The Senate's Impeachment Role
The United States Constitution provides that the House of
Representatives "shall have the sole Power of Impeachment" (
Article I, section 2
) and that "the Senate shall have the sole Power to try all
Impeachments…[but] no person shall be convicted
without the Concurrence of two-thirds of the Members
present" (
Article I, section 3
). The president, vice president, and all civil officers of
the United States are subject to impeachment.
The concept of impeachment originated in England and was
adopted by many of the American colonial governments and
state constitutions. As adopted by the framers, this
congressional power is a fundamental component of the
constitutional system of “checks and balances.” Through the
impeachment process, Congress charges and then tries an
official of the federal government for “Treason, Bribery, or
other high Crimes and Misdemeanors.” The definition of “high
Crimes and Misdemeanors” was not specified in the
Constitution and has long been subject to debate.
In impeachment proceedings, the House of Representatives
charges an official of the federal government by approving,
by majority vote, articles of impeachment. A committee of
representatives, called “managers,” acts as prosecutors before
the Senate. The Senate sits as a High Court of Impeachment
in which senators consider evidence, hear witnesses, and
vote to acquit or convict the impeached official. In the
case of presidential impeachment trials, the chief justice
of the United States presides. The Constitution requires a
two-thirds vote of the Senate to convict, and the penalty
for an impeached official upon conviction is removal from
office. In some cases, the Senate has also disqualified such
officials from holding public offices in the future. There
is no appeal. Since 1789, about half of Senate impeachment
trials have resulted in conviction and removal from office.
Historical Development
In
The Federalist
, No. 65, Alexander Hamilton wrote that impeachment is "a
method of national inquest into the conduct of public men"
accused of violating the “public trust.” Hamilton and his
colleagues at the Constitutional Convention knew that the
history of impeachment as a constitutional process dated
from 14th-century England, when the fledgling Parliament
sought to make the king's advisers accountable. By the
mid-15th century, impeachment had fallen into disuse in
England, but in the early 17th century, the excesses of the
English kings prompted Parliament to revive its impeachment
power. Even as the Constitution's framers toiled in
Philadelphia in 1787, the impeachment trial of British
official Warren Hastings was in progress in London and
avidly followed in America. Hastings, who was eventually
acquitted, was charged with oppression, bribery, and fraud
as colonial administrator and first governor-general in
India
The American colonial governments and early state
constitutions followed the British pattern of trial before
the upper legislative body on charges brought by the lower
house. Despite these precedents, a major controversy arose
at the Constitutional Convention about whether the Senate
should act as the court of impeachment. Opposing that role
for the Senate, James Madison and Charles Cotesworth
Pinckney asserted that it would make the president too
dependent on the legislative branch. They suggested, as
alternative trial bodies, the Supreme Court or the chief
justices of the state supreme courts. Hamilton and others
argued, however, that such bodies would be too small and
susceptible to corruption. In the end, after much wrangling,
the framers selected the Senate as the trial forum. To
Hamilton fell the task of explaining the convention's
decision. In The Federalist
, No. 65, he argued:
The Convention thought the
Senate the most fit depository of this important trust.
Where else than in the Senate could have been found a
tribunal sufficiently dignified, or sufficiently
independent? What other body would be likely to feel
confidence enough in its own situation, to preserve unawed
and uninfluenced the necessary impartiality between an
individual accused, and the representatives of the people,
his accusers?
There was also considerable debate at the convention in
Philadelphia over the definition of impeachable crimes. In
the early proposals, the president and other officials could
be removed on impeachment and conviction for "corrupt
conduct," or for "malpractice or neglect of
duty." Later, the wording was changed to "treason,
bribery, or corruption," and then to "treason or
bribery" alone. Contending that "treason or
bribery" was too narrow a definition, George Mason
proposed adding "mal-administration" but switched to
"other high crimes and misdemeanors against the
state" when Madison commented that
"mal-administration" was too broad. A final revision
defined impeachable offenses as "treason, bribery or
other high crimes and misdemeanors."
While the framers very clearly envisaged the occasional
necessity of initiating impeachment proceedings, they put in
place only a very general framework to guide future action.
Perhaps most important, they did not clearly define what
they meant by “high crimes and misdemeanors.” Nevertheless,
the framers reshaped a tool the English Parliament used to
curb kings and punish placemen into a powerful legislative
check upon executive and judicial wrongdoing. In the
American version of impeachment, the power of the English
House of Commons to impeach anyone, for almost any alleged
offense, was restrained, and the threat of death upon
conviction was lifted. In the United States, impeachment
reflected English tradition and precedent, while
incorporating compromises insisted upon by the framers of
the Constitution..
Since 1789, one principal question has persisted—how to define
“high crimes and misdemeanors.” This question has been debated
by members of Congress, defense attorneys, and legal
scholars from the first impeachment trial to the most
recent. Were misdemeanors lesser crimes, or merely
misconducts? Did a high crime or misdemeanor have to be a
violation of written law? In an unsuccessful attempt to
impeach Supreme Court Justice William O. Douglas in 1970,
Representative Gerald Ford declared: "An impeachable offense
is whatever a majority of the House of Representatives
considers it to be at a given moment in history." This
constitutional phrase remains a subject of continuing
debate, pitting those who view impeachment as a response to
an official’s perceived violation of the public trust against
those who regard impeachment as being limited to indictable
offenses.
Influential Impeachment Cases
The bitter animosities growing out of the Civil War gave
rise to the first impeachment trial of a United States
president,
that of President Andrew Johnson in 1868
. When Johnson succeeded to the presidency in 1865,
following the assassination of Abraham Lincoln, his ideas
for a lenient Reconstruction of the Southern states clashed
with the wishes of a majority of the Congress, controlled by
Radical Republicans who favored much stronger action. Over
the next three years, Johnson and Congress were locked in
battle.
The Tenure of Office Act, violation of which was to be the
legal basis for impeachment, was passed over Johnson's veto
on March 2, 1867. It forbade the president to remove civil
officers appointed with the consent of the Senate without
the approval of the Senate. Despite the certain
consequences, Johnson decided to remove Secretary of War
Edwin Stanton, an ally of the Radical Republicans. This act
enraged Johnson’s political enemies and set in motion the
first presidential impeachment.
Johnson's Senate trial began on March 5, 1868, operating
under
newly revised rules
and procedures. On May 16, after weeks of tense and dramatic proceedings, the Senate
took a test vote on Article XI, a catch-all charge thought
by the House managers most likely to achieve a conviction.
The drama of the vote has become legendary. With 36 votes
for “guilty” needed to constitute a two-thirds majority for
conviction, the roll call produced 35 votes for “guilty” and
19 votes for “not guilty.” Seven Republicans, known as the
“Republican Recusants,” joined the 12 Democrats in supporting
Johnson. Ten days later, a vote on two more articles
produced the same results. To head off further defeats, the
Radical Republicans moved to adjourn the trial sine die
, abruptly ending the impeachment trial of President Andrew
Johnson. The president was saved from removal, and the
independence of the executive was strengthened.
Another influential impeachment trial came in 1905, when
Florida District Judge Charles Swayne was impeached for
filing false travel vouchers, improper use of private
railroad cars, unlawfully imprisoning two attorneys for
contempt, and living outside of his district. Swayne's trial
consumed nearly three months of the Senate schedule before
it ended on February 27, 1905, when the Senate voted to
acquit. There was little doubt that Swayne was guilty of
some of the offenses charged against him. Indeed, his
counsel admitted as much, and called the lapses
"inadvertent." The Senate refused to convict Swayne,
however, because many senators did not believe his offenses
amounted to "high crimes and misdemeanors." During this long
trial, it was suggested that a Senate committee, rather than
the Senate as a whole, should hear impeachment evidence, and
Senator George F. Hoar of Massachusetts proposed that the
presiding officer appoint such a committee. While
Hoar's proposal
would eventually be embodied in Rule XI of the
Senate's impeachment rules
, in 1905 the resolution was referred to the Rules
Committee, which took no action.
The next impeachment trial was that of Judge Robert Archbald
of the Commerce Court. In 1913 Archbald was charged with
serious acts of misconduct stretching over many years,
including using his office to obtain advantageous business
deals and free trips to Europe. As in the Swayne case, none
of the articles of impeachment charged an indictable
offense. Yet, apparently because of the seriousness and
extent of the charges, the Senate convicted Archbald. At the
conclusion of the trial, the suggestion of an impeachment
committee surfaced once again. Archbald’s defense attorney
argued that many senators were not in attendance when
evidence was taken before the full Senate, relying instead
on testimony printed in the Congressional Record
, and recommended the use of a committee to hear evidence in
future trials.
In 1933 the House Judiciary Committee recommended censure,
rather than impeachment, for federal judge Harold Louderback
of California. A minority of the committee, however, took
the issue to the floor of the House where they persuaded
that body to adopt five articles of impeachment, charging
Louderback with conspiracy, abuse of power, showing
favoritism, and bringing “the court of which he is a judge
unto disrepute.” Louderback's Senate trial consumed nearly
all of May 1933, during the First Hundred Days of the New
Deal era, one of the busiest legislative periods in
congressional history. Democrats charged Republicans with
using the trial to delay a banking reform bill, a charge
Republicans denied. Tempers in the Senate frayed as witness
after witness cast doubt on the charges. The Senate finally
voted on May 24, 1933, acquitting Louderback on all five
articles.
The Louderback trial again brought to the fore the problem
of attendance at impeachment trials in the midst of a busy
legislative calendar. After the trial, Representative Hatton
Sumners of Texas, one of the House managers, recalled the
scanty attendance: "At one time only three senators were
present, and for ten days we presented evidence to what was
practically an empty chamber." In 1934 Senator Henry Ashurst
of Arizona, chairman of the Judiciary Committee, offered
the resolution that became Rule XI
after its adoption the following year. Rule XI provided:
That in the trial of any
impeachment the Presiding Officer of the Senate, if the
Senate so orders, shall appoint a committee of senators to
receive evidence and take testimony at such times and places
as the committee may determine…
Rule XI was not used in the next impeachment trial, that of
Florida district judge Halsted Ritter in 1936. Ritter was
charged with a wide range of improprieties and misconduct
that included practicing law while serving as a judge,
filing false income tax returns, and extortion. Ritter's
counsel argued that the judge had committed no offense that
could be labeled a high crime or misdemeanor and was guilty
only of exercising "poor judgment." In fact, Ritter was
found "not guilty" by narrow margins on six of seven
articles of impeachment, but on the seventh article he was
found guilty, by exactly the required two-thirds vote. The
Senate was putting judges “on notice that Congress would
remove them from office if the sum total of their conduct
was regarded as showing unfitness for judicial office,”
commented The New York Times
, “regardless of whether a specific high crime or
misdemeanor, in the language of the Constitution, could be
established under ordinary rules of evidence.” (“Judge Ritter
Convicted by Senate,” April 18, 1936)
During the summer of 1974, in the wake of the Watergate
scandal, the Senate prepared for the possibility of a second
presidential impeachment trial, as the House of
Representatives moved ever closer to impeaching President
Richard Nixon. In July the Senate adopted a resolution
directing the Senate Committee on Rules and Administration
to review the existing impeachment rules and precedents and
recommend revisions. The committee, aided by
Senate parliamentarian Floyd Riddick
, devoted long hours to the Senate’s constitutional role in
impeachment proceedings. The committee was meeting on August
8, 1974, when President Nixon announced that he would
resign. Despite this unprecedented event, the panel
continued with its work under a mandate from the Senate to
file a report by September 1.
The report
contained recommendations that were primarily technical
changes in the rules that had been adopted in 1868 for the
impeachment trial of Andrew Johnson. With the resignation of
President Nixon, no further action was taken.
The committee’s recommendations were
revised in 1986
, however, and informed the debates on how to conduct the
trials of three federal judges between 1986 and 1989. The
impeachment of Harry E. Claiborne in 1986 finally put into
action Rule XI, and the Senate established a special trial
committee to hear evidence and report to the full Senate.
Likewise, Senate trial committees considered evidence in the
cases of Alcee Hastings (1989), Walter Nixon, Jr. (1989),
and G. Thomas Porteous, Jr. (2010), all of whom were
convicted and removed from office. Nixon challenged the use
of an impeachment committee on constitutional grounds. In
1993, in the case
Nixon v. United States
, the Supreme Court upheld the Senate’s right to determine
its own procedures, including the use of a trial committee.
Senate Impeachment Trials
| Name | Position | Date of Final Senate Action | Result |
|
William Blount
|
Senator
|
17990111Jan 11, 1799
|
Expelled, charges dismissed
|
|
John Pickering
|
Judge
|
18040312Mar 12, 1804
|
Guilty, removed from office
|
|
Samuel Chase
|
Justice
|
18050301Mar 1, 1805
|
Not guilty
|
|
James H. Peck
|
Judge
|
18310131Jan 31, 1831
|
Not guilty
|
|
West H. Humphreys
|
Judge
|
18620126Jun 26, 1862
|
Guilty
|
|
Andrew Johnson
|
President
|
18680515May 15/26, 1868
|
Not guilty
|
|
Mark H. Delahay
|
Judge
|
18730228Feb 28, 18731
|
Resigned
|
|
William Belknap
|
Secretary of War
|
18760801Aug 1, 1876
|
Not guilty
|
|
Charles Swayne
|
Judge
|
19050227Feb 27, 1905
|
Not guilty
|
|
Robert Archbald
|
Judge
|
19130113Jan 13, 1913
|
Guilty, removed
|
|
George W. English
|
Judge
|
19261213Dec 13, 1926
|
Resigned, charges dismissed
|
|
Harold Louderback
|
Judge
|
19330524May 24, 1933
|
Not guilty
|
|
Halstead Ritter
|
Judge
|
19360417Apr 17, 1936
|
Guilty, removed from office
|
|
Harry E. Claiborne
|
Judge
|
19861009Oct 9, 1986
|
Guilty, removed from office
|
|
Alcee Hastings
|
Judge
|
19891020Oct 20, 1989
|
Guilty, removed from office
|
|
Walter Nixon
|
Judge
|
19891103Nov 3, 1989
|
Guilty, removed from office
|
|
William J. Clinton
|
President
|
19990212Feb 12, 1999
|
Not guilty
|
|
Samuel B. Kent
|
Judge
|
20090722Jul 22, 2009
|
Resigned, case dismissed
|
|
G. Thomas Porteous, Jr.
|
Judge
|
20101208Dec 8, 2010
|
Guilty, removed from office
|
|
Donald J. Trump
|
President
|
20200204Feb 5, 2020
|
Not guilty
|
