The final section of Article II, which generally describes the executive branch, specifies that the “President, Vice President and all civil Officers of the United States” shall be removed from office if convicted in an impeachment trial of “Treason, Bribery, or other high Crimes and Misdemeanors.” Two clauses in Article I lay out the role of the House of Representatives and the Senate in impeachments and in trials of impeachment. In practice, impeachments by the House have been rare, and convictions after a trial by the Senate even less common. Two Presidents, one Senator, one cabinet officer, and fifteen judges have been impeached, and of those only eight judges have been convicted and removed from office.
This sparse history has given Congress relatively few opportunities to flesh out the bare bones of the constitutional text. The Impeachment Clause was included in the Constitution in order to create another check against abuses by government officials and to give Congress the ability to remove from power an unfit officer who might otherwise be doing damage to the public good. Unsurprisingly, most “civil officers of the United States” who have found themselves damaged by scandal have preferred to resign rather than endure an impeachment. The House and Senate have refused to act on impeachment charges against individuals who were not then holding a federal office. The Senate early on decided that members of Congress should be expelled by their individual chambers rather than be subjected to an impeachment trial. Presidents have acted quickly to remove problematic members of the executive branch. As a practical matter, judges and Presidents have been the primary targets of impeachment inquiries.
Much of the controversy surrounding the Impeachment Clause has revolved around the meaning of “high Crimes and Misdemeanors,” a phrase that is unique to the impeachment context. The Clause seems to rule out the possibility of Congress impeaching and removing officials simply for incompetence or general unfitness for office. Impeachments are not a remedy for government officials who are simply bad at their jobs. It is a remedy for abuses of public office. But the line between general unfitness and abuse of office can be blurry.
The first Senate conviction in an impeachment trial was of a federal judge, John Pickering, who was charged with issuing rulings that were “contrary to his trust and duty as a judge” and “in violation of the laws of the United States,” as well as appearing on the bench “in a state of total intoxication” in a manner “disgraceful to his own character as a judge and degrading to the honor of the United States.” The judge’s son filed a petition with the Senate explaining the “real situation,” that his father “has been, and now is, insane.” The judge no longer had the mental capacity to commit high crimes. While the Senate preferred not to delve into that question in detail, it was uncomfortable voting on a resolution stating that the judge was “guilty of high crimes and misdemeanors.” The senators simply concluded that he was “guilty as charged,” and voted to remove him from office. The Senate was not anxious to say that Pickering had committed a crime, but neither was it willing to leave him on the bench.
While the Pickering case was idiosyncratic and awkward, it raised issues that remain unresolved about the scope of the impeachment power. Can a government official be impeached and convicted for innocent mistakes, or must they have bad intentions? Is it sufficient to justify an impeachment and conviction if a government official commits acts that are “disgraceful,” contrary to the “trust and duty” of their office, or “degrading to the honor of the United States,” or can impeachment only be justified when an official has committed criminal acts? Do “high crimes” include only criminal offenses for which one could be prosecuted in a court of law, or can they include other forms of misconduct? Are some violations of the law too trivial to be considered “high crimes” that would justify an impeachment? Can private misdeeds justify an impeachment, or must the actions in question be connected to the conduct of the office that an individual holds?
While still serving as a member of the House of Representatives, Gerald Ford once said that impeachable offenses are whatever a majority of the House considered them to be. The burden is on those who want to bring impeachment charges to persuade a majority of the members of the House of Representatives and two-thirds of the members of the Senate that an act is so serious as to justify removing an individual from office. The impeachment power is a tool that most members of Congress are unwilling to use if it can be avoided, but they have also wanted to preserve it as a tool that is flexible enough to be used in any exceptional circumstances that might arise.
The impeachment power exists at the far margins of American constitutionalism. The Founders sought to create three branches of government, each independent of the others and enmeshed in a system of checks and balances. They thought that if government power collapsed into a single set of officials, civil liberty and political effectiveness would be compromised. Each branch of government was armed with its own set of powers and responsibilities and given sufficient tenure and resources to be able to act on its own judgment.
But the desire for independence had to be balanced against a concern with accountability. Government officials needed to be independent enough to be able to act in the public interest, but not so independent as to be able to exercise unchecked power. When the Founders wanted to ensure accountability, they mostly relied on elections and the voters to hold government officials responsible for their actions. But for cases in which abusive behavior could not be tolerated until the next election, they provided for the possibility of impeachment and removal. That power they were only willing to entrust to the most democratic branch of the government, the legislature.
If the impeachment power is going to serve its purpose, it needs to be flexible. When drafting the Impeachment Clause, the delegates in Philadelphia rejected the proposal that officials could be removed for “maladministration.” They preferred language that emphasized abuses and crimes; impeachment in cases of “Treason, Bribery, or other high Crimes and Misdemeanors.” But what might fall into the category of “other high Crimes and Misdemeanors” was still quite unclear.
There are risks associated with either a narrow or broad reading of impeachable offenses. A narrow reading of the Clause risks making the impeachment power inflexible and unable to respond to unanticipated bad behavior on the part of government officials. A broad reading of the Clause risks creating a partisan weapon that can be used by legislators to undermine the independence of other government officials.
If the examples of treason and bribery are taken to be characteristic of the full scope of impeachable offenses, then government officials might only be removable if they commit criminal acts involving their public office. That is an important class of misdeeds, but it seems unlikely that it would capture the full range of behavior that might put the public good in immediate jeopardy. Merely “private” offenses like tax evasion, perjury, sexual assault and obstruction of justice have been deemed worthy of impeachment investigations precisely because they call into question that ability of a judge or executive officer to continue to properly perform their duties and maintain the dignity and respect of the office that they hold. Even some instances of non-criminal misbehavior by a high government official might be regarded as too intolerable to allow them to continue to exercise their public responsibilities.
This essay is part of a discussion about the Impeachment Clause with Neil J. Kinkopf, Professor of Law, Georgia State University College of Law. Read the full discussion here.
The broader the category of impeachable offenses is understood to be the easier it is for mere political disagreements to become grounds for impeachment investigations. It is all too common for partisans to believe that their political foes are not just wrong but dangerously wrong, not just mistaken but willfully mistaken, not just erroneous but abusive. If the impeachment power is used to settle political scores, then the independence of the separate branches of government will be undermined. If routine impeachments became a tool for overcoming policy disputes and political obstructions, then political power would gradually be centralized in Congress, with the judiciary and the executive reduced to being little more than extensions of the legislative will. The Constitution was not designed to have Presidents and judges sit only at the pleasure of the Congress.
In practice, three factors have discouraged Congress from abusing the impeachment power. First, the House and the Senate have built up precedents over time that give some substantive content to the scope of impeachable offenses. The House is more comfortable pursuing an impeachment and the Senate more comfortable in convicting in the case of an impeachment if the alleged actions are similar to the kinds of behavior that have led to impeachments and convictions in the past.
Second, the Constitution not only sets a substantive standard for impeachable offenses; it also creates procedural barriers for removing government officers. The House must muster a majority to sustain an impeachment effort, and the House managers must be able to persuade two-thirds of the Senators to win a conviction. Especially in the Senate, that hurdle necessitates building a coalition that crosses party lines. A narrowly partisan impeachment effort is unlikely to result in a conviction and removal, and so House leaders have rarely thought impeachments are worth the effort unless members of the minority party are in agreement that impeachable offenses have been committed.
Third, the members of Congress are ultimately accountable to the voters for their actions. If the public is not convinced that an impeachment is justified, legislators are disinclined to risk their own reelection by tilting at windmills.
The Founders left a powerful weapon in the hands of Congress in the form of the impeachment power. Like all powers, the impeachment power is subject to misuse and abuse. The ultimate check on how that power is used is public sentiment. The burden is on those who think that an impeachment is appropriate to persuade others that the circumstances warrant taking such drastic measures. Exercising the impeachment power requires the ability to reach across the political aisle and forge a political consensus that the danger of leaving an individual in power is too great to be risked. In the absence of that consensus, legislators are forced to rely on the more mundane tools that they have at their disposal to check abuses of power and advance the public welfare.
What sort of conduct is so harmful that Congress is justified in impeaching and removing an officer who commits it? The Constitution’s answer is “treason, bribery, or other high crimes and misdemeanors.” Treason and bribery are clear enough, but the concluding phrase “other high crimes and misdemeanors” is anything but clear.
It is open-ended for the reason many constitutional provisions are vague and open-ended. In the words of the great Chief Justice John Marshall, the “constitution [is] intended to endure for ages to come and, consequently, to be adapted to the various crises of human affairs.” In the context of impeachment, this means that the Constitution cannot be expected to specify in detail every ground on which impeachment is or is not permissible. If it attempted to do so, an individual who should be impeached might evade this punishment because the officer’s conduct does not meet some technical element of the definition even though the officer’s conduct had so harmed the nation that all agree the officer should be removed. Instead, the Constitution sets forth the general principle of impeachment and leaves its more specific definition to be developed by the House of Representatives and the Senate.
In this light, then-Representative Gerald Ford’s claim that the House could impeach an officer on any ground it wishes may seem plausible. But the Ford position goes too far. It ignores the Constitution’s text and structure. If the Constitution means to allow impeachment on any ground whatsoever, then why would the Constitution bother to set forth that impeachment and removal may be based only on conduct that rises to the level of “treason, bribery, or other high crimes and misdemeanors”? In fact, the Framers debated this phrase and settled on this formulation precisely to prohibit Congress from impeaching officers for any reason at all. The Framers were determined to limit the grounds on which an officer could be impeached in order to safeguard another constitutional principle: the separation of powers.
It is clear that, in our constitutional system of government, the executive branch (the President, the cabinet, and other officers subordinate to the President) and the judiciary (the Supreme Court and the lower federal courts) are to be independent from the legislature (the House of Representatives and the Senate). The Framers recognized the potential for impeachment to undermine this principle. It is a well-established legal principle that the power to remove is the power to control. The President, for example, can control the agencies of the executive branch principally because the President can remove the heads of the agencies (such as cabinet secretaries) for any reason at all, including for not following an order from the President. They are said to serve at-will because the President can remove them at will. If Congress can impeach and remove the President or Supreme Court Justices for any reason at all, then these officers serve at the will of Congress and are subject to its control.
An early draft of the Constitution gave Congress the power to impeach and remove officers for “maladministration.” James Madison objected to this because the term was so vague that it would allow impeachment for any reason at all. As he put it, “so vague a term will be equivalent to a tenure during the pleasure of the Senate.” The term “maladministration" was then deleted from the draft and replaced by the phrase “other high crimes and misdemeanors.” This shows that the Framers meant for the phrase “high crimes and misdemeanors” to signify only conduct that seriously harms the public and seriously compromises the officer’s ability to continue. If the phrase is given a less rigorous interpretation, it could allow Congress to influence and control the President and the courts.
This essay is part of a discussion about the Impeachment Clause with Keith E. Whittington, William Nelson Cromwell Professor of Politics at Princeton University. Read the full discussion here.
There is a second constitutional principle at stake in defining the scope of the impeachment power: our commitment to democracy. Allowing Congress to remove Presidents, and executive officers who serve under them, has the effect of thwarting the will of the people. After all, the President is elected to serve a four-year term. How, in a democracy, can we justify giving Congress (or anyone other than the people, for that matter) the power to overrule a presidential election? This can only be justified on the ground that the President has committed acts so dangerous to the public that the President may not be allowed to remain in office until the next election.
Imagine, for example, if it were discovered that a President was secretly a spy and agent for a foreign power. In that sort of case all would agree that the danger to our constitutional system of government, indeed to our nationhood, is such that it is impractical to wait for a presidential election to remove the President. The Framers agreed on this point too. But this emphasizes just how important it is to limit the power to truly egregious conduct and serious harms to the public. Otherwise, this narrow and speculative potential could undermine our basic commitment to democracy.
The constitutional commitment to democracy could explain an interesting feature of the history of impeachments in the United States: no President or executive officer has been removed from office through impeachment (though the threat of impeachment and conviction hastened the resignation of Secretary of War William Belknap in 1876 on charges of financial corruption). Each of the eight officers to be impeached, convicted, and removed has been a judge. Federal judges are appointed, not elected, and enjoy life tenure—that is, unlike a President who serves a four-year term, federal judges serve until they die or decide to retire. To remove a federal judge, then, does not raise the same sort of concerns about overruling an election that removing an executive branch officer does.
Two Presidents—Andrew Johnson and Bill Clinton—have been impeached by the House of Representatives. Neither was convicted by the Senate. Andrew Johnson was impeached in 1868, the last year of his term. One important factor in his acquittal was the reluctance of several Senators to vote for impeachment with a presidential election so close at hand. Best, they thought, to let the voters have their say. Similarly, when the Senate met to try and deliberate on the impeachment of President Clinton, many argued that removing him from office would repudiate the judgment of the people who had reelected him.
Impeachment is a powerful tool. It must be closely limited to situations of conduct that inflicts serious harm on the public and that seriously compromises the officer’s ability to function in office. Otherwise, it could undermine our constitutional system of separation of powers and thwart our fundamental commitment to democracy. The Framers wisely recognized these dangers and added the phrase “high crimes and misdemeanors” precisely to limit the scope of the impeachment power to these most egregious circumstances and to prohibit its use beyond them.