Interpretation Article II, Section 4

by: Neil J. Kinkopf and Keith E. Whittington

Neil J. Kinkopf
Neil J. Kinkopf Professor of Law, Georgia State University College of Law
Keith E. Whittington
Keith E. Whittington William Nelson Cromwell Professor of Politics at Princeton University

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.