩︎
21. Id. at 64. ↩︎
22. Id. at 65. ↩︎
23. Id. at 65–66. ↩︎
24. Id. at 67. ↩︎
25. Id. at 68. ↩︎
26. Id. at 66. ↩︎
27. Id. at 499. ↩︎
28. Id. at 550. ↩︎
29. Id. ↩︎
30. Id. ↩︎
31. Id. ↩︎
32. Id. ↩︎
33. Id. at 552. ↩︎
34. Id. ↩︎
35. Art. I, § 2, cl. 5. ↩︎
36. Art. I, § 3, cl. 6. ↩︎
37. Art. I, § 2, cl. 1. ↩︎
38. Art. I, § 3, cl. 7. ↩︎
39. Storing 2.9.192. ↩︎
40. 4 Elliot’s 113. ↩︎
41. Id. at 74. ↩︎
42. Id. at 281. ↩︎
43. Id. at 276. ↩︎
44. 3 Elliot’s 202, 402, 484, 486. ↩︎
45. James Monroe writing as A Native of Virgina, Observations on the Proposed Plan of Federal Government 17 (1788), https://perma.cc/76RP-AGND. ↩︎
46. 2 Story’s Commentaries § 789. ↩︎
47. 7 Annals of Cong. 459–62 (1797); Buckner F. Melton, Jr., The First Impeachment: The Constitution’s Framers and the Case of Senator William Blount, app. 3 (1999). ↩︎
48. 7 Annals of Cong. 43–44 (1797). ↩︎
49. Proceedings on the Impeachment of William Blount, A Senator of the United States from the State of Tennessee, for High Crimes and Misdemeanors 70 (Philadelphia, Joseph Gales 1799). ↩︎
50. 8 Annals of Cong. 2318 (1799). ↩︎
51. 4 Blackstone 75. ↩︎
52. 4 Blackstone 76. ↩︎
53. Crimes Act of 1790, ch. 9, 1 Stat. 112. ↩︎
54. 4 Blackstone 5. ↩︎
55. 2 Story’s Commentaries § 783. ↩︎
56. Id. at § 788. ↩︎
57. News release, Off. of Rep. Gerald R. Ford, Remarks by Rep. Gerald R. Ford (R–Mich.), Republican Leader, Prepared for Delivery on the Floor of the U.S. House of Representatives on April 15, 1970, https://perma.cc/G9PF-MZSW. ↩︎
58. Walter Nixon v. United States, 506 U.S. 224 (1993). ↩︎
59. List of Individuals Impeached by the House of Representatives, U.S. House of Representatives: History, Art & Archives, https://perma.cc/X7NN-TMX8. ↩︎
60. Hoffer & Hull, supra at 228–63. ↩︎
61. Id. ↩︎
62. Impeachment Trial of Justice Samuel Chase, 1804–05, U.S. Senate, https://perma.cc/MT23-5CDX. ↩︎
63. Impeachment Trial of President Andrew Johnson, 1868, U.S. Senate, https://perma.cc/6ETZ-VL5F. ↩︎
64. 272 U.S. 52 (1926). ↩︎
65. Russell Riley, The Clinton Impeachment and Its Fallout, Miller Center, https://perma.cc/PV28-P4VV. ↩︎
66. Michael J. Gerhardt, The Law of Presidential Impeachment: A Guide for the Engaged Citizen 114 (2024). ↩︎
67. Victoria F. Nourse, The Impeachments of Donald Trump: An Introduction to Constitutional Interpretation 71–82 (2021). ↩︎
68. Id. at 78–80. ↩︎
69. Id. at 86–89. ↩︎
70. Id. at 189. ↩︎
71. Joan Biskupic, John Roberts Ducks the Spotlight by Skipping the Second Trump Impeachment Trial, CNN (Jan. 26, 2021), https://perma.cc/E3XM-EKQT. ↩︎
72. 418 U.S. 683 (1974). ↩︎
73. Gerhardt, supra ch. 3. ↩︎
74. Articles of Impeachment Adopted by the House of Representatives Committee on the Judiciary, The American Presidency Project (July 27, 1874), https://perma.cc/6DY6-SGWG. ↩︎
75. Berger, supra. ↩︎
76. Impeachments of Federal Judges, Federal Judicial Center, https://perma.cc/SBC8-DYQM. ↩︎
77. Impeachment Trial of Secretary of War William Belknap, 1876, U.S. Senate, https://perma.cc/J87H-DN4U. ↩︎
78. 3 Deschler’s Precedents, ch. 14, § 18, 2205–46, https://perma.cc/5HGV-LZPG. ↩︎
79. Ritter v. United States, 84 Ct. Cl. 293 (1936). ↩︎
80. Kaitlin E. O’Brien & Ian Binnington, West H. Humphreys: A Civil War Impeachment, https://perma.cc/MD9L-562Z. ↩︎
81. 3 Hinds’ Precedents §§ 2385–97. ↩︎
82. H. Rpt. 111-427 (2010), https://perma.cc/UV5W-UVNS. ↩︎
83. Ben Evans, Senate Convicts Federal Judge, Removing Him from Office, Wash. Times (Dec. 8, 2010). ↩︎
84. Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses, 62 S. Tex. L. Rev. 349, 403–410. ↩︎
85. Adam Liptak, A Law Professor’s Provocative Argument: Trump Has Not Yet Been Impeached, N.Y. Times (Dec. 30, 2019), https://perma.cc/8W7D-7V8J. ↩︎
86. Bruce Ackerman, The Case Against Lameduck Impeachment 9–14 (1999). ↩︎
87. Brian 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. L. & Pol. 13 (2001). ↩︎