[Deschler's Precedents, Volume 3, Chapters 10 - 14]
[Chapter 14. Impeachment Powers]
[A. Generally]
[§ 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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