Attempt to Impeach Donald Trump - Declassified Government Documents, Investigation of Russian Election Interference & Legislative Procedures for the Impeachment

Impeachment: An Overview of Constitutional Provisions, Procedure, and Practice

Background

Authority to remove the President, Vice President, and federal civil officers by impeachment has been placed, by constitutional mandate, in the hands of the legislative branch of the United States government. Although rooted in the soil of English impeachment experience, the American impeachment system differs from its English forebear in some significant respects. Recorded incidents of English impeachments may begin as early as 1376, and one source would place the first in 1283.1 A more fixed procedure appears to have begun in 1399, with the passage of the statute of I Henry IV, c. 14.2 Whichever date one chooses, it is clear that the English practice took root well before the colonial beginnings of the United States. It ceased to be used in England at about the time that it became part of the American system of government. The last two impeachments in England appear to have been those of Warren Hastings in 1787 and of Lord Melville in 1805.3 The English system permitted any person to be impeached by the House of Commons for any crime or misdemeanor, whether the alleged offender was a peer or a commoner.4

Unlike the British system, which permitted penal sanctions to attach upon conviction of impeachment,5 the American system is designed to be remedial in function. Despite surface similarities to a criminal trial, the judgments which may be rendered upon conviction of an article of impeachment in the American system are limited to removal from office and disqualification from holding further offices of public trust. Thus, the American system seems more designed to protect the public interest than to punish the person impeached. Nevertheless, much of the procedure and practice involved in this country’s application of its impeachment process draws guidance and support from British precedents.6

1 See Simpson, Jr., A., “Federal Impeachments,” 64 U. Pa. L. Rev. 651 (1916); Yankwich, L., “Impeachment of Civil Officers Under the Federal Constitution,” 26 Geo. L.J. 849 (1938), reproduced in H. COMM. ON THE JUDICIARY, 93^RD CONG., 1^ST SESS., IMPEACHMENT, SELECTED MATERIALS 689 (Comm. Print, October 1973), and in H. COMM. ON THE JUDICIARY, 105^THCONG., 2D SESS., IMPEACHMENT, SELECTED MATERIALS 1825 (Comm. Print, November 1998). Simpson, in his 1916 article, discussed the British history in considerable depth before moving into a discussion of some aspects of the Constitutional Convention’s consideration of impeachment as envisioned in what would become the American system.

2 Simpson, Jr., A., Federal Impeachment, 64 U. PA. L. REV. 651 (1916).

3 Brief of Anthony Higgins and John M. Thurston, counsel for the respondent, Judge Charles Swayne, offered in the latter’s impeachment trial on February 22, 1905, reprinted in III HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES § 2009, at 322 (1907).

4 Yankwich, supra n. 14, at 690.

5 Conviction under the British impeachment system could result in punishment by imprisonment, fine or even death. Berger, R., Impeachment for ‘High Crimes and Misdemeanors,’ 44 SO. CAL. L. REV. 395 (1971), reprinted in H. COMM. ON THE JUDICIARY, 93^RDCONG., 1^STSESS., IMPEACHMENT, SELECTED MATERIALS 617 (Comm. Print October 1973), and in H. COMM. ON THE JUDICIARY, 105^THCONG., 2D SESS., IMPEACHMENT, SELECTED MATERIALS 1825 (Comm. Print November 1998).

6 JEFFERSON’S MANUAL, published in CONSTITUTION, JEFFERSON’S MANUAL AND RULES OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES, ONE HUNDRED TENTH CONGRESS, H. Doc. No. 109-157, 109^th Cong., 2d Sess. 314-331 (2007). This may also be found at http://www.gpoaccess.gov/hrm/browse_110.html, which, in turn, may be accessed through the website of the House Rules Committee under the heading “House Rules Manual (GPO Access)” at http://www.rules.house.gov/house_rules_precedents.htm.

The Constitutional Framework

The somewhat skeletal constitutional framework for the impeachment process can be found in a number of provisions. These include the following:

A number of principles can be drawn from these provisions. Impeachment applies only to the President, the Vice President, and those other federal officials or employees who fall within the category of “civil Officers of the United States.” Impeachment will only lie where articles of impeachment are brought alleging that the individual to be impeached has engaged in conduct amounting to treason, bribery, or other high crimes and misdemeanors. The power to determine whether impeachment is appropriate in a given instance rests solely with the House of Representatives. The ultimate decisions both as to whether to impeach1 and as to what articles of impeachment should be presented to the Senate for trial rest in the hands of the House.2

The Senate also has a unique role to play in the impeachment process. It alone has the authority and responsibility to try an impeachment brought by the House. The final decision as to whether to convict on any of the articles of impeachment is one that only the Senate can make. As to each article, a conviction must rest upon a two-thirds majority vote of the Senators present. In addition, should an individual be convicted on any of the articles, the Senate must determine the appropriate judgment: either removal from office alone, or, alternatively, removal and disqualification from holding further offices of “honor, Trust or Profit under the United States.” The precedents suggest that removal flows automatically from conviction on one or more articles of impeachment,3 but if the Senate chooses to impose an additional judgment disqualifying the individual convicted from holding future federal offices, a separate vote is necessary. A simple majority vote is required on such a judgment.4 The Constitution precludes the President from extending executive clemency to anyone to preclude their impeachment by the House of Representatives or trial by the Senate.5

Conviction on impeachment does not foreclose the possibility of criminal prosecution arising out of the same factual situation. The four most recent impeachments of federal judges after the conclusion of criminal proceedings against them, including that of Judge Kent, indicate that, at least as to federal judges, the impeachment need not precede criminal proceedings arising out of the same facts. Nor does an acquittal in the criminal proceedings preclude a subsequent impeachment.

While the constitutional provisions establish the basic framework for American impeachments, they do not begin to address all of the issues which may arise during the course of a given impeachment proceeding or to answer all of the procedural questions which might become pertinent to an inquiry of this sort. To fill this void, a number of resources are available.

1 Historically, a number of circumstances are seen as having triggered or led to an impeachment investigation. See JEFFERSON’S MANUAL, supra, § 603 at 316. These have included charges made on the floor by a Member or Delegate; charges preferred by a memorial, usually referred to a committee for examination; a resolution dropped in the hopper by a Member and referred to a committee; a message from the President; charges transmitted from the legislature of a state or territory or from a grand jury; facts explored and reported by a House investigating committee; or a suggestion from the Judicial Conference of the United States, under 28 U.S.C. § 354(b), that the House may wish to consider whether impeachment of a particular federal judge would be appropriate. Prior to the expiration of the independent counsel provisions on June 30, 1999, an independent counsel, under 28 U.S.C. § 595(c), advised the House of Representatives of “substantial and credible information which such independent counsel receive[d], in carrying out the independent counsel’s responsibilities ..., that may constitute grounds for an impeachment.”

2 Precedents differ as to whether the House will choose to initiate an impeachment investigation regarding allegations of misconduct occurring prior to the federal officer’s commencing his current tenure of office. For example, in 1912, in response to H.Res. 511 (62^nd Congress), the President transmitted to the House Judiciary Committee information related to an investigation by the U.S. Department of Justice of charges of improper conduct by Judge Robert W. Archbald, which had been brought to the President’s attention by the Commissioner of the Interstate Commerce Commission. After its investigation, the House Judiciary Committee reported out a resolution impeaching Judge Archbald both for misconduct while he was in his then current position as a U.S. circuit court judge designated as a judge of the U.S. Commerce Court, and for misconduct in his previous position as a U.S. district judge. The House agreed to the resolution. Judge Archbald was tried in the Senate, convicted, removed from office, and disqualified from further federal offices.

3 This question was explored in the Senate impeachment trial of Judge Halsted Ritter, after he was convicted on the seventh article of impeachment brought against him. A colloquy arose after Senator Ashurst sent an order of judgment to the desk providing that Judge Ritter be removed from office. Based upon the language of Article II, Section 4 of the United States Constitution, the President Pro Tempore concluded that removal was automatic upon conviction in a Senate trial on one or more articles of impeachment. No vote was needed to remove the person convicted from office. 80 CONG. REC. 5607 (April 17, 1936).

4 See, e.g., vote to disqualify Judge Robert W. Archbald, 39 yeas, 35 nays, 49 CONG. REC. 1447-1448 (January 13, 1913); VI CANNON’S § 512.

5 U.S. CONST., art. II, sec. 2, cl. 1.

Judicial Decisions Related to Impeachment

While no court has challenged the authority of the Senate to try impeachments, there are decisions regarding questions raised by the impeachment trials and convictions of Judges Walter L. Nixon, Jr., and Judge Alcee Hastings.1 Compare Nixon v. United States, 506 U.S. 224 (1993), affirming, 938 F.2d 239 (D.C. Cir. 1991), affirming 744 F. Supp. 9 (D.D.C. 1990), with Hastings v. United States, 802 F. Supp. 490 (D.D.C. 1992), vacated and remanded on court’s own motion, 988 F.2d 1280 (Table Case), 1993 U.S. App. LEXIS 11592 (unpublished per curiam vacating and remanding for reconsideration in light of Nixon v. United States, supra) (1993), dismissed, 837 F. Supp. 3 (1993). In both cases, the Plaintiffs challenged the Senate’s procedure under Rule XI of the “Rules of Procedure and Practice in the Senate when Sitting on Impeachment Trials,” which provides:

Former Judge Nixon, “arguing that the Senate’s failure to give him a full evidentiary hearing before the entire Senate violated its constitutional duty to “try” all impeachments[,] ... sought a declaratory judgment that his conviction by the Senate was void and that his judicial salary and privileges should be reinstated from the date of his conviction. The district court held that his claim was nonjusticiable.” 938 F.2d at 241. The U.S. Court of Appeals for the District of Columbia Circuit agreed. Id. Judge Williams, writing for the court, determined that the constitutional language granting the Senate the “sole Power to try all impeachments” also “gives it sole discretion to choose its procedures.” Id. at 245. This “textual commitment of impeachment trials to the Senate,” coupled with the need for finality, led the court to apply the political question doctrine in determining that the issue presented by former Judge Nixon was nonjusticiable. Id.

Judge Randolph, in his concurrence, framed the question before the court as “whether the judiciary can pass upon the validity of the Senate’s procedural decisions. My conclusion that the courts have no such role to play in the impeachment process rests on my interpretation of the Constitution.” Id. at 248. His analysis seems to focus specifically upon the text of the constitutional grant to the Senate of the sole power to try impeachments and upon the framers’ intentional exclusion of the Judiciary from a role in the impeachment process, rather than upon the political question doctrine. Judge Edwards concurred in the judgment but dissented in part. He would have found former Judge Nixon’s constitutional challenge justiciable, but would find “that the Senate’s use of a special committee to hear witnesses and gather evidence did not deprive Nixon of any constitutionally protected right.” Id.

The Nixon case was decided by the Supreme Court on January 13, 1993. Nixon v. United States, 506 U.S. 224 (1993). Chief Justice Rehnquist delivered the opinion of the Court for himself and Justices Stevens, O’Connor, Scalia, Kennedy and Thomas. The Court held the issue before them to be nonjusticiable. The Chief Justice based this conclusion upon the fact that the impeachment proceedings were textually committed in the Constitution to the legislative branch. In addition, the Court found the “lack of finality and the difficulty in fashioning relief counsel[led] against justiciability.” Id. at 236. To open “the door of judicial review to the procedures used by the Senate in trying impeachments would ‘expose the political life of the country to months, or perhaps years, of chaos.’” Id., quoting the court below, 938 F.2d, at 246. The Court found that the word “try” in the Impeachment Clause did not “provide an identifiable textual limit on the authority which is committed to the Senate.” Id. at 238.

Justice Stevens, in his concurring opinion, emphasized the significance of the framers’ decision to assign the impeachment power to the legislative branch. Id. Justice White, joined by Justice Blackmun, concurred in the judgment, but found nothing in the Constitution to foreclose the Court’s consideration of the constitutional sufficiency of the Senate’s Rule XI procedure. Justices White and Blackmun, addressing the merits of the claim before the Court, were of the opinion that the Senate had fulfilled its constitutional obligation to “try” Judge Nixon. Id. at 239.

Justice Souter agreed with the majority that the case presented a nonjusticiable political question, although his reasoning was somewhat different.

The Impeachment Trial Clause commits to the Senate “the sole Power to try all Impeachments,” subject to three procedural requirements: the Senate shall be on oath or affirmation; the Chief Justice shall preside when the President is tried; and conviction shall be upon the concurrence of two-thirds of the Members present. U.S. Const., Art. I, §3, cl. 6. It seems fair to conclude that the Clause contemplates that the Senate may determine, within broad boundaries, such subsidiary issues as the procedures for receipt and consideration of evidence necessary to satisfy its duty to “try” impeachments.

Id. at 253. Justice Souter found the conclusion that the case presented a non-justiciable political question supported by the “‘the unusual need for unquestioning adherence to a political decision already made,’ [and] ‘the potentiality of embarrassment from multifarious pronouncements from various departments on one question.’” Id., quoting Baker v. Carr, 369 U.S. 186, 217 (1962). He noted, however, that

[i]f the Senate were to act in a manner seriously threatening the integrity of its results, convicting, say, upon a coin-toss, or upon a summary determination that an officer of the United States was simply a “bad guy” ... judicial interference might well be appropriated. In such circumstances, the Senate’s action might be so far beyond the scope of its constitutional authority, and the consequent impact on the Republic so great, as to merit a judicial response despite the prudential concerns that would ordinarily counsel silence.

Id. at 253-54.

In contrast to the decisions in Nixon, Judge Sporkin of the United States District Court for the District of Columbia initially ruled for the plaintiff in Hastings v. United States, 802 F. Supp. 490, 492 (D.D.C. 1992). The court there framed the question before it as follows:

The key issue in this case is whether a life-tenured Article III judge who has been acquitted of felony charges by a petit jury can thereafter be impeached and tried for essentially the same alleged indiscretion by a committee of the United States Senate consisting of less than the full Senate. This court determines that the answer is no.

Judge Sporkin determined that his court was not foreclosed from reaching a decision in the Hastings case by what might have been viewed as a controlling court of appeals decision in Nixon, because the Supreme Court had agreed to take certiorari in Nixon on issues identical to those before him. Judge Sporkin concluded that the issue before him was justiciable and, further, that the Rule XI procedure did not provide an adequate “trial” before the full Senate. Id. at 501. In particular, the court considered the taking of evidence a process which required the presence of all the Senators, so that each could judge credibility with his or her own eyes and ears.2 Judge Sporkin’s decision seems to turn upon his reading of the implications of the constitutional phrase giving the Senate the sole power to “try all Impeachments.” In light of his analysis, Judge Sporkin granted former Judge Hastings’ motion for summary judgment, ordering that the Senate impeachment conviction and judgment be vacated and that a new trial by the full Senate be afforded the plaintiff. Judge Sporkin stayed his judgment pending appeal.

After the Supreme Court’s decision in Nixon v. United States, supra, the United States Court of Appeals for the District of Columbia Circuit, on its own motion, vacated and remanded the Hastings decision for reconsideration in light of Nixon. Hastings v. United States, 988 F.2d 1280 (Table Case), 1993 U.S. App. LEXIS 11592 (unpublished per curiam) (D.C. Cir. 1993). On remand, Judge Sporkin dismissed the case. Hastings v. United States, 837 F. Supp. 3 (D.D.C. 1993). In doing so reluctantly, Judge Sporkin emphasized the factual differences between the two cases, but concluded that the Nixon decision compelled dismissal of the case before him.

1 Cf. Waggoner v. Hastings, 816 F. Supp. 716, 719 (S.D. Fla. 1993) (in case brought seeking to enjoin swearing in of elected Member of the U.S. House of Representatives, court granted summary judgment to the defendant, rejecting plaintiff’s argument that conviction on impeachment and removal from office necessarily included disqualification from holding future office under the United States); Hastings v. United States Senate, 716 F. Supp. 38 (D.D.C. 1989), aff’d without opinion, 887 F.2d 332 (D.C. Cir. 1989) (plaintiff judges sought preliminary injunctive and declaratory relief against United States Senate, Impeachment Trial Committee, Secretary of Senate, and Public Printer. District court dismissed, finding the issues nonjusticiable. The U.S. Court of Appeals for the D.C. Circuit affirmed without published opinion. The appellate court’s memorandum opinion, available on LEXIS at 1989 U.S. App. LEXIS 15883, deemed the Appellants’ claims premature, basing its decision solely on considerations of ripeness and vital comity concerns fundamental to the balance of power established by the Constitution).

2 In so doing, while Judge Sporkin appended a copy of Rule XI to his decision, he did not discuss the Rule XI requirement that all rulings as to competency, materiality or relevancy must be made by the full Senate, nor did he address the fact that the Rule XI procedure permits the full Senate to take further testimony or to take all evidence in open Senate. Judge Sporkin described the Rule XI committee as a deliberative body, 802 F. Supp. at 494, but seems not to have focused upon the fact that a committee formed to take evidence pursuant to Rule XI reports to the Senate a certified copy of the transcript of proceedings and testimony given before the committee. These committees do not appear to have made any recommendations as to the merits of the impeachment cases before them.

Some Basic Research Tools to Assist in Impeachment Proceedings

The basic procedures to be followed by the House of Representatives are included in JEFFERSON’S MANUAL, published in CONSTITUTION, JEFFERSON’S MANUAL AND RULES OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES, ONE HUNDRED TENTH CONGRESS, H.R. Doc. 109-157, 109^th Cong., 2d Sess. (2007), particularly §§ 31, 38, 41, 162, 173-176, 180, 592, and Sec. LIII, §§ 601-620.1 The MANUAL states general procedural principles to be applied in the House of Representatives, accompanied by references to particular precedents included in HINDS’ PRECEDENTS OF THE HOUSE REPRESENTATIVES (1907) (hereinafter HINDS’) and 40 CANNON’S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES (1936) (herein after CANNON’S),2 and a discussion of relevant English parliamentary procedure and practice. Also of great assistance in exploring precedents in this area is DESCHLER’S PRECEDENTS OF THE UNITED STATES HOUSE OF REPRESENTATIVES, ch. 14, H.R. Doc. No. 661, 94^th Cong., 2d Sess. 389-729 (1977) (hereinafter DESCHLER’S).3 Another valuable source is WM. HOLMES BROWN AND CHARLES W. JOHNSON, HOUSE PRACTICE, A GUIDE TO THE RULES, PRECEDENTS, AND PROCEDURES OF THE HOUSE, 108^th Congress, 1^st 10.4

Senate conduct of impeachment trials is governed by the “Rules of Procedure and Practice in the Senate when Sitting on Impeachment Trials.” The current form of these rules dates from the 1986 impeachment proceedings against Judge Harry E. Claiborne, although many of the rules predate the Claiborne impeachment.5 PROCEDURE AND GUIDELINES FOR IMPEACHMENT TRIALS IN THE SENATE (REVISED EDITION), S. Doc. No. 33, 99^th Cong., 2d Sess. (August 15, 1986), was prepared at the time of the Claiborne proceeding pursuant to S.Res. 439, 99^th Cong., 2d Sess., to assist the Senators in understanding and utilizing the Senate impeachment trial procedure, using examples from past impeachment proceedings to follow the process from its inception, upon receipt of a message from the House of Representatives informing the Senate that the House has voted impeachment, adopted articles, and appointed managers, to its conclusion with the adjournment sine die of the Senate sitting as a Court of Impeachment. As these are Senate rules, that body can, where it deems such action appropriate, revise or amend the rules. Consideration of the appropriateness of such revisions is not unusual when a Senate impeachment trial is anticipated or is at a very early stage of the Senate proceedings.6

1 As noted above, this document is available on the Government Printing Office website at http://www.gpoaccess.gov/hrm/browse_110.html. It may be accessed through a link on the website of the House Committee on Rules at http://www.rules.house.gov/house_rules_precedents.htm, where it is listed as the “House Rules Manual (GPO Access).”

2 HINDS’, CANNON’S, and DESCHLER’S include references to provisions of the Constitution, the laws, and decisions of the United States Senate, as well as precedents pertaining to the House of Representatives. These documents may also be accessed through the House Rules Committee website at http://www.rules.house.gov/house_rules_precedents.htm. Links to all three of these documents may be found by clicking on either the link to “DESCHLER’S PRECEDENTS OF THE U.S. HOUSE OF REPRESENTATIVES” or to “HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES” on this page of the House Rules Committee website, and then clicking on the highlighted links for “[Hinds’ Precedents],” “[Cannon’s Precedents],” or “[Deschler’s Precedents].”

3 The REPORT OF THE NATIONAL COMMISSION ON JUDICIAL DISCIPLINE AND REMOVAL (August 1993), published by the Commission, and the accompanying EXECUTIVE SUMMARY OF THE REPORT OF THE NATIONAL COMMISSION ON JUDICIAL DISCIPLINE AND REMOVAL, RESEARCH PAPERS OF THE NATIONAL COMMISSION ON JUDICIAL DISCIPLINE AND REMOVAL, Volumes I and II, and HEARINGS OF THE NATIONAL COMMISSION ON JUDICIAL DISCIPLINE AND REMOVAL may also provide useful information on impeachment and judicial discipline. For other recent congressional materials relating to impeachment and judicial discipline, see, e.g., Byrd, R., “Impeachment,” 2 THE SENATE, 1789-1989: ADDRESSES ON THE HISTORY OF THE UNITED STATES SENATE 59, S. Doc. No. 100-20 (1991) (Bicentennial ed., Wolff, W., ed.); Impeachment of Article III Judges: Hearing before the Committee on the Judiciary of the United States Senate, Subcomm. on the Constitution, S. Hrg. 101-1275, 101^st Cong., 2d Sess. (1990); Judicial Independence: Discipline and Conduct: Hearing on H.R. 1620, H.R. 1930, and H.R. 2181 before the Comm. on the Judiciary of the House of Representatives, Subcomm. on Courts, Intellectual Property, and Administration of Justice, 101^st Cong., 1^st Sess. (1990).

4 This may be accessed through the House Rules Committee website under the heading of “House Practice: A Guide to the Rules, Precedents and Procedures of the House,” at http://www.rules.house.gov/house_rules_precedents.htm. This, in turn, links to the document at http://www.gpoaccess.gov/hpractice/browse_108.html. Chapter 27 may be found in text or pdf format under the heading of “IMPEACHMENT.”

5 In connection with the impeachment trial of Judge G. Thomas Porteous, Jr., under Sec. 7 of S.Res. 457 (111^th Cong.), “the articles of impeachment, the answer, and the replication, if any, together with the provisions of the Constitution on impeachment and the Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials, shall be printed under the direction of the Secretary as a Senate document.” This is consistent with recent past practice, see, e.g’^thsthttp://www.access.gpo.gov/congress/senate/miscspub.html’^stst’^stst