Article I, Section 3: The Senate

Article I, Section 3 of the United States Constitution detailed how senators would be elected, their qualifications, and their powers. However, a large portion of Section 3 was overturned by the Seventeenth Amendment in 1912. Before the Seventeenth Amendment, United States Senators were chosen by legislators from their state - instead of being elected by the general population. But as early as 1826 political activists were advocating for the "direct election" of senators, seeking to put that power in the hands of the people. 

Which Parts of Article III, Section 2 Remain in Effect?

The Seventeenth Amendment supersedes all of Clause 1 and part of Clause 2. After the amendment was ratified in 1913, we're left with:

Clause 3:

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

Clause 4:

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

Clause 5:

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

Clause 6:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Clause 7:

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.

The Senate's Power Over Impeachment Trials

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

Just as the Constitution vests the House with "sole"1 authority to impeach government officials, Article I, Section 3, Clause 6 entrusts the Senate with the "sole" power to try impeachments. And just as the Constitution authorizes the House to establish its own procedures, including for impeachments, it empowers the Senate to determine its own rules for impeachment trial proceedings. The Senate's impeachment rules have remained largely the same since their adoption during the trial of President Andrew Johnson.2

However, while most impeachment trials were historically conducted on the Senate floor with the entire Senate participating, the Senate adopted Rule XI in 1935, which permits a committee to take evidence during impeachment trials. This rule was first implemented in the trial of Judge Claiborne in 1986; and the contemporary practice, at least with respect to the more common impeachment of federal judges, is for the Senate to appoint a special trial committee to receive and report evidence. 

After issuance of a report, the full Senate then convenes to consider the report; and after a closed deliberative session, publicly votes on the impeachment articles. The immediate effect of conviction upon an article of impeachment is removal from office,3 although the Senate may subsequently vote on whether the official shall be disqualified from again holding an office of public trust under the United States.4 If future disqualification from office is pursued, a simple majority vote by the Senate is required.5

Because impeachment is a political process largely unchecked by the judiciary, the role of the Senate in impeachment proceedings is primarily determined by historical practice, rather than judicial interpretation.6 Examination of the Senate's practices is thus central to understanding the Constitution's provision granting that body power to conduct impeachment trials.

How Impeachment Trials Work in the Senate

​The Senate enjoys broad discretion in establishing procedures to be undertaken in an impeachment trial. For instance, in a lawsuit challenging the Senate's use of a trial committee to take and report evidence, in 1993, the Supreme Court in Nixon v. United States unanimously ruled that the suit posed a nonjusticiable political question and was not subject to judicial resolution.The Court explained that the term "try" in the Constitution's provisions regarding impeachment was textually committed to the Senate for interpretation and lacked sufficient precision to enable a judicially manageable standard of review.8

In reaching this conclusion, the Court noted that the Constitution imposes three precise requirements for impeachment trials in the Senate: 

  1. Members must be under oath during the proceedings; 
  2. Conviction requires a two-thirds vote; and 
  3. The Chief Justice must preside if the President is tried.

Given these three clear requirements, the Court reasoned that the Framers "did not intend to impose additional limitations on the form of the Senate proceedings by the use of the word 'try.'"10 Accordingly, subject to these three clear requirements of the Constitution, the Senate enjoys substantial discretion in establishing its own procedures during impeachment trials.

The Senate's discretion to establish procedures for an impeachment trial extends to how the body will receive evidence. In addition to relying on the evidentiary record prepared by the House, Senate impeachment trials have generally involved the presentation of additional evidence by witnesses appearing before either the Senate or a trial committee. The different approaches adopted in past presidential impeachment trials, however, display the scope of the Senate's discretion in this regard. 

In the trial of Andrew Johnson, the Senate took live testimony from more than forty witnesses.11 In the trial of Bill Clinton the Senate chose to hear from three witnesses through videotaped depositions rather than through live questioning.12 In contrast, the Senate chose not to obtain witness testimony in either of the two trials of Donald Trump.13

While the Senate determines for itself how to conduct impeachment proceedings, the nature and frequency of Senate impeachments trial are largely dependent on the impeachment charges brought by the House. The House has impeached thirteen federal district judges, a judge on the Commerce Court, a Senator, a Supreme Court Justice, the secretary of an executive department, and three Presidents.14 But the Senate ultimately has only convicted and removed from office seven federal district judges and a Commerce Court judge. While this pattern obviously does not mean that Presidents or other civil officers are immune from removal based on impeachment,15 the Senate's acquittals may be deemed to have precedential value when assessing whether particular conduct constitutes a removable offense. For instance, the first subject of an impeachment by the House involved a sitting U.S. Senator for allegedly conspiring to aid Great Britain's attempt to seize Spanish-controlled territory.16 The Senate voted to dismiss the charges,17 and no Member of Congress has been impeached since. The House also impeached Supreme Court Justice Samuel Chase, who was widely viewed by Jeffersonian Republicans as openly partisan for, among other things, misapplying the law. The Senate acquitted Justice Chase, establishing a general principle that impeachment is not an appropriate remedy for disagreement with a judge's judicial philosophy or decisions.18

Footnotes:

  1. The Constitution contains a number of provisions that are relevant to the impeachment of federal officials. Article I, Section 2, Clause 5 grants the sole power of impeachment to the House of Representatives; Article I, Section 3, Clause 6 assigns the Senate sole responsibility to try impeachments; Article I, Section 3, Clause 7 provides that the sanctions for an impeached and convicted individual are limited to removal from office and potentially a bar from holding future office, but an impeachment proceeding does not preclude criminal liability; Article II, Section 2, Clause 1 provides that the President enjoys the pardon power, but it does not extend to cases of impeachment; and Article II, Section 4 defines which officials are subject to impeachment and what kinds of misconduct constitute impeachable behavior. Article III does not mention impeachment expressly, but Section 1, which establishes that federal judges shall hold their seats during good behavior, is widely understood to provide the unique nature of judicial tenure. And Article III, Section 2, Clause 3 provides that trials, except in Cases of Impeachment, shall be by jury.
  2. See Procedure and Guidelines for Impeachment Trials in the Senate, S. Doc. No. 93-33, 99th Cong., 2d Sess. (1986); Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 33 (2000).
  3. U.S. Const. art. II, § 4.
  4. See 3 Asher C. Hinds, Hinds' Precedents of the House of Representatives of the United States § 2397 (1907); 6 Clarence Cannon, Cannon's Precedents of the House of Representatives of the United States § 512 (1936).
  5. See 6 Cannon, supra note 4, § 512. See, e.g., 49 Cong. Rec. 1447–48 (1913) (vote to disqualify Judge Robert W. Archbald, thirty-nine yeas, thirty-five nays).
  6. See Nixon v. United States, 506 U.S. 224, 226 (1993).
  7. 506 U.S. 224, 238 (1993).
  8. Id. at 229–30.
  9. Id. at 230.
  10. Id.
  11. See Impeachment Trial of President Andrew Johnson, 1868, U.S. Senate.
  12. See Proceedings of the United States Senate in the Impeachment Trial of President William Jefferson Clinton, Vol. III: Depositions and Affidavits, 106th Cong., 1st Sess., S. Doc. No. 106-4 (1999). The Senate also received three affidavits. Id. at 2534-36.
  13. See Proceedings of the United States Senate in the Impeachment Trial of President Donald John Trump, Vol. II: Floor and Trial Proceedings, 116th Cong., S. Doc. No. 116-18, at 1498–99 (2020). In the second impeachment trial, the House Managers sought to obtain a Senate subpoena for testimony from Congresswoman Jaime Herrera Beutler (D-WA). The Senate approved a motion making it in order to debate such a subpoena, but the Senate instead agreed to a stipulation allowing introduction of Rep. Herrera Beutler's existing public statement. 167 Cong. Rec. S717–19 (daily ed. Feb. 13, 2021).
  14. See List of Individuals Impeached by the House of Representatives, U.S. House of Representatives.
  15. U.S. Const. art. II, § 4.
  16. See David Currie, The Constitution in Congress: The Federalist Period 1789–1801 275–81 (1997).
  17. 8 Annals of Cong. 2318 (1799).
  18. See Keith E. Whittington, Reconstructing the Federal Judiciary: The Chase Impeachment and the Constitution, 9 Stud. Am. Pol. Dev. 55 (1986); William H. Rehnquist, Grand Inquests: The Historic Impeachments 134 (1992).

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