[Deschler's Precedents, Volume 3, Chapters 10 - 14]
[Chapter 14. Impeachment Powers]
[A. Generally]
[Â§ 1. Constitutional Provisions; House and Senate Functions]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1945-1951]
 
                               CHAPTER 14
 
                           Impeachment Powers
 
                              A. GENERALLY
 
Sec. 1. Constitutional Provisions; House and Senate Functions



    The impeachment power is delineated and circumscribed by several 
provisions of the U.S. Constitution. They state:

        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 II, Section 4.
        . . . and [the House of Representatives] shall have the sole 
    Power of Impeachment. Article I, Section 2, clause 5.
        The Senate shall have the sole Power to try all Impeachments. 
    When sitting for that Purpose, they shall be on Oath or 
    Affirmation. When the President of the United States is tried, the 
    Chief Justice shall preside: And no Person shall be convicted 
    without the Concurrence of two thirds of the Members present. 
    Article I, Section 3, clause 6.
        Judgment in Cases of Impeachment shall not extend further than 
    to removal from Office, and disqualification to hold and enjoy any 
    Office of honor, Trust or Profit under the United States: but the 
    Party convicted shall nevertheless be liable and subject to 
    Indictment, Trial, Judgment and Punishment, according to Law. 
    Article I, Section 3, clause 7.

    Two other sections of the U.S. Constitution also mention 
impeachment:

        The President . . . shall have Power to grant Reprieves and 
    Pardons for Offences against the United States, except in Cases of 
    Impeachment. Article II, section 2, clause 1.
        The Trial of all Crimes, except in Cases of Impeachment, shall 
    be by Jury. . . . Article III, section 2, clause 3.

    Since the First Congress of the United States, the House of 
Representatives has impeached 13 officers of the United States, of whom 
10 were federal judges, one was a cabinet officer, one a U.S. Senator, 
and one the President of the United States.
    Conviction has been voted by the Senate in four cases, all 
involving federal judges. The judges so convicted were John Pickering 
in 1804, West H. Humphreys in 1862, Robert W. Archbald in 1912, and 
Halsted L. Ritter in 1936.
    On numerous other occasions, the impeachment process has

[[Page 1946]]

been initiated in the House as to civil officers and judges but has not 
resulted in consideration by the House of a report recommending 
impeachment. In the two most recent cases where investigations have 
been conducted by the Committee on the Judiciary and its subcommittees, 
in relation to Supreme Court Associate Justice William O. Douglas in 
1970 and in relation to President Richard M. Nixon in 1974, the 
proceedings have occasioned intense congressional and national debate 
as to the scope of the impeachment power, the grounds for impeachment 
and for conviction, the analogy if any between the impeachment process 
and the judicial criminal process, and the amenability of the 
impeachment process to judicial review.
    It should be noted at this point that of the four judges convicted 
and removed from office, none has directly sought to challenge through 
the judicial process his impeachment by the House and conviction by the 
Senate. Judge Halsted L. Ritter, convicted by the Senate in 1936, 
indirectly challenged his conviction by filing suit for back salary in 
the U.S. Court of Claims, where he alleged that the Senate had tried 
him on grounds not constituting impeachable offenses under the 
Constitution. The Court of Claims dismissed the claim for want of 
jurisdiction, holding that the Senate's power to try impeachments was 
exclusive under the Constitution. The court cited the Supreme Court 
case of Mississippi v Johnson, wherein Chief Justice Samuel Chase had 
stated in dictum that the impeachment process was not subject to 
judicial review.(1) The Court of Claims opinion read in 
part:
---------------------------------------------------------------------------
 1. Ritter v United States, 84 Ct. Cls. 293 (1936), cert. denied, 300 
        U.S. 668 (1937), citing Mississippi v Johnson, 71 U.S. (4 
        Wall.) 475, 501 (1867).
---------------------------------------------------------------------------

        While the Senate in one sense acts as a court on the trial of 
    an impeachment, it is essentially a political body and in its 
    actions is influenced by the views of its members on the public 
    welfare. The courts, on the other hand, are expected to render 
    their decisions according to the law regardless of the 
    consequences. This must have been realized by the members of the 
    Constitutional Convention and in rejecting proposals to have 
    impeachments tried by a court composed of regularly appointed 
    judges we think it avoided the possibility of unseemly conflicts 
    between a political body such as the Senate and the judicial 
    tribunals which might determine the case on different 
    principles.(2)
---------------------------------------------------------------------------
 2. Ritter v United States, 84 Ct. Cls. 293, 300 (1936).
---------------------------------------------------------------------------

                            Cross References
Discussions of the impeachment process generally, see Sec. Sec. 3.6-
    3.14 and appendix, infra.

[[Page 1947]]

High privilege of impeachment propositions, see Sec. Sec. 5, 8, infra.
Pardon of officer who has resigned before his impeachment by the House, 
    see Sec. 15.15. infra.

                         Collateral References
For early precedents on the impeachment power and process, see the 
    following chapters in Hinds' Precedents: Ch. 63 (Nature of 
    Impeachment); Ch. 64 (Function of the House in Impeachment); Ch. 65 
    (Function of the Senate in Impeachment); Ch. 66 (Procedure of the 
    Senate in Impeachment); Ch. 67 (Conduct of Impeachment Trials); Ch. 
    68 (Presentation of Testimony in an Impeachment Trial); Ch. 69 
    (Rules of Evidence in an Impeachment Trial); Ch. 70 (Impeachment 
    and Trial of William Blount); Ch. 71 (Impeachment and Trial of John 
    Pickering); Ch. 72 (Impeachment and Trial of Samuel Chase); Ch. 73 
    (Impeachment and Trial of James H. Peck); Ch. 74 (Impeachment and 
    Trial of West H. Humphreys); Ch. 75 (First Attempts to Impeach the 
    President); Ch. 76 (Impeachment and Trial of President Andrew 
    Johnson); Ch. 77 (Impeachment and Trial of William W. Belknap); Ch. 
    78 (Impeachment and Trial of Charles Swayne); Ch. 79 (Impeachment 
    Proceedings not Resulting in Trial).

        See also the following chapters in Cannon's Precedents: Ch. 193 
    (Nature of Impeachment); Ch. 194 (Function of the House in 
    Impeachment); Ch. 195 (Function of the Senate in Impeachment); Ch. 
    196 (Procedure of the Senate in Impeachment); Ch. 197 (Conduct of 
    Impeachment Trials); Ch. 198 (Presentation of Testimony in an 
    Impeachment Trial); Ch. 199 (Rules of Evidence in an Impeachment 
    Trial); Ch. 200 (Impeachment and Trial of Robert W. Archbald); Ch. 
    201 (Impeachment and Trial of Harold Louderback); Ch. 202 
    (Impeachment Proceedings not Resulting in Trial).
The impeachment power under parliamentary law, see House Rules and 
    Manual Sec. Sec. 601-620 (Jefferson's Manual) (1973).
Impeachment, Selected Materials, Committee on the Judiciary, H. Doc. 
    No. 93-7, 93d Cong. 1st Sess., Oct. 1973 (constitutional provisions 
    and historical precedents and debate).
Impeachment, Selected Materials on Procedure, Committee on the 
    Judiciary, Committee Print, 93d Cong. 2d Sess., Jan. 1974 (relevant 
    extracts from Hinds' and Cannon's Precedents of the House of 
    Representatives).                          -------------------

Impeachment and the Federal Courts

Sec. 1.1 The Speaker laid before the House a communication from the 
    Clerk, informing the House of the receipt of a summons and 
    complaint naming the House as a defendant in a civil action, 
    instituted in a U.S. District Court, seeking to enjoin impeachment 
    proceedings pending in the House.

    On May 28, 1974, Speaker Carl Albert, of Oklahoma, laid before the 
House a communication from the Clerk, advising of his receipt

[[Page 1948]]

of a summons and complaint issued by the U.S. District Court for the 
Eastern District of Virginia, in connection with Civil Action No. 74-
54-NN, The National Citizens' Committee for Fairness to the President v 
United States House of Representatives.(3)
---------------------------------------------------------------------------
 3. 120 Cong. Rec. 16496, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

    Parliamentarian's Note: The plaintiff in this action sought to 
enjoin the impeachment proceedings pending in the House against 
President Richard M. Nixon. The Clerk did not request representation by 
the appropriate U.S. Attorney, under 2 USC Sec. 118, because the House 
has the sole power of impeachment under the U.S. Constitution and 
because of the application of the doctrine under the Constitution of 
the separation of powers of the executive, legislative, and judicial 
branches of government.

Sec. 1.2 Where a federal court subpenaed in a criminal case certain 
    evidence gathered by the Committee on the Judiciary in an 
    impeachment inquiry, the House adopted a resolution granting such 
    limited access to the evidence, except executive session materials, 
    as would not violate the privileges of the House or its sole power 
    of impeachment under the U.S. Constitution.

    On Aug. 22, 1974,(4) Speaker Carl Albert, of Oklahoma, 
laid before the House certain subpenas issued by a U.S. District Court 
in a criminal case, requesting certain evidence gathered by the 
Committee on the Judiciary and its subcommittee on impeachment, in the 
inquiry into the conduct of President Richard Nixon. The House adopted 
House Resolution 1341, which granted such limited access to the 
evidence as would not violate the privileges or constitutional powers 
of the House. The resolution read as follows:
---------------------------------------------------------------------------
 4. 120 Cong. Rec. 30026, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

                                H. Res. 1341

        Whereas in the case of United States of America against John N. 
    Mitchell et al. (Criminal Case No. 74-110), pending in the United 
    States District Court for the District of Columbia, subpenas duces 
    tecum were issued by the said court and addressed to Representative 
    Peter W. Rodino, United States House of Representatives, and to 
    John Doar, Chief Counsel, House Judicial Subcommittee on 
    Impeachment, House of Representatives, directing them to appear as 
    witnesses before said court at 10:00 antemeridian on the 9th day of 
    September, 1974, and to bring with them certain and sundry papers 
    in the possession and under the control of the

[[Page 1949]]

    House of Representatives: Therefore be it
        Resolved, That by the privileges of this House no evidence of a 
    documentary character under the control and in the possession of 
    the House of Representatives can, by the mandate of process of the 
    ordinary courts of justice, be taken from such control or 
    possession but by its permission; be it further
        Resolved, That the House of Representatives under Article I, 
    Section 2 of the Constitution has the sole power of impeachment and 
    has the sole power to investigate and gather evidence to determine 
    whether the House of Representatives shall exercise its 
    constitutional power of impeachment; be it further
        Resolved, That when it appears by the order of the court or of 
    the judge thereof, or of any legal officer charged with the 
    administration of the orders of such court or judge, that 
    documentary evidence in the possession and under the control of the 
    House is needful for use in any court of justice, or before any 
    judge or such legal officer, for the promotion of justice, this 
    House will take such action thereon as will promote the ends of 
    justice consistently with the privileges and rights of this House; 
    be it further
        Resolved, That when said court determines upon the materiality 
    and the relevancy of the papers and documents called for in the 
    subpenas duces tecum, then the said court, through any of its 
    officers or agents, have full permission to attend with all proper 
    parties to the proceeding and then always at any place under the 
    orders and control of this House and take copies of all memoranda 
    and notes, in the files of the Committee on the Judiciary, of 
    interviews with those persons who subsequently appeared as 
    witnesses in the proceedings before the full Committee pursuant to 
    House Resolution 803, such limited access in this instance not 
    being an interference with the Constitutional impeachment power of 
    the House, and the Clerk of the House is authorized to supply 
    certified copies of such documents and papers in possession or 
    control of the House of Representatives that the court has found to 
    be material and relevant (except that under no circumstances shall 
    any minutes or transcripts of executive sessions, or any evidence 
    of witnesses in respect thereto, be disclosed or copied) and which 
    the court or other proper officer thereof shall desire, so as, 
    however, the possession of said papers, documents, and records by 
    the House of Representatives shall not be disturbed, or the same 
    shall not be removed from their place of file or custody under any 
    Members, officer, or employee of the House of Representatives; and 
    be it further
        Resolved, That a copy of these resolutions be transmitted to 
    the said court as a respectful answer to the subpenas 
    aforementioned.

Censure of Federal Civil Officers

Sec. 1.3 In the 72d Congress, the House amended a resolution abating 
    impeachment proceedings against a federal judge where the committee 
    report censured him for improper conduct, and voted to

[[Page 1950]]

    impeach him by adopting the resolution as amended.

    On Feb. 24, 1933, a resolution (H. Res. 387) was called up by Mr. 
Thomas D. McKeown, of Oklahoma, at the direction of the Committee on 
the Judiciary; the resolution stated that the evidence against U.S. 
District Court Judge Harold Louderback did not warrant impeachment. The 
committee report (H. Rept. No. 2065), censured the judge as follows:

        The committee censures the judge for conduct prejudicial to the 
    dignity of the judiciary in appointing incompetent receivers, for 
    the method of selecting receivers, for allowing fees that seem 
    excessive, and for a high degree of indifference to the interest of 
    litigants in receiverships.(5)
---------------------------------------------------------------------------
 5. 76 Cong. Rec. 4913, 4914, 72d Cong. 2d Sess. See, generally, 6 
        Cannon's Precedents Sec. 514, and Sec. Sec. 17.1, 17.2, infra.
---------------------------------------------------------------------------

    The House rejected the recommendation of the committee by adopting 
an amendment in the nature of a substitute impeaching the judge for 
misdemeanors in office. During debate on the resolution, Mr. Earl C. 
Michener, of Michigan, addressed remarks to the power of censure in 
relation to civil officers under the United States:

        Mr. Michener: Mr. Speaker, in answer to the gentleman from 
    Alabama, let me make this observation. The purpose of referring a 
    matter of this kind to the Committee on the Judiciary is to 
    determine whether or not in the opinion of the Committee on the 
    Judiciary there is sufficient evidence to warrant impeachment by 
    the House. If the Committee on the Judiciary finds those facts 
    exist, then the Committee on the Judiciary makes a report to the 
    House recommending impeachment, and that undoubtedly is privileged. 
    However, a custom has grown up recently in the Committee on the 
    Judiciary of including in the report a censure. I do not believe 
    that the constitutional power of impeachment includes censure. We 
    have but one duty, and that is to impeach or not to impeach. Today 
    we find a committee report censuring the judge. The resolution 
    before the House presented by a majority of the committee is 
    against impeachment. The minority members have filed a minority 
    report, recommending impeachment. I am making this observation with 
    the hope that we may get back to the constitutional power of 
    impeachment.

    Parliamentarian's Note: On several past occasions, the resolution 
reported to the House by the committee investigating impeachment has 
proposed the censure of the officer involved.(6) Such resolu
---------------------------------------------------------------------------
 6. See, for example, 3 Hinds' Precedents Sec. Sec. 2519, 2520.
            When a subcommittee report recommended against the 
        impeachment of Associate Judge William O. Douglas in the 91st 
        Congress, the minority views of Mr. Edward Hutchinson (Mich.) 
        indicated the view that Justice Douglas could have been 
        censured or officially rebuked for misconduct by the House (see 
        Sec. 14.16, infra).
---------------------------------------------------------------------------

[[Page 1951]]

tions were not submitted as privileged and were not considered by the 
House. Although censure of a Member by the House is a privileged 
matter,(7) censure of an executive official has not been 
held privileged for consideration by the House and has on occasion been 
held improper.(8)

---------------------------------------------------------------------------
 7. See 3 Hinds' Precedents Sec. Sec. 2649-2651.
            Members of the House are not subject to impeachment under 
        the Constitution (see Sec. 2, infra) but are subject to 
        punishment for disorderly behavior. See U.S. Const. art. I, 
        Sec. 5, clause 2.
 8. See 2 Hinds' Precedents Sec. Sec. 1569-1572.
            The issue whether a proposition to censure a federal civil 
        officer would be germane to a proposition for his impeachment 
        has not arisen, but it is not in order to amend a pending 
        privileged resolution by adding or substituting a matter not 
        privileged and not germane to the original proposition. 5 
        Hinds' Precedents Sec. 5810.
            See 6 Cannon's Precedents Sec. 236 for the ruling that a 
        proposition to censure a Member of the House is not germane to 
        a proposition for his expulsion. Speaker Frederick H. Gillett 
        (Mass.) ruled in that instance that although censure and 
        expulsion of a Member were both privileged propositions, they 
        were ``intrinsically'' different.
---------------------------------------------------------------------------