[Deschler's Precedents, Volume 3, Chapters 10 - 14]
[Chapter 14. Impeachment Powers]
[A. Generally]
[Â§ 2. Who May Be Impeached; Effect of Resignation]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1951-1955]
 
                               CHAPTER 14
 
                           Impeachment Powers
 
                              A. GENERALLY
 
Sec. 2. Who May Be Impeached; Effect of Resignation

    Article II, section 4 of the U.S. Constitution subjects the 
President, Vice President, and all civil officers of the United States 
to impeachment, conviction, and removal from office. It has been 
settled that a private citizen is not subject to the impeachment 
process except for offenses committed while a civil officer under the 
United States.(9)
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 9. 3 Hinds' Precedents Sec. Sec. 2315, 2007.
            A commissioner of the District of Columbia was held not to 
        be a civil officer subject to impeachment under the 
        Constitution. 6 Cannon's Precedents Sec. 548.
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    In one case, it was determined by the Senate that a U.S. Senator 
(William Blount [Tenn.]) was not a civil officer under article II, 
section 4, and the Senate disclaimed jurisdiction to try 
him.(10)
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10. 3 Hinds' Precedents Sec. Sec. 2310, 2316.
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    In view of the fact that the Constitution provides not only for 
automatic removal of an officer upon impeachment and conviction, but 
also for the disqualification from holding further office under the 
United States (art. I, Sec. 3, clause 7), the House and Senate have 
affirmed their respective power to impeach and try an accused who has 
resigned.(11)
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11. The question whether the House may impeach a civil officer who has 
        resigned is a constitutional issue for the House and not the 
        Chair to decide (see Sec. 2.4, infra).

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[[Page 1952]]

    The latter question first arose in the Blount case, where the 
Senate expelled Senator Blount after his impeachment by the House but 
before articles had been drafted and before his trial in the Senate had 
begun. The House proceeded to adopt articles, and it was conceded in 
the Senate that a person impeached could not escape punishment by 
resignation; the Senate decided that it had no jurisdiction, however, 
to try the former Senator since he had not been a civil officer for 
purposes of impeachment.(12)
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12. 3 Hinds' Precedents Sec. Sec. 2317, 2318.
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    William W. Belknap, Secretary of War, resigned from office before 
his impeachment by the House and before his trial in the Senate. The 
House and Senate debated the power of impeachment at length and 
determined that the former Secretary was amenable to impeachment and 
trial; at the conclusion of trial the respondent was acquitted of all 
charges by the Senate.(13)
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13. 3 Hinds' Precedents Sec. Sec. 2007, 2467.
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                            Cross References
Members of Congress not subject to impeachment but to punishment, 
    censure, or expulsion, see Ch. 12, supra.
Powers of the House as related to the executive generally, see Ch. 13, 
    supra.                          -------------------

Impeachment Proceedings Following Resignation

Sec. 2.1 President Richard Nixon having resigned following the decision 
    of the Committee on the Judiciary to report to the House 
    recommending his impeachment, the report without an accompanying 
    resolution of impeachment was submitted to the House, and further 
    proceedings were discontinued.

    On Aug. 20, 1974, Peter W. Rodino, Jr., of New Jersey, Chairman of 
the Committee on the Judiciary, submitted a privileged report (H. Rept. 
No. 93-1305) recommending the impeachment of President Nixon, following 
a full investigation by the committee, and after its consideration and 
adoption of articles of impeachment.
    The committee had previously (in July 1974) decided to recommend 
articles of impeachment against President Nixon. The President resigned 
his office shortly thereafter--on Aug. 9, 1974--by submitting his 
written resignation to the office of the Secretary of State. 
(14)
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14. 3 USC Sec. 20 provides that the only evidence of the resignation of 
        the office of the President of the United States shall be an 
        instrument in writing, signed, and delivered into the office of 
        the Secretary of State.

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[[Page 1953]]

    Upon submission of the report of the Committee on the Judiciary, 
Speaker Carl Albert, of Oklahoma, ordered it referred to the House 
Calendar. No separate accompanying resolution of impeachment was 
reported to the House.
    The House adopted without debate a resolution (H. Res. 1333), 
offered by Mr. Thomas P. O'Neill, Jr., of Massachusetts, under 
suspension of the rules on Aug. 20, accepting the report. No further 
action was taken on the proposed impeachment of the President. 
(15)
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15. 120 Cong. Rec. 29361, 29362, 93d Cong. 2d Sess. For the text of H. 
        Res. 1333 and the events surrounding its adoption, see 
        Sec. 15.13, infra.
            For a memorandum prepared for Senate Majority Leader 
        Michael J. Mansfield (Mont.) and inserted in the Record, 
        concluding that Congress could impeach and try the President 
        after he had resigned, see 120 Cong. Rec. 31346-48, 93d Cong. 
        2d Sess., Sept. 17, 1974.
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Sec. 2.2 A federal judge having resigned from the bench pending his 
    impeachment trial in the Senate, the House adopted a resolution 
    instructing the managers to advise the Senate that the House 
    declined to further prosecute charges of impeachment, and the 
    Senate dismissed the impeachment proceedings.

    On Dec. 11, 1926, the House adopted the following resolution in 
relation to the impeachment proceedings against Judge George W. 
English:

        Resolved, That the managers on the part of the House of 
    Representatives in the impeachment proceedings now pending in the 
    Senate against George W. English, late judge of the District Court 
    of the United States for the Eastern District of Illinois, be 
    instructed to appear before the Senate, sitting as a court of 
    impeachment in said cause, and advise the Senate that in 
    consideration of the fact that said George W. English is no longer 
    a civil officer of the United States, having ceased to be a 
    district judge of the United States for the eastern district of 
    Illinois, the House of Representatives does not desire further to 
    urge the articles of impeachment heretofore filed in the Senate 
    against said George W. English.(16)
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16. 68 Cong. Rec. 297, 69th Cong. 2d Sess.
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    On Dec. 13, 1926, the Senate adjourned sine die as a court of 
impeachment after agreeing to the following order, which was messaged 
to the House:

        Ordered, That the impeachment proceedings against George W. 
    English, late judge of the District Court of the United States for 
    the Eastern District of Illinois, be and the same are, duly 
    dismissed.(17)
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17. Id. at p. 344.

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[[Page 1954]]

Sec. 2.3 The House discontinued further investigation and proceedings 
    of impeachment against a cabinet official who had resigned his 
    post, after his nomination and confirmation to hold another 
    governmental position.

    On Feb. 13, 1932, the House adopted House Resolution 143 offered by 
Hatton W. Sumners, of Texas, Chairman of the Committee on the 
Judiciary. The resolution, which discontinued certain impeachment 
proceedings due to resignation of the officer charged, read as follows:

        Whereas Hon. Wright Patman, Member of the House of 
    Representatives, filed certain impeachment charges against Hon. 
    Andrew W. Mellon, Secretary of the Treasury, which were referred to 
    this committee; and
        Whereas pending the investigation of said charges by said 
    committee, and before said investigation had been completed, the 
    said Hon. Andrew W. Mellon was nominated by the President of the 
    United States for the post of ambassador to the Court of St. James 
    and the said nomination was duly confirmed by the United States 
    Senate pursuant to law, and the said Andrew W. Mellon has resigned 
    the position of Secretary of the Treasury: Be it
        Resolved by this committee, That the further consideration of 
    the said charges made against the said Andrew W. Mellon, as 
    Secretary of the Treasury, be, and the same are hereby, 
    discontinued.

                               Minority Views

        We cannot join in the majority views and findings. While we 
    concur in the conclusions of the majority that section 243 of the 
    Revised Statutes, upon which the proceedings herein were based, 
    provides for action in the nature of an ouster proceeding, it is 
    our view that the Hon. Andrew W. Mellon, the former Secretary of 
    the Treasury, having removed himself from that office, no useful 
    purpose would be served by continuing the investigation of the 
    charges filed by the Hon. Wright Patman. We desire to stress that 
    the action of the undersigned is based on that reason alone, 
    particularly when the prohibition contained in said section 243 is 
    not applicable to the office now held by Mr. Mellon.(18)
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18. 75 Cong. Rec. 3850, 72d Cong. 1st Sess.
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                    Fiorello H. LaGuardia.
                    Gordon Browning.
                    M. C. Tarver.
                    Francis B. Condon.

Sec. 2.4 Where a point of order was raised that a resolution of 
    impeachment was not privileged because it called for the 
    impeachment of persons no longer civil officers under the United 
    States, the Speaker stated that the question was a constitutional 
    issue for the House and not the Chair to decide.

    On May 23, 1933, Mr. Louis T. McFadden, of Pennsylvania, rose to a 
question of constitutional

[[Page 1955]]

privilege and offered a resolution (H. Res. 158) impeaching numerous 
members and former members of the Federal Reserve Board. During the 
reading of the resolution, a point of order against it was raised by 
Mr. Carl E. Mapes, of Michigan:

        I wish to submit the question to the Speaker as to whether or 
    not a person who is not now in office is subject to impeachment? 
    This resolution of the gentleman from Pennsylvania refers to 
    several people who are no longer holding any public office. They 
    are not now at least civil officers. The Constitution provides that 
    the ``President, Vice President, and all civil officers shall be 
    removed from office on impeachment'', and so forth. I have had no 
    opportunity to examine the precedents since this matter came up, 
    but it occurs to me that the resolution takes in too much territory 
    to make it privileged.

    Speaker Henry T. Rainey, of Illinois, ruled as follows:

        That is a constitutional question which the Chair cannot pass 
    upon, but should be passed upon by the House.

    The resolution was referred on motion to the Committee on the 
Judiciary.(19)
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19. 77 Cong. Rec. 4055, 73d Cong. 1st Sess.
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