[House Practice: A Guide to the Rules, Precedents and Procedures of the House]
[Impeachment]
[From the U.S. Government Printing Office, www.gpo.gov]
[[Page 531]]
IMPEACHMENT
A. Generally
Sec. 1. In General; House and Senate Functions
Sec. 2. Who May Be Impeached
Sec. 3. Grounds for Impeachment
Sec. 4. -- Impeachable Misconduct
Sec. 5. Effect of Adjournment
B. Procedure in the House
Sec. 6. In General; Initiation and Referral of Charges
Sec. 7. Committee Investigations
Sec. 8. Consideration in the House; Voting
C. Procedure in the Senate
Sec. 9. In General
Sec. 10. Voting and Judgment
Research References
1 Hinds Secs. 63-79
6 Cannon Secs. 193-202
3 Deschler Ch 14
Manual Secs. 173-176; 603-620
U.S. Const. art. I Secs. 2, 3; art. II Sec. 4
A. Generally
Sec. 1 . In General; House and Senate Functions
Impeachment is a constitutional remedy addressed to serious
offenses against the system of government. It is the first step in a
remedial process--that of removal from public office and possible
disqualification from holding further office. The purpose of
impeachment is not personal punishment; rather, its function is
primarily to maintain constitutional government. Deschler Ch 14 App.
pp 726-728.
Impeachment proceedings have been initiated more than 60 times
since the adoption of the Constitution. 3 Hinds Secs. 2294 et seq.; 6
Cannon Secs. 498 et seq.; Deschler Ch 14 Sec. 1. Fifteen of these
cases resulted in impeachment by the House--President Andrew Johnson
in 1868, Secretary of War Wil-
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liam W. Belknap in 1876, Senator William Blount in 1799 and 12 federal
judges. Only seven impeachments have led to Senate convictions--all of
federal judges.
An impeachment is instituted by a written accusation, called the
``Articles of Impeachment,'' which states the offense charged; the
articles serve the same purpose as an indictment in an ordinary
criminal proceeding. See Manual Sec. 609.
The impeachment power is delineated by the U.S. Constitution. The
House is given the ``sole Power of Impeachment'' (art. I Sec. 2); the
Senate is given ``the sole Power to try all Impeachments'' (art. I
Sec. 3). Impeachments may be brought against the ``President, Vice
President, and all civil Officers of the United States'' (art. II
Sec. 4). Conviction of ``Treason, Bribery, or other high Crimes and
Misdemeanors'' (art. II Sec. 4) is followed by ``removal from Office''
and may include ``disqualification to hold'' further public office
(art. I Sec. 3).
The term ``impeach'' is used in different ways at various stages
of the proceedings. A Member rises on the floor to ``impeach'' an
officer in presenting a resolution or memorial. 3 Hinds Sec. 2469. The
House votes to ``impeach'' in the constitutional sense when it adopts
an impeachment resolution and accompanying articles. Sec. 8, infra.
The Senate then conducts a trial on these articles and either convicts
by two-thirds vote or acquits the ``impeached'' accused federal
official. Sec. 9, infra.
Sec. 2 . Who May Be Impeached
The ``President, Vice President, and all civil Officers of the
United States'' are subject to removal under the impeachment clause of
the Constitution. U.S. Const. art. II Sec. 4. A private citizen who
has held no public office may not be impeached. 3 Hinds Secs. 2007,
2315.
It has been said that the term ``civil Officers,'' as used in the
Constitution, is broad enough to include all officers of the United
States who hold their appointment from the federal government, whether
their duties be executive, administrative, or judicial, or whether
their position be high or low. Impeachment, Selected Materials,
Committee on the Judiciary, H. Doc. No. 93-7, p 691, Oct. 1973. On the
other hand, military officers are not subject to impeachment, since
they are subject to disciplinary measures according to military codes.
3 Willoughby, The Constitution (1929) Sec. 929; 9 Hughes, Federal
Practice (1931) Sec. 7228.
A Member of Congress is not a ``civil Officer'' within the meaning
of the impeachment provisions of the Constitution. 3 Hinds Secs. 2310,
2316. The contention that a Senator was not a civil officer within the
meaning of the
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impeachment provisions of the Constitution was sustained by the Senate
in 1799. The Senate dismissed impeachment charges brought to its bar
by the House, finding that an impeachment of a Senator was beyond its
jurisdiction. 3 Hinds Sec. 2318.
Federal judges are subject to removal under the impeachment
provisions of the Constitution. Of the 15 impeachments reaching the
Senate, 12 have been directed at federal judges, and in seven of these
cases the Senate voted to convict: Pickering in 1803 (3 Hinds
Secs. 2319-2341), Humphreys in 1863 (3 Hinds Secs. 2385-2397),
Archbald in 1912 (6 Cannon Secs. 498-512), Ritter in 1936 (S. Doc. No.
200, 74-2, 1936), Claiborne in 1986, and Nixon and Hastings in 1988
and 1989 (see Manual Sec. 176).
Impeachment proceedings were initiated against a Member of the
President's Cabinet in 1876, when impeachment charges were filed
against William Belknap, who had been Secretary of War. The House and
Senate debated the power of impeachment at length and determined that
the former secretary was amenable to impeachment and trial. 3 Hinds
Secs. 2007, 2467. In 1978, the House voted to table a privileged
resolution impeaching Andrew Young, the United States Ambassador to
the United Nations. 95-2, July 13, 1978, p 20606.
A Commissioner of the District of Columbia has been held not to be
a civil officer subject to impeachment under the Constitution. 6
Cannon Sec. 548.
Effect of Resignation
The House and Senate have the power to impeach and try an accused
who has resigned. Deschler Ch 14 Sec. 2. It has been conceded (in the
Blount impeachment proceeding) that a person who has been impeached
cannot escape punishment simply by submitting his resignation. 3 Hinds
Secs. 2317, 2318. As a practical matter, however, the resignation of
an official about to be impeached generally puts an end to impeachment
proceedings because the primary objective--removal from office--has
been accomplished. This was the case in the impeachment proceedings
begun against President Nixon in 1974 and federal judge George English
in 1926. Deschler Ch 14 Secs. 2.1, 2.2. President Nixon having
resigned following the decision of the Committee on the Judiciary to
report to the House recommending his impeachment, further proceedings
were discontinued. H. Rept. No. 93-1305, 93-2, Aug. 20, 1974, p 29361.
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Sec. 3 . Grounds for Impeachment
Generally
The Constitution defines the grounds for impeachment and
conviction as ``Treason, Bribery, or other high Crimes and
Misdemeanors.'' U.S. Const. art. II Sec. 4. When the House determines
that grounds for impeachment exist, and they are adopted by the House,
they are presented to the Senate in articles of impeachment. Any one
of the articles may provide a sufficient basis or ground for
impeachment. Deschler Ch 14 Sec. 3.
The interpretation which has been placed on the words ``high
Crimes and Misdemeanors'' is a broad one. The framers of the
Constitution adopted the phrase from the English practice. At the time
of the Constitutional Convention, the phrase ``high crimes and
misdemeanors'' had been in use for over 400 years in impeachment
proceedings in Parliament. Some of these impeachments charged high
treason; others charged high crimes and misdemeanors. The latter
included both statutory offenses and nonstatutory offenses. Many of
the charges involved abuse of official power or trust. Deschler Ch 14
App. pp 706-708.
An offense must be serious or substantial in nature to provide
grounds for impeachment. This requirement flows from the language of
the clause itself--``high Crimes and Misdemeanors.'' While there is
some authority to the contrary, it is generally accepted that the
adjective ``high'' modifies ``Misdemeanors'' as well as ``Crimes.''
Impeachment--Selected Materials, Committee on the Judiciary, 93-1,
Oct. 1973, p 682. As to what constitutes a serious, impeachable
offense, one commentator has said:
To determine whether or not an act or a course of conduct is
sufficient in law to support an impeachment, resort must be had to
the eternal principles of right, applied to public propriety and
civil morality. The offense must be prejudicial to the public
interest and it must flow from a willful intent, or a reckless
disregard of duty. . . . It may constitute an intentional violation
of positive law, or it may be an official dereliction of commission
or omission, a serious breach of moral obligation, or other gross
impropriety of personal conduct which, in its natural consequences,
tends to bring an office into contempt and disrepute. Brown, The
Impeachment of the Federal Judiciary, 26 Harv. L. Rev. 684, 703,
704.
The time when the offenses were committed is a factor to be taken
into consideration. In 1973, the House declined to take any action on
a request by Vice President Agnew for an investigation into
allegations of impeachable offenses, where the offenses were not
committed during his term of office as Vice President and where the
offenses were pending before the courts. 93-1, Sept. 25, 1973, p
31368.
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Exactly 100 years earlier, by coincidence in a case that also
involved the Vice President, the Judiciary Committee found that
Schuyler Colfax could not be impeached for an alleged offense
committed before his term of office as Speaker of the House. 3 Hinds
Sec. 2510.
Presidential Impeachments
The grounds for invoking the impeachment power against the
President were illustrated in 1974 when the House initiated an inquiry
into President Nixon's conduct as a result of charges arising out of a
1972 break-in at the Democratic National Headquarters in the Watergate
Office Building in Washington, D.C. The House Judiciary Committee
adopted three articles of impeachment against Nixon late in July 1974.
The articles charged him with abuse of his Presidential powers,
obstruction of justice, and contempt of Congress. Deschler Ch 14
Sec. 3.7. Before the full House voted on these articles, Nixon
resigned, after having been assured that his impeachment was a virtual
certainty. His resignation terminated further action on the issue,
although the articles were submitted to and accepted by the House. 93-
2, Aug. 20, 1974, pp 29219-29362.
This was but the second time in the history of the United States
that the House resolved to investigate the possibility of impeaching a
President. Some 107 years earlier the House had investigated whether
President Andrew Johnson should be impeached. Johnson was impeached by
the House on the ground that he had violated the Tenure of Office Act
by dismissing a Cabinet chief. The theory of the proponents of
impeachment was succinctly put by one of the managers in the Senate
trial:
An impeachable high crime or misdemeanor is one in its nature or
consequences subversive of some fundamental or essential principle
of government or highly prejudicial to the public interest, and this
may consist of a violation of the Constitution, of law, of an
official oath, or of duty, by an act committed or omitted, or,
without violating a positive law, by the abuse of discretionary
powers from improper motives or for an improper purpose. The
Constitution of the United States of America--Analysis and
Interpretation, p 607, U.S. Government Printing Office, 1982.
Judicial Impeachments
Since federal judges hold office ``during good Behaviour'' (U.S.
Const. art. III Sec. 1), it has been suggested that misbehavior
properly defines the bounds of ``high Crimes and Misdemeanors,'' or
even that lack of good behavior constitutes an independent standard
for impeachment. 6 Cannon Sec. 464. The more modern view, however, is
that the ``good Behaviour'' clause is more aptly descriptive of
judicial tenure; that is, that it does not constitute a standard for
impeachability, but merely means that federal
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judges hold office for life unless removed under some other provision
of the Constitution. Under this view, the power of removal, together
with the appropriate standard, are contained solely in the impeachment
clause. Impeachment--Selected Materials, Committee on the Judiciary,
93-1, Oct. 1973, p 666.
The grounds for impeachment of federal judges were scrutinized in
1970, in the inquiry into the conduct of Associate Justice Douglas of
the Supreme Court. The report concluded that a federal judge could be
impeached for judicial conduct which is either criminal or a serious
abuse of public duty, or for nonjudicial conduct which is criminal.
Deschler Ch 14 Sec. 3.13 (proceedings discontinued for lack of
evidence).
Sec. 4 . -- Impeachable Misconduct
Impeachments have commonly involved charges of misconduct
incompatible with the official position of the office holder. This
conduct falls into three broad categories: (1) abusing or exceeding
the lawful powers of the office; (2) behaving in a manner grossly
incompatible with the office; and (3) using the power of the office
for an improper purpose or for personal gain. See Deschler Ch 14 App.
p 719.
Abusing or Exceeding the Powers of the Office
The impeachment by the House of Senator William Blount in 1797 was
based on allegations that he attempted to incite an Indian attack in
order to capture certain territory for the British. He was charged
with engaging in a conspiracy to compromise U.S. neutrality, and with
attempting to oust the President's lawful appointee as principle agent
for Indian affairs. 3 Hinds Secs. 2294-2318. Although the Senate found
that it had no jurisdiction over the trial of an impeached Senator, it
expelled him for having been guilty of a ``high misdemeanor, entirely
inconsistent with his public trust and duty as a Senator.'' Deschler
Ch 14 App. p 720.
The impeachment of President Andrew Johnson in 1868 was likewise
based on allegations that he had exceeded the power of his office.
Johnson was charged with violation of the Tenure of Office Act, which
purported to limit the President's authority to remove members of his
own Cabinet. Johnson, believing the act unconstitutional, removed
Secretary of War Stanton and was impeached by the House three days
later. Johnson was acquitted in the Senate by a single vote. 3 Hinds
Secs. 2399.
A serious abuse of the powers of the office was a charge included
among the recommended articles impeaching President Nixon in 1974. The
Judiciary Committee found that his conduct ``constituted a repeated
and continuing abuse of the powers of the Presidency in disregard of
the fun-
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damental principle of the rule of law in our system of government.''
Deschler Ch 14 Sec. 3.7.
Behavior Grossly Incompatible With the Office
Judge John Pickering was impeached by the House in 1803 for errors
in a trial in violation of his trust and duty as a judge, and for
appearing on the bench during the trial in a state of intoxication and
using profane language. Pickering was convicted in the Senate and
removed from office. 3 Hinds Secs. 2319-2341.
Associate Supreme Court Justice Samuel Chase was impeached by the
House in 1804. The House charged Chase with permitting his partisan
views to influence his conduct in certain trials. His conduct was
alleged to be a serious breach of his duty to judge impartially and to
reflect on his competence to continue to exercise the power of the
office. Chase was acquitted in the Senate. 3 Hinds Secs. 2342-2363.
Judge West Humphreys was impeached by the House and convicted in
the Senate in 1862 on charges that he joined the Confederacy without
resigning his federal judgeship. Judicial prejudice against Union
supporters was also alleged. 3 Hinds Secs. 2385-2397.
Judge George W. English was impeached by the House in 1926 for
showing judicial favoritism and for failure to give impartial
consideration to cases before him. It was alleged that his favortism
had created distrust of his official actions and destroyed public
confidence in his court. 6 Cannon Secs. 544-547. Judge English
resigned prior to commencement of trial by the Senate and the
proceedings were discontinued at that point.
Using the Office for an Improper Purpose or Personal Gain
In 1826, Judge James Peck was impeached by the House for taking
action against a lawyer who had publicly criticized one of his
decisions, imprisoning him, and ordering his disbarment. The House
charged that such conduct was unjust, arbitrary, and beyond the scope
of his judicial duties. Peck was acquitted in the Senate. 3 Hinds
Secs. 2364-2366. Vindictive use of power also constituted an element
of the charges in the articles of impeachment voted against Judge
Charles Swayne in 1903. It was alleged that he maliciously and
unlawfully imprisoned two lawyers and a litigant for contempt. 3 Hinds
Secs. 2469-2485.
Several impeachments have alleged the use of office for personal
gain or the appearance of financial impropriety while in office.
Secretary of War William Belknap was impeached by the House in 1876
for receiving substantial payments in return for his making of an
appointment. He was acquitted in the Senate. 3 Hinds Secs. 2444-2468.
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The use of the office for direct or indirect personal monetary
gain was also involved in the impeachments of Judges Charles Swayne
(1903), Robert Archbald (1912), George English (1926), Harold
Louderback (1932), and Halsted Ritter (1936). Judge Swayne was charged
with falsifying expense accounts. Judge Archbald was charged with
using his office to secure business favors from litigants and
potential litigants before his court. Judges English, Louderback, and
Ritter were charged with misusing their power to appoint and set the
fees of bankruptcy receivers for personal profit. See 3 Hinds
Secs. 2469-2485 (Swayne); 6 Cannon Secs. 498-512 (Archbald);
Secs. 544-547 (English); Secs. 513-524 (Louderback); 74-2, Jan. 14,
1936, p 5602 (Ritter).
In 1986, the House agreed to a resolution impeaching federal
district judge Harry Claiborne, who had been convicted of falsifying
federal income tax returns. His final appeal was denied by the Supreme
Court, and he began serving his prison sentence. Because he declined
to resign, however, Judge Claiborne was still receiving his judicial
salary and, absent impeachment, would resume the bench on his release
from prison. Consequently, a resolution of impeachment was introduced
on June 3, and on July 16, the Committee on the Judiciary reported to
the House four articles of impeachment against Judge Claiborne. On
July 22, the resolution was called up as a question of privilege and
agreed to by a recorded vote of 406 yeas, 0 nays. After trial in the
Senate, Judge Claiborne was convicted on three of the four articles of
impeachment and removed from office on Oct. 9, 1986. Manual Sec. 176.
In 1988, the House agreed to a resolution reported from the
Committee on the Judiciary impeaching federal district judge Alcee L.
Hastings. The resolution specified 17 articles of impeachment, some of
them addressing allegations on which the judge had been acquitted in a
federal criminal trial (H. Res. 499, 100-2, Aug. 3, 1988, pp 20206 et
seq.). The judge was convicted in a trial before the Senate in the One
Hundred First Congress. 101-1, Oct. 20, 1989, p ____.
In 1989, the House voted 417 to 0 to impeach U.S. District Court
Judge Walter L. Nixon, Jr. after he had been convicted on two counts
of perjury before a grand jury about his relationship to a man whose
son was being prosecuted for drug-smuggling. The impeachment
resolution charged that Nixon had given false information about
whether he had discussed the case with the local district attorney and
attempted to influence its outcome. 101-1, May 10, 1989, p 8814.
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Noncriminal Misconduct
In the history of impeachments under the U.S. Constitution, the
most closely debated issue has been whether impeachment is limited to
offenses indictable under the criminal law--or at least to offenses
which constitute crimes--or whether the word ``Misdemeanors'' in the
impeachment clause extends to noncriminal misconduct as well. While
the precedents are not entirely uniform, the majority clearly favors
the broader definition. As stated in the Ritter impeachment, the
modern view is that the provision for impeachment in the Constitution
applies not only to high crimes and misdemeanors as those words were
understood at common law, but also to acts which, though not defined
as criminal, adversely affect the public interest. H. Rept. No. 93-
653, pp 9, 10 (1926).
The historical evidence establishes that the phrase ``high crimes
and misdemeanors''--which over a period of centuries evolved into the
English standard of impeachable conduct--had a special and distinctive
meaning, and referred to a category of offenses that subverted the
system of government. Deschler Ch 14 App. p 724. The American
experience with impeachment likewise reflects the view that
impeachable conduct need not be criminal. Of the 15 impeachments voted
by the House since 1789, at least 10 involved one or more allegations
that did not charge a violation of criminal law. Deschler Ch 14 App. p
725. The impeachment of Judge Pickering in 1803 was the first such
proceeding to result in conviction and was based, at least in part, on
noncriminal misconduct. The first three articles involved a series of
flagrant errors on the part of the judge in his conduct of a case. 3
Hinds Secs. 2319 et seq. Similarly, in 1974, in recommending articles
impeaching President Nixon, the House Committee on the Judiciary
concluded that the President could be impeached not only for
violations of federal criminal statutes, but also for abuse of the
power of his office and for refusal to comply with proper subpenas of
the committee. Deschler Ch 14 Sec. 3.7.
In drawing up articles of impeachment, the House has placed little
emphasis on criminal conduct. Less than one-third of all the articles
the House has adopted have explicitly charged the violation of a
criminal statute or used the word ``criminal'' or ``crime'' to
describe the conduct alleged. Much more common in the articles are
allegations that the officer has violated his duties or his oath or
seriously undermined public confidence in his ability to perform his
official functions. Deschler Ch 14 App. p 723.
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Sec. 5 . Effect of Adjournment
An impeachment may proceed only when Congress is in session. 3
Hinds Secs. 2006, 2462. But an impeachment proceeding does not die
with adjournment. An impeachment proceeding begun in the House in one
Congress may be resumed by the House in the next Congress. 3 Hinds
Sec. 2321. And an official impeached by the House in one Congress may
be tried by the Senate in the next. 3 Hinds Secs. 2319, 2320.
Managers on the part of the House who were appointed in the prior
Congress to conduct the trial in the Senate may be reappointed in the
following Congress by resolution. Deschler Ch 14 Sec. 4.2. Thus, the
resolution and articles of impeachment against Judge Alcee Hastings
were presented in the Senate during the second session of the 100th
Congress (100-2, Aug. 3, 1988, p 20223) but were still pending trial
by the Senate in the 101st Congress, when the House reappointed
managers (101-1, Jan. 3, 1989, p 84).
B. Procedure in the House
Sec. 6 . In General; Initiation and Referral of Charges
Generally
Under the modern practice, an impeachment is normally instituted
by the House by the adoption of a resolution calling for a committee
investigation of charges against the officer in question. This
committee may, after investigation, recommend the dismissal of charges
or it may recommend impeachment. Impeachment--Selected Materials,
Committee on the Judiciary, H. Doc. No. 93-7, Oct. 1973, p 699. A
resolution recommending impeachment is reported to the House
simultaneously with the articles of impeachment setting forth the
grounds for the proposed action. Sec. 8, infra. Following the adoption
of a resolution to impeach, the House appoints managers to conduct the
impeachment trial in the Senate. The Senate is then informed of these
facts by resolution. Deschler Ch 14 Sec. 9. When this resolution
reaches the Senate, the Senate advises the House as to when the Senate
will receive the managers appointed by the House. The managers then
present themselves and the impeachment articles to the Senate, the
House reserving the right to file additional articles later. Deschler
Ch 14 Secs. 10, 11.
Initiation of Charges
In most cases, impeachment proceedings in the House have been
initiated either by introducing resolutions of impeachment by placing
them in
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the hopper, or by offering charges in a resolution on the floor of the
House under a question of constitutional privilege. Deschler Ch 14
Sec. 5.
Other methods of setting an impeachment in motion in the House
include:
Charges initiatd by a memorial from one or more citizens and
referred to committee. 3 Hinds Secs. 2364, 2491, 2494.
A message from the President. 3 Hinds Secs. 2294, 2319; 6
Cannon Sec. 498.
Charges transmitted from the legislature of a state. 3 Hinds
Sec. 2469.
Charges arising from a grand jury investigation. 3 Hinds
Sec. 2488.
In the 93d Congress, Vice President Agnew used a letter to the
Speaker to attempt to initiate an investigation by the House of
charges against him of possible impeachable offenses; the House took
no action on the request. 93-1, Sept. 25, 1973, p 31368.
Referral to Committee
Resolutions introduced through the hopper which directly call for
an impeachment are referred to the Committee on the Judiciary, whereas
resolutions merely calling for a committee investigation with a view
toward impeachment are referred to the Committee on Rules. See 93-1,
Oct. 23, 1973, p 34873. Thus, a resolution authorizing an
investigation in the 89th Congress into the conduct of three federal
judges was referred to the Committee on Rules. 89-2, Feb. 22, 1966, p
3665. But where a Member announces on the floor that he is introducing
a resolution of impeachment, the resolution is referred to the
Committee on the Judiciary if it is a direct proposition to impeach.
91-2, Apr. 15, 1970, pp 11912, 11920, 11941 (Douglas).
All impeachments to reach the Senate since 1900 have been based on
Judiciary Committee resolutions. Prior to that committee's creation in
1813, impeachments were referred to a special committee for
investigation. 6 Cannon Sec. 657; Manual Secs. 603 et seq.
Sec. 7 . Committee Investigations
Committee impeachment investigations are governed by those
portions of Rule XI relating to committee investigatory and hearing
procedures, and by any rules and special procedures adopted by the
committee for the inquiry. See Deschler Ch 14 Secs. 6.3 et seq. The
House may by resolution waive a requirement of these rules in a
particular case. In one recent instance, the House agreed to a
resolution authorizing the counsel to the Committee on the Judiciary
to take depositions of witnesses in an impeachment investigation and
waiving the provisions of Rule XI which requires at least
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two committee members to be present during the taking of such
testimony. 93-2, Feb. 6, 1974, pp 2349 et seq.
Under the earlier practice, the committee sometimes made its
inquiry ex parte (3 Hinds Secs. 2319, 2343, 2385), but the modern
trend is to permit the accused to testify, present witnesses, cross-
examine witnesses (3 Hinds Secs. 2445, 2471, 2518), and be represented
by counsel (3 Hinds Secs. 2470, 2501; 93-2, Aug. 20, 1974, p 29219).
Constitutionality, see Sec. 9, infra.
Confidentiality of Material; Access
The Committee on the Judiciary may adopt procedures which insure
the confidentiality of impeachment inquiry materials and which limit
access to such materials. Deschler Ch 14 Sec. 15.3. Where a federal
court subpenas certain evidence gathered by the committee in an
impeachment inquiry, the House may adopt a resolution granting such
limited access to the evidence as will not violate the privileges of
the House or its sole power of impeachment under the Constitution. 93-
2, Aug. 22, 1974, p 30047.
Subcommittee Investigations
An investigatory subcommittee charged with an impeachment inquiry
is limited to the powers expressly authorized by the full committee.
See Deschler Ch 14 Sec. 6.11. After completing its investigation, the
subcommittee ordinarily submits recommendations to the full committee
as to whether impeachment is warranted. See, for example, Final Report
of the Special Subcommittee on H. Res. 920 of the Committee on the
Judiciary, 91-2, Sept. 17, 1970 (Douglas).
Forms
For forms of resolutions authorizing an investigation of the
sufficiency of grounds for impeachment and conferring subpena power
and authority to take testimony, see Deschler Ch 14 Sec. 6.
Sec. 8 . Consideration in the House; Voting
Generally
The target of an impeachment proceeding is impeached by the House
if it adopts a resolution with articles of impeachment. Only a
majority vote is necessary (whereas a two-thirds vote is required in
the Senate for conviction). Impeachments--Selected Materials,
Committee on the Judiciary, H. Doc. No. 93-7, Oct. 1973, p 700. In
this regard, as is the usual practice, the committee's recommendations
as reported in the resolution are in no way binding on the House. In
1933, the House voted to impeach Judge Har-
[[Page 543]]
old Louderback even though the House Judiciary Committee found
insufficient grounds to recommend impeachment. 6 Cannon Sec. 514.
Impeachment Propositions as Privileged
A resolution impeaching an officer is highly privileged under the
Constitution, and therefore supersedes other pending business (3 Hinds
Secs. 2045-2048; 6 Cannon Sec. 468), including an election contest (3
Hinds Sec. 2581). Such a resolution may be immediately considered in
the House as a question of high privilege [and is therefore not
subject to the three-day layover requirement of Rule XI]. 95-2, July
13, 1978, p 20606 (Andrew Young). It does not lose its privilege from
the fact that a similar proposition has been made at a previous time
during the same session. 3 Hinds Sec. 2408. However, a resolution
simply proposing an investigation is not privileged, even though
impeachment may be a possible consequence. 3 Hinds Secs. 2050, 2546; 6
Cannon Sec. 463.
A committee to which resolutions of impeachment have been referred
may report and call up as privileged resolutions incidental to the
consideration of the impeachment question. If, however, such a
resolution is offered on the floor by a Member on his own initiative
and not reported from the committee to which the impeachment has been
referred, it is not privileged for immediate consideration, since not
directly calling for impeachment. Deschler Ch 14 Sec. 5.8.
Propositions incidental to an ongoing impeachment proceeding taken
up as privileged (3 Hinds Sec. 2400), have included:
Reports relating to the investigation (3 Hinds Sec. 2402;
Deschler Ch 14 Sec. 8.2).
Resolutions providing for the selection of managers (6 Cannon
Sec. 517).
Propositions to abate an impeachment proceeding (6 Cannon
Sec. 514).
Proposals to confer subpena authority or to provide funding
for the investigation (6 Cannon Sec. 549; 93-2, Feb. 6, 1974, p
2349).
Resolutions incidental to the consideration of the impeachment
question may be called up as privileged by the committee considering
the matter. 93-2, Feb. 6, 1974, p 2349.
Although charges or resolutions of impeachment are privileged,
they cannot be presented while another Member has the floor unless he
yields for that purpose. 91-2, Apr. 15, 1970, p 11920.
Debate; Motions
Propositions of impeachment are considered under the general rules
of the House applicable to other simple House resolutions, unless the
House otherwise provides by special order. Deschler Ch 14 Sec. 8.
Since 1912, the
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House has considered the resolution together with the articles of
impeachment. Deschler Ch 14 Sec. 8.2. The House may consider the
resolution and articles under a unanimous-consent agreement fixing and
controlling the time for debate. Deschler Ch 14 Secs. 8.1, 8.4. The
motion for the previous question and the motion to recommit are
applicable, and a separate vote may be demanded on substantive
propositions contained in the resolution. Deschler Ch 14 Secs. 8.8-
8.10. The resolution is also subject to a motion to lay on the table
before debate thereon. 95-2, July 13, 1978, p 20606.
A wide range of debate is permitted on impeachment proposals, and
a Member may refer to the political, social, and even the family
background of the accused. Deschler Ch 14 Sec. 8.5.
C. Procedure in the Senate
Sec. 9 . In General
The sole power to try impeachments is vested in the Senate under
the Constitution. U.S. Const. art. I Sec. 3 clause 6. On the day of
the trial, the Senate resolves itself into a court for the trial of
the impeachment. Deschler Ch 14 Sec. 11.5. The President of the Senate
presides over the trial, except in the case of the impeachment of the
President of the United States or the Vice President, in which case
the Chief Justice presides. Deschler Ch 14 Sec. 11. Upon organization
of the court, the managers appear and the trial of the case proceeds.
In the later practice, the resolution and articles of impeachment have
been considered together and exhibited simultaneously in the Senate by
the House managers. 6 Cannon Secs. 501, 515; 74-2, Mar. 10, 1936, pp
3485-88. Objections to the articles of impeachment, on the ground that
they duplicate and accumulate separate offenses, have been overruled.
74-2, Apr. 3, 1936, p 4898; 74-2, Apr. 17, 1936, p 5606.
The presentation of the evidence follows a traditional sequence.
The evidence against the accused is first presented, then evidence in
defense and concluding evidence by the managers. The accused is
permitted to testify in answer to the charges contained in the
articles. 6 Cannon Secs. 511, 524; Deschler Ch 14 Sec. 12.11. Counsel
are permitted to appear, to be heard, to argue on preliminary and
interlocutory questions, to deliver opening and final arguments, to
submit motions, and to present evidence and examine and cross-examine
witnesses. Deschler Ch 14 Sec. 12.
The use of a Senate committee in judicial impeachment proceedings
does not violate any constitutional rights or offend fundamental
notions of justice. Hastings v U.S. Senate, Impeachment Trial
Committee, D.D.C. 1989, 716 F Supp 38. In one recent case, the court
denied the claim of a former
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federal judge that conviction voted by the Senate on two articles of
impeachment adopted by the House was void because the judge was not
afforded trial before the ``full'' Senate, rather than before a Senate
committee. The court ruled that the Senate's denial of the former
judge's motion for hearing before the full Senate, while according him
the opportunity to present and cross-examine witnesses before the 12-
member committee, and an opportunity to argue both personally and by
counsel before the full Senate, did not make the controversy
justiciable and the claim meritorious. Nixon v US, D.D.C. 1990, 744 F
Supp 9, affirmed 938 F2d 239, 290 U.S. App. D.C. 420, affirmed 113
S.Ct. 732, 122 L.Ed.2d 1.
At the conclusion of the evidence, there is argument, followed by
deliberation by the Senate in executive session and a vote in open
session. Deschler Ch 14 Sec. 13. Prior to the vote, the proceedings
may be dismissed in the Senate on the advice of the House managers.
Deschler Ch 14 Sec. 2.2.
Sec. 10 . Voting and Judgment
Under the Constitution, a two-thirds vote is required to convict
the accused on an article of impeachment (U.S. Const. art. I Sec. 3
clause 6), the articles being voted on separately under the Senate
rules (Deschler Ch 14 Sec. 13). The yeas and nays are taken on each
article separately. 3 Hinds Secs. 2098, 2339. In some instances, the
Senate has adopted an order to provide a method of voting and putting
the question separately and successively on each article. 6 Cannon
Sec. 524; 74-2, Apr. 16, 1936, p 5558.
The Constitution provides for removal from office on conviction
and also allows the further judgment of disqualification from holding
further office. U.S. Const. art. I Sec. 3 clause 7. No vote is
required on removal following conviction, since removal follows
automatically from conviction under this constitutional provision.
Deschler Ch 14 Sec. 13.9. But the further judgment of disqualification
from holding future office requires a majority vote. Deschler Ch 14
Sec. 13.10. The question on removal and disqualification is divisible.
3 Hinds Sec. 2397; 6 Cannon Sec. 512.
The impeachment and removal from office of a United States
District Judge did not necessarily disqualify him from holding office
as a Member of the House, absent any specific action taken by the
Senate to disqualify him from future federal office. Waggoner v
Hastings, S.D.Fla. 1993, 816 F. Sup. 716.