Article II, Section 4: Impeachment

The Constitution stipulates that only Congress has the authority to remove the president, vice president, and "all Civil Officers" from office. Although this power appears clear-cut, it prompts complex inquiries regarding the specific individuals Congress can impeach and the actions that qualify as impeachable offenses.

The House of Representatives begins the process by filing articles of impeachment. If two-thirds of the Senate votes to convict the official, Congress will remove them from office.

The Framers included the Impeachment Clause in the Constitution, so Congress had a check on the executive branch. Impeachment is a unique political and legal process. Unsurprisingly, it makes headlines when the legislature uses it. 

This article describes the impeachment process in-depth. It begins with the constitutional basis and general overview of the power. Then, it describes who is subject to impeachment and the offenses for which Congress can impeach someone. It then provides examples of presidential impeachments. It concludes with the impact and importance of the Impeachment Clause in American society.

Constitutional Basis of the Impeachment Clause

Article II, Section 4 provides the following:

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.

Article I of the U.S. Constitution enumerates Congress's powers. Congress consists of the House of Representatives and the Senate. Article I, Section 2 states that Congress "shall have the sole Power of Impeachment." Additionally, Article I, Section 3, spells out the limits of impeachment as follows:

• Clause 7 states that the Senate has the sole power to hold impeachment trials. "Two thirds of the Members present" must vote to convict the person on trial.
• Clause 8 states that impeachment only removes the official from office. It also acts as a "disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States." However, the impeached person may face criminal indictment, trial, and punishment after removal.

The following section provides general information about impeachment. The "Impeachable Offenses" section describes actions that allow Congress to impeach someone.

Impeachment Explained

Impeachment is vital for the federal government's structure and separation of powers. It acts as the legislative branch's check on the executive and judicial branches. It provides Congress with a method to hold certain government officials accountable for abuses of power.

The Impeachment Process

The Constitution gives the House the sole power to decide whether to impeach the president, vice president, or other "Civil Officers." The House is the only governmental body that can call a vote to impeach an executive or judicial officer.

Assuming the House votes to impeach, the Senate holds an impeachment trial. The chief justice of the Supreme Court (as opposed to the vice president) presides over the trial.

During the trial, the Senate reviews evidence and hears testimony from witnesses. The Senate then votes on whether to convict the impeached official. If two-thirds of the Senate votes to convict, it will remove the official from their position.

The Senate's decision to convict the official is final. In other words, no other governmental body, including Article III courts, may review the Senate's decision.

Note that Article I, Section 3, Clause 8 provides that an impeachment and conviction only remove the official from their position. They do not subject the official to arrest, trial, or imprisonment. However, the government may arrest the official following the Senate's conviction.

However, the Constitution provides little guidance on who is subject to impeachment and what actions constitute impeachable offenses. The following sections describe how the federal government has determined these issues.

Interpretation

Article III of the Constitution spells out the judicial branch's powers and limits. The judiciary has played a minor role in interpreting the Impeachment Clause. Instead, Congress has fleshed out its limits through the impeachment process itself.

The impeachment clause generally raises two questions:

• Who exactly can Congress impeach?
• What offenses constitute impeachable offenses?

The following sections describe how Congress has interpreted these questions.

Who Can Congress Impeach?

The Constitution clearly states that the president and vice president are impeachable. It also notes that "all Civil Officers" are subject to impeachment. However, it does not define "Civil Officers." This raises the question of who precisely qualifies as a civil officer.

Today, it appears that the following officials are subject to impeachment and removal:

• The President
• The Vice President
• Executive Officers
• Judicial Officers

Historical evidence provides little information about who is impeachable. James Madison took extensive notes during the Constitutional Convention. However, his notes do not shed light on who exactly is impeachable.

Additionally, The Federalist Papers do not specify which civil officers are impeachable. Federalist Papers No. 66, 79, and 81 collectively state that impeachment is Congress' check on the executive and judicial branches. They do not, however, specify who qualifies as a civil officer.

Congress's use of impeachment indicates that it may impeach and remove federal judges from their positions. This power also applies to executive officers, like cabinet-level officials (e.g., the Secretary of Defense).

History also shows that members of Congress are not impeachable. As the Library of Congress notes, the Constitution states that the president commissions officers of the United States. Voters elect members of Congress, and, therefore, the president does not commission them.

The Constitution's structure also indicates that members of the House or Senate are not impeachable. It provides a specific method by which Congress may "expel" members. Moreover, the Constitution prohibits any person "holding any office under the United States" from serving in Congress. Thus, members of Congress are not "officers" under the Constitution.

Finally, the Senate has determined that members of Congress are not subject to impeachment and removal. In 1797, the House held its first federal impeachment vote regarding Senator William Blount. The Senate concluded that Blount was not a "civil officer subject to impeachment." It dismissed the articles of impeachment due to a lack of jurisdiction. Since then, the House has never voted to impeach a member of Congress.

Impeachable Offenses

As the Constitution states, Congress may impeach executive or judicial officers for the following offenses:

• Treason
• Bribery
• "High Crimes and Misdemeanors"

Treason and bribery are relatively straightforward. Article III, Section 3, Clause 1 defines treason as follows:

• Levying war against the United States
• Giving an enemy "Aid and Comfort"

Bribery is an offer of value in exchange for a public official taking action using their powers. For example, Congress could likely impeach a public official in the following circumstances:

• If an individual offers a federal judge money to influence a decision in a case, and the judge accepts it.
• If the vice president were offered a car to influence their tie-breaking vote in a deadlocked Senate and they accepted the offer, it would constitute a violation of executive branch gift rules.
• If the President of the United States accepted cash in exchange for signing (or vetoing) proposed legislation.

However, the term "high Crimes and Misdemeanors" is not so easily defined.

High Crimes and Misdemeanors Explained

The area where the majority of debate and room for interpretation arises is what actions amount to "high Crimes or Misdemeanors." Neither the law nor the Constitution specifically defines this term. Instead, Congress has defined it through its impeachment precedents.

There is little debate regarding the core of the "high Crimes and Misdemeanors" term. Generally, Congress can impeach an executive officer if they commit an ordinary crime. In other words, if an executive officer commits a crime that would subject any person to arrest, Congress can impeach and remove them from office.

For example, if a president robbed a gas station, Congress could impeach and remove them from office. If a federal judge murdered someone, Congress could impeach and remove them from the bench.

As scholars Michael Stokes Paulsen and Luke Paulsen note, the term "high Crimes and Misdemeanors" is "a broad term that gives the House substantial discretion to decide what kind of misconduct is sufficiently important to justify removing a person from office." (The Constitution: An Introduction (2015)).

As noted above, the judiciary has generally not opined on the impeachment clauses and what constitutes impeachable offenses. Instead, Congress's impeachment proceedings provide guidance as to what constitutes "high Crimes and Misdemeanors."

Impeachment for Non-Criminal Conduct

An impeachment inquiry in 1912 clarified that non-criminal conduct could constitute impeachable behavior.

As the Library of Congress notes, Judge Robert W. Archbald was a federal judge. The president eventually appointed him to the U.S. Commerce Court.

The House impeached Judge Archbald in 1912. The House alleged he was generating "profitable business deals with potential future litigants in his court."

Judge Archbald's conduct "did not violate any criminal statute and did not appear to violate any laws regulating judges." During the Senate trial, Judge Archbald argued that his conduct was not impeachable because it was not criminal.

Nonetheless, the Senate convicted Judge Archbald on five articles of impeachment. Four articles dealt with his behavior while he sat on the Commerce Court, and another dealt with his conduct over his career as a judge. The Senate also barred him from holding future office.

The following section about presidential impeachments provides further information about the extent of "high Crimes and Misdemeanors."

Presidential Impeachment Cases

In early American history, Congress began shaping the extent of the impeachment clause and what conduct could constitute impeachable behavior. However, beginning with the impeachment inquiry into President Richard Nixon in the 1970s, Congress further developed the impeachment clause.

For more information about the following cases of impeachment, read FindLaw's article on Presidential Impeachment Cases.

Andrew Johnson

Andrew Johnson assumed the presidency in 1865 after President Abraham Lincoln was assassinated. In 1868, Congress filed 11 articles of impeachment against Johnson.

Among the reasons for Johnson's impeachment was his decision to disregard the Tenure of Office Act. The Act prevented him from firing cabinet members without congressional authorization and its recognition of a successor. Johnson fired his Secretary of War, Edwin Stanton, in violation of the Act.

The House impeached Johnson, and the Senate fell one vote short of convicting him. Johnson ultimately served the rest of his term.

Richard Nixon

The Watergate Scandal involved five men who broke into the Democratic National Party's headquarters at the Watergate Hotel in Washington, D.C. Law enforcement arrested them on June 17, 1972.

During their investigations, the FBI and two Washington Post journalists discovered connections between the burglars and President Richard Nixon.

In 1974, the House began investigating President Richard Nixon's role in it. It was ultimately revealed that Nixon and his staff attempted to cover up the break-in, and the burglars were associated with Nixon's reelection campaign.

The House Judiciary Committee drafted three articles of impeachment against Nixon:

• Obstruction of justice
• Abuse of power
• Contempt of Congress

He ultimately resigned before the House voted to impeach him. His vice president, Gerald Ford, assumed the presidency. He eventually granted Nixon a pardon for any criminal offenses related to Watergate.

Bill Clinton

In 1998, the House impeached President Bill Clinton due to perjury and obstruction of justice. The articles of impeachment stemmed from two separate incidents:

• The article of impeachment related to grand jury perjury resulted from Paula Jones's lawsuit against Clinton, alleging he sexually harassed her when he was Governor of Arkansas.
• The obstruction of justice charge related to Clinton's cover-up of an affair with White House intern Monica Lewinsky.

The House impeached Clinton on December 19, 1998. However, the Senate acquitted him of both counts. He served the remainder of his term.

After he left office, a federal judge found Clinton in contempt of court for lying during a deposition. The court forced Clinton to forfeit his law license.

Donald Trump

President Donald Trump was the first president that Congress impeached twice. Nevertheless, the Senate did not convict him on either occasion.

The first impeachment related to his communications with Ukrainian President Volodymyr Zelenskyy regarding a quid pro quo and potential interference with the 2020 presidential election. It also related to an allegation of obstruction of justice that hindered the House's investigation of the communications.

In 2019, the House filed two articles of impeachment against Donald Trump. The votes passed, and the Senate held a trial. The Senate failed to reach a two-thirds majority to convict him on either count.

Trump lost the 2020 presidential election to Joe Biden. Trump immediately discredited the election. He suggested that widespread voter fraud and rigged election machines led to his defeat.

On January 6, 2021, Congress convened to count the Electoral College's votes. That same day, Trump supporters put together a rally outside the Capitol. Trump addressed the crowd and told them to "fight like hell" to save America.

Soon after, approximately 2,000 people swarmed the Capitol. Supports eventually made it into the Capitol and disrupted Congress's activities. Five people were killed, including one Capital police officer.

On January 11, 2021, the House introduced articles of impeachment against Trump, alleging that he incited an insurrection. The House impeached him on January 13, 2021.

By the time the Senate held a trial regarding the impeachment, Trump was no longer president. Nonetheless, the Senate fell 10 votes short of the two-thirds majority needed for conviction.

Impact and Importance of the Impeachment Clause

Throughout most of American history, Congress has generally wielded the impeachment power with restraint. As noted above, Congress has only successfully impeached three presidents, and the Senate has never convicted a president.

However, with increasing political polarization in the United States, Congress has used impeachment more liberally in the past decade than it ever has. Experts suggest that this recent use of impeachment has led to its weaponization.

The politicization of the impeachment power is not "new." As scholars note, President Johnson's impeachment may have been less about his open disregard for the Tenure of Office Act and more due to his poor performance in office. (Paulsen and Paulsen, The Constitution: An Introduction (2015)). 

However, after Johnson's impeachment in 1865, Congress did not impeach a president for over 100 years. Over twenty years passed between the 1974 impeachment inquiry into Nixon and Clinton's impeachment in 1998. Twenty more years passed between Clinton's impeachment and Trump's first impeachment in 2019. 

In 2024, House Republicans have considered filing articles of impeachment against President Biden. If the House approves the articles of impeachment against Biden, it would be the third impeachment since 2019.

Additionally, in March 2024, the House impeached Secretary of Homeland Security Alejandro Mayorkas. This is just the second time Congress has impeached an executive officer. The Senate killed the articles of impeachment before it conducted a trial. 

Simply from a numbers perspective, impeachments are on the rise. Time will tell whether the political parties are using impeachment as another tool in their toolboxes or whether the impeachments are, in fact, justified. Either way, it does not appear that Congress will return to its reserved ways regarding the impeachment power.