Article II, Section 4: Impeachment

In the United States, "impeachment" usually refers to a process the legislative branch may use to charge public officials with misconduct. This power is granted to Congress by Article II, Section 4 of the United States Constitution. It's a unique political and legal process that, unsurprisingly, makes headlines when the legislature chooses to use it. 

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What Does the Constitution Say About Impeachment?

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.

What It Means

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

The Constitution gives Congress the authority to impeach and remove the President,1 Vice President, and all federal civil officers for treason, bribery, or other high crimes and misdemeanors.2 This tool was inherited from English practice, in which Parliament impeached and convicted ministers and favorites of the Crown in a struggle to rein in the Crown's power. Congress's power of impeachment is an important check on the executive and judicial branches, recognized by the Framers as a crucial tool for holding government officers accountable for violations of the law and abuses of power.3 Congress has most notably employed the impeachment tool against the President and federal judges, but all federal civil officers are subject to removal by impeachment.4 The practice of impeachment makes clear, however, that Members of Congress are not civil officers subject to impeachment and removal.5

While judicial precedents inform the effective substantive meaning of various provisions of the Constitution, impeachment is at bottom a unique political process largely unchecked by the judiciary. While the meaning of treason and bribery is relatively clear, the scope of high crimes and misdemeanors lacks a formal definition and has been fleshed out over time, in a manner perhaps analogous to the common law, through the practice of impeachments in the United States Congress.6 The type of behavior that qualifies as impeachable conduct, and the circumstances in which impeachment is an appropriate remedy for such actions, are thus determined by, among other things, competing political interests, changing institutional relationships among the three branches of government, and legislators' interaction with and accountability to the public.7 The weight of historical practice, rather than judicial precedent, is thus central to understanding the nature of impeachment in the United States.

Who Can Be Impeached?

The Constitution provides that "[t]he President, Vice President, and all civil Officers of the United States" are subject to removal from office upon impeachment and conviction.8 However, neither the text nor early historical sources precisely delineate who qualifies as a "civil officer". For example, debates at the Constitutional Convention do not appear to reveal the scope of who may be impeached beyond the provision's applicability to the President.9 And while the Federalist Papers emphasized that the power of impeachment serves as a check on the executive10 and judicial branches,11 they did not outline exactly what types of officials were considered to be civil officers.12

Historical practice thus informs the understanding of who qualifies as a civil officer. Aside from the President and Vice President, who are plainly identified in the Constitution's text as impeachable officials, historical practice indicates that federal judges clearly qualify as officers subject to impeachment and removal, as the majority of proceedings have applied to those positions.13 Congress has also impeached the head of a cabinet-level executive department.14 While this indicates a congressional understanding that high-level executive officers may be subject to impeachment, it is unclear how far down the ranks of the federal bureaucracy this principle travels.15

The Constitution's structure and historical practice also indicate that impeachment likely does not apply to Members of Congress.16 First, Article II, Section 3 provides that officers of the United States are commissioned by the President;17 Members of Congress receive no such commission. Second, Members may be removed from office by other means explicitly provided in the Constitution.18 Third, the Ineligibility Clause bars any person "holding any office under the United States" from serving in any house of Congress, indicating the Members of Congress are not considered officers of the United States.19

Finally, congressional practice indicates that Members of Congress are not officers of the United States.20 In 1797, the House of Representatives voted to impeach Senator William Blount, the first impeachment in the history of the young Republic.21 Two years later, the Senate concluded that Senator Blount was not a civil officer subject to impeachment and voted to dismiss the articles because that body lacked jurisdiction over the matter.22 This determination has been accepted ever since by the House and the Senate, and since then, the House has never again voted to impeach a Member of Congress.23

Learn More: Presidential Impeachment Cases

What Constitutes an Impeachable Offense?

The Constitution provides that the grounds of impeachment are for "treason, bribery, or other high Crimes and Misdemeanors." While the types of conduct constituting treason and bribery are relatively well-understood terms, 24 the meaning of "high Crimes and Misdemeanors" is not defined in the Constitution or in statute.25 The basic framework for impeachment was inherited from English practice by the colonies in their adoption of state constitutions.26 Both experiences informed the adoption of impeachment provisions in the federal Constitution.

The common method for interpreting the Constitution's impeachment provisions stands in some contrast to that of other constitutional provisions. Whereas judicial precedent drives the prevailing understanding of many provisions of the Constitution, impeachment is essentially a political process that is largely unreviewable by the judicial branch.27 As such, the historical practice of impeachment proceedings, rather than judicial decisions, informs our understanding of the Constitution's meaning in this area. In this vein, the meaning of "high crimes and misdemeanors" is informed not by judicial decisions, but by the history of congressional impeachments.28

Impeachment has been used to remove government officers who abuse the power of the office; conduct themselves in a manner incompatible with the purpose and function of their office; or misuse the office for improper or personal gain.29

What are High Crimes and Misdemeanors?

The concept of impeachment and the standard of "high crimes and misdemeanors"30 originally stems from English Parliamentary practice.31 The House of Commons impeached and tried before the House of Lords both private citizens and government officers, but not the Crown itself, for offenses considered beyond the reach of the common-law criminal courts.32 The tool was used by Parliament to corral the power of the Crown and police political offenses committed by ministers and favorites of the King.33 Impeachment applied to conduct that damaged the state or subverted the government.34 The standard of "high crimes and misdemeanors" appears intended to address conduct involving an individual's abuse of power or office.35 Punishment for a conviction could include a range of penalties, including imprisonment, fines, or even death.36

The American colonies adopted their own impeachment procedures that informed the Framers' understanding of impeachment.37 These traditions extended into state constitutions established during the early years of the Republic. During the years of 1776-1787, states adopted into their constitutions impeachment provisions that limited impeachment to government officials and restricted the punishment for impeachment to removal from office with the possibility of future disqualification from office.38 At the state level, the body charged with trying an impeachment varied.39

The standards for impeachments adopted at the Constitutional Convention were thus inspired by both English and colonial practice, but ultimately differed in structure from both these traditions. In particular, the Framers aimed to narrow the scope of impeachable offenses and persons subject to impeachment as compared to English practice.40 For example, while according to English practice at the time of the Constitution's enactment, impeachment extended to anyone except a member of the royal family, the federal Constitution limited impeachment to federal government officers (including the President and Vice President).41 In addition, whereas the English Parliament never formally defined the parameters of what counted as impeachable conduct, the Framers restricted impeachment to treason, bribery, and high crimes and misdemeanors.42 In English practice, the Crown could pardon individuals following an impeachment conviction.43 In contrast, the Framers restricted the pardon power from being applied to impeachments, rendering the impeachment process essentially unchecked by the executive branch.44

The Framers also rejected a proposal made during the Constitutional Convention to include – in addition to treason and bribery45 – "maladministration" as an impeachable offense, which would have presumably incorporated a broad range of common-law offenses.46 Although "maladministration" was a ground for impeachment in many state constitutions at the time of the Constitution's drafting,47 the Framers instead adopted the term high Crimes and misdemeanors from English practice. James Madison, at the Constitutional Convention, objected to the inclusion of "maladministration" as grounds for impeachment because such a vague impeachment standard would "be equivalent to a tenure during pleasure of the Senate."48 Immediately thereafter, the Convention voted to include "high crimes and misdemeanors" instead.49 Arguably, the Framers' rejection of such a broad term supports the view that congressional disagreement with a President's policy goals is not sufficient grounds for impeachment.50

Of particular importance to the understanding of the practice in America were the roughly contemporaneous British impeachment proceedings of Warren Hastings, the governor general of India, which were transpiring at the time of the Constitution's formulation and ratification.51 Hastings was charged with high crimes and misdemeanors, which included corruption and abuse of power.52 At the Constitutional Convention, George Mason positively referenced the impeachment of Hastings. At that point in the Convention, a proposal to define impeachment as appropriate for treason and bribery was under consideration. George Mason objected, noting that treason would not cover the misconduct of Hastings.53 Moreover, he thought impeachment should extend to "attempts to subvert the Constitution."54 Accordingly, he proposed that maladministration be included as an impeachable offense, although, as noted above, this was eventually rejected in favor of "high crimes and misdemeanors."55

The Framers thus ultimately considered impeachment to be an essential tool to hold government officers accountable for political crimes.56 The representatives of the people were best placed to investigate the "conduct of public men."57 Moreover, impeachment is an essential bulwark in the separation of powers for the legislature against the power of the executive and judicial branches. The President enjoys the power to appoint – with Senate approval – officers of the United States in the executive and judicial branches, as well as the authority to remove those in the executive branch.58 Judicial officers, once appointed, maintain their positions for life.59 Consequently, Congress's power of impeachment serves as a crucial legislative check on the potential "encroach[ing] power of executive branch officers"60 and likewise guards against judicial "usurpations on the authority of the legislature."61

Evidence of precisely what conduct the Framers and Ratifiers of the Constitution considered to constitute high crimes and misdemeanors is relatively sparse. At the North Carolina ratifying convention, James Iredell, later to serve as an Associate Justice of the Supreme Court, noted the difficulty in defining what constitutes an impeachable offense, beyond causing injury to the government.62 For him, impeachment "was calculated to bring [offenders] to punishment for crime which is not easy to describe, but which every one must be convinced is a high crime and misdemeanor against government. [T]he occasion for its exercise will arise from acts of great injury to the community."63 He thought the President would be impeachable for receiving a "bribe or act[ing] from some corrupt motive or other,"64 but not merely for "want of judgment."65 Similarly, Samuel Johnston, then the governor of North Carolina and later the state's first Senator, thought impeachment was reserved for "great misdemeanors against the public."66

At the Virginia ratifying convention, a number of individuals claimed that impeachable offenses were not limited to indictable crimes.67 For example, James Madison argued that were the President to assemble a minority of states in order to ratify a treaty at the expense of the other states, this would constitute an impeachable "misdemeanor."68 And Virginia governor Edmund Randolph, who would later become the nation's first Attorney General, noted that impeachment was appropriate for a "willful mistake of the heart," but not for incorrect opinions.69 In addition, Randolph argued that impeachment was appropriate for a President's violation of the Foreign Emoluments Clause, which, he noted, guards against corruption.70

James Wilson, delegate to the Constitutional Convention and later a Supreme Court Justice, delivered talks at the College of Philadelphia following the adoption of the federal Constitution concerning impeachment. He claimed that impeachment was reserved to "political crimes and misdemeanors, and to political punishments."71 He argued that, in the eyes of the Framers, impeachments did not come "within the sphere of ordinary jurisprudence. They are founded on different principles; are governed by different maxims; and are directed to different objects."72 Consequently, for Wilson, the impeachment and removal of an individual did not preclude a later trial and punishment for a criminal offense predicated on the same behavior.73

At the time of ratification of the Constitution, the phrase "high crimes and misdemeanors" thus appears understood to have applied to uniquely "political" offenses, or misdeeds committed by public officials against the state.74 Alexander Hamilton, in explaining the Constitution's impeachment provisions, described impeachable offenses as arising from "the misconduct of public men, or in other words from the abuse or violation of some public trust."75 Such offenses were "Political, as they relate chiefly to injuries done immediately to the society itself."76 In the centuries following the Constitution's ratification, precisely what behavior constitutes a high crime or misdemeanor has been the subject of much debate.77

Modern Impeachable Offenses

The twentieth century saw further development of the scope of conduct considered by Congress to be impeachable, including the extent to which non-criminal conduct can constitute impeachable behavior and the proper role of a federal judge. Further, the question of judicial review of impeachments received its first treatment in the federal courts.

The question of whether Congress can designate particular behavior as a "high crime or misdemeanor" via statute arose in the impeachment of Charles Swayne, a federal district judge for the Northern District of Florida, during the first decade of the twentieth century. A federal statute provided that federal district judges live in their districts and that anyone violating this requirement was "guilty of a high misdemeanor."78 Judge Swayne's impeachment originated from a resolution passed by the Florida legislature requesting the state's congressional delegation to recommend an investigation into his behavior.79 The procedures followed by the House in impeaching Judge Swayne were somewhat unique. First, the House referred the impeachment request to the Judiciary Committee for investigation. Following this investigation, the House voted to impeach Judge Swayne based on the report prepared by the Committee.80 The Committee was then tasked with preparing articles of impeachment to present to the Senate.81 The House then voted again on these individual articles, each of which received less support than the single prior impeachment vote had received.82 The impeachment articles accused Judge Swayne of a variety of offenses, including misusing the office, abusing the contempt power, and living outside his judicial district. At the trial in the Senate, Judge Swayne essentially admitted to certain accused behavior, although his attorneys did dispute the residency charge, and Swayne instead argued that his actions were not impeachable.83 The Senate vote failed to convict Judge Swayne on any of the charges brought by the House.84

Can Someone Be Impeached for Non-Criminal Acts?

The impeachability of certain non-criminal behavior for federal judges was firmly established by the impeachment of Judge Robert W. Archbald in 1912. Judge Archbald served as a federal district judge before being appointed to the short-lived U.S. Commerce Court, which was created to review decisions of the Interstate Commerce Commission.85 He was impeached by the House for behavior occurring both as a federal district judge and as a judge on the Commerce Court.86 The impeachment articles accused Judge Archbald of, among other things, using his position as a judge to generate profitable business deals with potential future litigants in his court.87 This behavior did not violate any criminal statute and did not appear to violate any laws regulating judges.88 Judge Archbald argued at trial that non-criminal conduct was not impeachable. The Senate voted to convict him on five articles and also voted to disqualify him from holding office in the future.89 Four of those articles centered on behavior that occurred while Judge Archbald sat on the Commerce Court, the fifth described his conduct over the course of his career.90

In the 1920s, a series of corruption scandals swirled around the administration of President Warren G. Harding. Most prominently, the Teapot Dome Scandal, which involved the noncompetitive lease of government land to oil companies, implicated numerous government officials and led to resignations and the criminal conviction and incarceration of a cabinet-level official.91 The Secretary of the Navy, at the time Edwin Denby, was entrusted with overseeing the development of oil reserves that had recently been located. The Secretary of the Interior, Albert Fall, convinced Denby that the Interior Department should assume responsibility for two of the reserve locations, including in Teapot Dome, Wyoming. Secretary Fall then leased the reserves to two of his friends, Harry F. Sinclair and Edward L. Doheny. Revelations of the lease without competitive bidding launched a lengthy congressional investigation which sparked the eventual criminal conviction of Fall for bribery and conspiracy and Sinclair for jury tampering. President Harding, however, died in 1923, before congressional hearings began. The affair also generated significant judicial decisions examining the scope of Congress's investigatory powers.92

One aspect of the controversy included an impeachment investigation into the decisions of then-Attorney General Harry M. Daugherty.93 In 1922 the House of Representatives referred a resolution to impeach Daugherty for a variety of activities, including his failure to prosecute those involved in the Teapot Dome Scandal, to the House Judiciary Committee.94 The House Judiciary Committee eventually found there was not sufficient evidence to impeach Daugherty. However, in 1924, a Senate special committee was formed to investigate similar matters.95 That investigation spawned allegations of a variety of improper activities in the Justice Department. Daugherty resigned on March 28, 1924.96

In 1926, federal district judge George W. English was impeached for a variety of alleged offenses, including (1) directing a U.S. marshal to gather a number of state and local officials into court in an imaginary case where Judge English proceeded to denounce them; (2) threatening two members of the press with imprisonment without sufficient cause; and (3) showing favoritism to certain litigants before his court.97 Judge English resigned before a trial in the Senate occurred and the Senate dismissed the charges without conducting a trial in his absence.98

Federal district judge Harold Louderback was impeached in 1933 for showing favoritism in the appointment of bankruptcy receivers, which were coveted positions following the stock market crash of 1929 and the ensuing Depression.99 The House authorized a subcommittee to investigate, which held hearings and recommended to the Judiciary Committee that Judge Louderback be impeached.100 The Judiciary Committee actually voted against recommending impeachment, urging censure of Judge Louderback instead, but permitted the minority report that favored impeachment to be reported to the House together with the majority report.101 The full House voted to impeach anyway,102 but the Senate failed to convict him.103

Shortly thereafter, the House impeached federal district judge Halsted L. Ritter for showing favoritism in and profiting from appointing receivers in bankruptcy proceedings; practicing law while a judge; and failing to fully report his income on his tax returns.104 The Senate acquitted Judge Ritter on each individual count alleging specific behavior, but convicted him on the final count which referenced the previous articles, and charged him with bringing his court into disrepute and undermining the public's confidence in the judiciary.105

Congress's impeachment of Judge Ritter was the first to be challenged in court.106 Judge Ritter brought a suit in the Federal Court of Claims seeking back pay, arguing that the charges brought against him were not impeachable under the Constitution and that the Senate improperly voted to acquit on six specific articles but to convict on a single omnibus article.107 In rejecting Judge Ritter's suit, the court held that the Senate has exclusive jurisdiction over impeachments and courts lack authority to review the Senate's verdict.108

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. U.S. Const. art. II, § 4.
  3. See The Federalist Nos. 65, 81 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
  4. U.S. Const. art. II, § 4; see discussion infra ArtII.S4.2.3.3 Impeachable Offenses: Post-Bellum Practices (1865–1900) Impeachable Offenses: Post-Bellum Practices (1865–1900).
  5. See discussion infra ArtII.S4.2.3.1 Early Historical Practice (1789–1860) Impeachable Offenses: Early Historical Practice (1789–1860).
  6. II Joseph Story, Commentaries on the Constitution of the United States § 762 (1833) ("Not but that crimes of a strictly legal character fall within the scope of the power, (for, as we shall presently see, treason, bribery, and other high crimes and misdemeanours are expressly within it;) but that it has a more enlarged operation, and reaches, what are aptly termed, political offences, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties of political office. These are so various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law."); id. §§ 795–98.
  7. See Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis x–xi (2000). See also Story, supra note 6, at § 762.
  8. U.S. Const. art. II, § 4.
  9. Statements from at least one delegate indicate that participants at the Constitutional Convention assumed that judges were subject to impeachment. See 2 The Records of the Federal Convention of 1787, at 66 (Max Farrand ed., 1911) (describing Rufus King's observation that judges would be impeachable because they hold their office during good behavior).
  10. The Federalist No. 66 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
  11. Id. at No. 79; Id. at No. 81; see generally discussion infra ArtIII.S1.2.1.1 Good Behavior Clause: Overview Good Behavior Clause: Overview et seq.
  12. See, e.g., Va. Const. of 1776, para. 14 (providing that the chief executive of the state could only be impeached after leaving office); Del. Const. of 1776, art. 23 (same).
  13. See List of Individuals Impeached by the House of Representatives, U.S. House of Representatives.
  14. See 3 Asher C. Hinds, Hinds' Precedents of the House of Representatives of the United States §§ 2444–68 (1907) [hereinafter Hinds]; see discussion infra ArtII.S4.2.3.3 Impeachable Offenses: Post-Bellum Practices (1865–1900) Impeachable Offenses: Post-Bellum Practices (1865–1900).
  15. Judicial interpretations of which positions qualify as officers under the Appointments Clause may shed light on which executive branch positions are filled by civil officers that are subject to impeachment. See Akhil Reed Amar, On Impeaching Presidents, 28 Hofstra L. Rev. 291, 303 (1999); Michael J. Broyde & Robert A. Schapiro, Impeachment and Accountability: The Case of the First Lady, 15 Const. Comment. 479 (1998). The Supreme Court, in interpreting those provisions, has distinguished between officers, who exercise "significant authority" of the United States, Buckley v. Valeo, 424 U.S. 1, 126 (1976), and employees, or non-officers that are "lesser functionaries subordinate to the officers of the United States." Id. at 126 n.162. The Court has further recognized the Constitution's distinction between principal officers, who must be appointed by the President and confirmed by the Senate, and inferior officers, whose appointment may be placed in the President, department heads, or the courts of law. Edmond v. United States, 520 U.S. 651, 663 (1997). Assuming this line of cases serves as a guide in deciding who is a civil officer subject to impeachment, it appears that "employees," as non-officers, are not subject to impeachment, while principal officers, such as the head of a cabinet-level executive department, are. In between these two categories, historical practice does not indicate whether an inferior officer is subject to impeachment, as the House has never impeached such an individual.
  16. See discussion infra ArtII.S4.2.3.1 Early Historical Practice (1789–1860) Impeachable Offenses: Early Historical Practice (1789–1860); The Federalist No. 66 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
  17. U.S. Const. art. II, § 3.
  18. Id. art. I, § 5.
  19. Id. § 6.
  20. See Legal Aspects of Impeachment: An Overview, DOJ, Office of Legal Counsel 55 n.31 (1974), (The Senator William Blount precedent of 1798 does seem to have determined that the Senate will not try its members on an impeachment.); David Currie, The Constitution in Congress: The Federalist Period 1789–1801 275–281 (1997).
  21. 3 Hinds, supra note 14, at §§ 2300–02.
  22. Id. at § 2318.
  23. See Charles W. Johnson, John V. Sullivan, and Thomas J. Wickham, Jr., House Practice: A Guide to the Rules, Precedents and Procedures of the House 604–06 (2017); Staff of H. Comm. on the Judiciary, 93d Cong., Impeachment, Selected Materials 692 (Comm. Print 1973); Motions Sys. Corp. v. Bush, 437 F.3d 1356, 1373 (Fed. Cir. 2006) ("This principle has been accepted since 1799, when the Senate, presented with articles of impeachment against Senator William Blount, concluded after four days of debate that a Senator was not a civil officer for purposes of the Impeachment Clause."); Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 48 (2000). In addition, in contrast to English practice, impeachment does not extend to private citizens or state officers, but is limited to officers of the federal government. 3 Hinds, supra note 14, at §§ 2007, 2315. No military officer has ever been impeached, which is consistent with the views of some early constitutional commentary that military officers are not subject to impeachment. Justice Joseph Story has suggested that "civil officers" was not intended to cover military officers. See II Joseph Story, Commentaries on the Constitution of the United States § 789 (1833) (concluding that "[t]he sense, in which [civil] is used in the Constitution, seems to be in contradistinction to military, to indicate the rights and duties relating to citizens generally, in contradistinction to those of persons engaged in the land or naval service of the government").
  24. See U.S. Const. art. III, § 3 (Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.); 18 U.S.C. § 201 (bribery of public officials and witnesses). See also Act of April 30, 1790 § 21, 1 Stat. 112 (1845) (establishing bribery as a federal criminal offense).
  25. See Charles Black, Impeachment 27 (1974).
  26. The Federalist No. 65 (Alexander Hamilton) (Clinton Rossiter ed., 1961); Peter Hoffer & N.E.H. Hull, Impeachment in America, 1635–1805 59–95 (1984).
  27. See Nixon, 506 U.S. at 237–38 (1993) (ruling that a challenge to the Senate's use of a trial committee to take evidence posed a nonjusticiable political question).
  28. II Joseph Story, Commentaries on the Constitution of the United States § 795 (1833) ("Again, there are many offences, purely political, which have been held to be within the reach of parliamentary impeachments, not one of which is in the slightest manner alluded to in our statute book. And, indeed, political offences are of so various and complex a character, so utterly incapable of being defined, or classified, that the task of positive legislation would be impracticable, if it were not almost absurd to attempt it."); Id. at § 798 ("In examining the parliamentary history of impeachments, it will be found, that many offences, not easily definable by law, and many of a purely political character, have been deemed high crimes and misdemeanours worthy of this extraordinary remedy.").
  29. See Cong. Globe, 40th Cong., 2d Sess. 1400 (1868) (impeaching President Andrew Johnson for violating the Tenure of Office Act); 132 Cong. Rec. H4710–22 (daily ed. July 22, 1986) (impeaching Judge Harry E. Claiborne for providing false information on federal income tax forms); 156 Cong. Rec. 3155–57 (2010) (impeaching Judge G. Thomas Porteous for engaging in a corrupt relationship with bail bondmen where he received things of value in return for helping bondsman develop relationships with state judges).
  30. For more on the historical background of the impeachment clauses, ArtIII.S1.2.1.2 Good Behavior Clause: Historical Background Good Behavior Clause: Historical Background; ArtI.S2.C5.1.2 The Power of Impeachment: Historical Background The Power of Impeachment: Historical Background; ArtI.S3.C6.1.2 The Power to Try Impeachments: Historical Background The Power to Try Impeachments: Historical Background.
  31. See The Federalist No. 65 (Alexander Hamilton) (Clinton Rossiter ed., 1961); Raoul Berger, Impeachment: The Constitutional Problems 54 (1973); H. Comm. on the Judiciary, 93d Cong., Constitutional Grounds for Presidential Impeachment 4 (Comm. Print 1974) [hereinafter Constitutional Grounds].
  32. Berger, supra, at 59; Constitutional Grounds, supra, at 4. The availability of impeachment in England appears to have depended on whether the offense endangered the government or society. See Peter Hoffer & N.E.H. Hull, Impeachment in America, 1635–1805 3 (1984).
  33. Constitutional Grounds, supra note 31, at 4–5.
  34. Id. (citing John Rushworth, The Tryal of Thomas Earl of Staffordin 8 Historical Collections 8 (1686)).
  35. Id. at 4–6.
  36. Berger, supra note 31, at 67.
  37. See Hoffer & Hull, supra note 32, at 15–26.
  38. See id. at 68–95; see, e.g., Mass. Const. of 1780 § 2, art. VIII; § 3, art. VI; New York Const. of 1777 art. XXXIII.
  39. See Gordon S. Wood, The Creation of the American Republic 141 (1969); see, e.g., N.Y. Const. of 1777 arts. XXXII–XXXIII (providing that impeachments be tried before a court composed of Senators, judges of the Supreme Court, and the chancellor).
  40. See Michael J. Gerhardt, Putting the Law of Impeachment in Perspective, 43 St. Louis U. L.J. 905, 908–12 (1999).
  41. 15 The American and English Encyclopedia of Law 1061, 1064 (David S. Garland & Lucius P. McGehee eds., 1900).
  42. Id. at 1066 (David S. Garland & Lucius P. McGehee eds., 1900). Further, the English House of Lords could convict on a bare majority, while the Framers required a two-thirds vote of the Senate to remove an officer. Id. at 1071. The House of Lords could also require any punishment upon conviction, while the federal Constitution limits the results of impeachment to removal from office and, potentially, disqualification from holding federal office in the future. Id. at 1072. Finally, British judges could be removed for a variety of reasons, while impeachment is the sole remedy to remove federal judges under the Constitution.
  43. 15 The American and English Encyclopedia of Law, supra note 41, at 1071–72.
  44. See U.S. Const. art. II, § 2, cl. 1 (providing that the President shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment).
  45. 2 James Madison, The Debates in the Federal Convention of 1787 Which Framed the Constitution of the United States of America 508 (Gaillard Hunt & James Brown Scott eds., 1987).
  46. 2 The Records of the Federal Convention of 1787, at 550 (Max Farrand ed., 1911); see Michael J. Gerhardt, The Constitutional Limits to Impeachment and Its Alternatives, 68 Tex. L. Rev. 1, 14–15 (1989).
  47. Gerhardt, Constitutional Limits, supra note 46, at 29; Constitutional Grounds, supra note 31, at 11; Charles Black, Impeachment 29 (1974).
  48. 2 Records of the Federal Convention of 1787, supra note 46, at 550; Black, supra note 47, at 29–30.
  49. 2 Records of the Federal Convention of 1787, note 46, at 64–65; Black, supra note 47, at 28.
  50. Black, supra note 47, at 30.
  51. Constitutional Grounds, supra note 31, at 7; Hoffer & Hull, supra note 32, at 113–15.
  52. Constitutional Grounds, supra note 31, at 7; Hoffer & Hull, supra note 32, at 113–15.
  53. 2 The Records of the Federal Convention of 1787, note 46, at 550.
  54. Id.
  55. See supra ArtII.S4.2.2 Impeachable Offenses: Historical Background Impeachable Offenses: Historical Background and accompanying notes.
  56. See The Federalist No. 65 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
  57. Id.
  58. U.S. Const. art. II, § 2, cl. 2.
  59. Id. art. III, § 1.
  60. See The Federalist No. 66 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
  61. See Id. No. 81.
  62. See Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 19 (2000).
  63. 4 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 113 (Jonathan Elliot ed., 1827) [hereinafter Elliot's Debates] (North Carolina, statement of James Iredell).
  64. Id. at 127.
  65. Id. at 126.
  66. Id. See Gerhardt, supra note 62, at 19.
  67. See id.
  68. 1 Elliot's Debates, supra note 63, at 500.
  69. id. at 401.
  70. David Robertson, Debates and Other Proceedings of the Convention of Virginia 345 (2d ed. 1805).
  71. James Wilson, Lectures on Lawreprinted in, 1 The Works of James Wilson 426 (Robert Green McCloskey ed., 1967).
  72. Id. at 408.
  73. Id.
  74. Gary L. McDowell, High Crimes and Misdemeanors: Recovering the Intentions of the Founders, 67 Geo. Wash. L. Rev. 626, 638 (1999); Berger, supra note 31, at 59–61.
  75. The Federalist No. 65 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
  76. Id.
  77. Compare H.R. Rep. No. 105-830, at 110–18 (1998) (majority views), with id. at 204 (minority views). See Gary L. McDowell, High Crimes and Misdemeanors: Recovering the Intentions of the Founders, 67 Geo. Wash. L. Rev. 626, 627 (1999); Laurence H. Tribe, Defining High Crimes and Misdemeanors: Basic Principles, 67 Geo. Wash. L. Rev. 712, 717 (1999).
  78. Revised Statutes of the United States, 2d Edition, Title XIII, Ch. 2 § 551 (1878); Emily F.V. Tassel & Paul Finkelman, Impeachable Offenses: A Documentary History from 1787 to the Present 123–24 (1999).
  79. Eleanore Bushnell, Crimes, Follies, and Misfortunes: The Federal Impeachment Trials 191 (1992).
  80. 39 Cong. Rec. 248 (1905).
  81. Bushnell, supra note 79, at 191–92.
  82. Id. at 191–93.
  83. Tassel & Finkelman, supra note 78, at 123–25.
  84. 39 Cong. Rec. 3467–72 (1905).
  85. Tassel & Finkelman, supra note 78, at 132.
  86. 48 Cong. Rec. 8904–34 (1912).
  87. Tassel & Finkelman, supra note 78, at 133.
  88. Id. at 134.
  89. 49 Cong. Rec. 1438–48 (1913).
  90. Bushnell, supra note 79, at 221.
  91. See The Teapot Dome Scandal, 1922–24in Congress Investigates: A Critical and Documentary History 460–74 (Roger A. Bruns, David L. Hostetter, Raymond W. Smock, eds., 2011).
  92. See McGrain v. Daugherty, 273 U.S. 135, 174–75 (1927) (We are of opinion that the power of inquiry-with process to enforce it-is an essential and appropriate auxiliary to the legislative function.); Sinclair v. United States, 279 U.S. 263, 295 (1929) (observing that Congress has authority to require disclosures in aid of its constitutional powers).
  93. 6 Clarence Cannon, Cannon's Precedents of the House of Representatives of the United States § 536–38 (1936) [hereinafter Cannon].
  94. See 62 Cong. Rec. 12,381 (1922); Charges of Hon. Oscar E. Keller Against the Attorney General and the Attorney General's Answers Thereto Before the Committee on the Judiciary, House of Representatives, 67th Cong., 3d Sess., on H. Res. 425 (1922).
  95. S. Res. 157, 68th Cong., 1st Sess. (1924); Hearings Before the Select Committee on Investigation of the Attorney General, United States Senate, Investigation of Hon. Harry M. Daugherty, Formerly Attorney General of the United States, 68th Cong., 1st Sess. (1924).
  96. See The Teapot Dome Scandal, 1922–24in Congress Investigates: A Critical and Documentary History 460–74 (Roger A. Bruns, David L. Hostetter, Raymond W. Smock, eds., 2011).
  97. 67 Cong. Rec. 6705–55 (1926); 6 Cannon, supra note 93, at §§ 544–47.
  98. Tassel & Finkelman, supra note 78, at 144–46.
  99. 76 Cong. Rec. 4913–26 (1933); 6 Cannon, supra note 93, at §§ 514–24.
  100. Bushnell, supra note 79, at 191.
  101. Id. at 246.
  102. Id. at 245.
  103. 77 Cong. Rec. 4064–88 (1933).
  104. 80 Cong. Rec. 3066–92 (1936); Tassel & Finkelman, supra note 78, at 157.
  105. 80 Cong. Rec. 5602–08 (1936); Proceedings of the U.S. Senate in the Trial of Impeachment of Halsted L. Ritter, United States District Judge for the Southern District of Florida, 74th Cong., 2d Sess., S. Doc. No. 74–200, at 637–38 (1936); Tassel & Finkelman, supra note 78, at 158–59.
  106. Ritter v. United States, 84 Ct. Cl. 293, 296 (1936), cert. denied, 300 U.S. 668 (1937).
  107. Bushnell, supra note 1, at 286–87.
  108. Ritter v. United States, 84 Ct. Cl. 293, 296 (1936), cert. denied, 300 U.S. 668 (1937).

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