[Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 108th Congress]
[108th Congress]
[House Document 107-284]
[Jeffersons Manual of ParliamentaryPractice]
[Pages 313-330]
[From the U.S. Government Printing Office, www.gpo.gov]


 

* * * * *
                         sec. liii--impeachment



Sec. 601. Jurisdiction of Lords and Commons as 
to impeachments.

  These are the  provisions of the Constitution of the United States 
on the subject of impeachments. The following is a sketch of some of the 
principles and practices of England on the same subject:



[[Page 314]]

1619, 1641; 4 Blackst., 25; 9 Seld., 1656; 73 Seld., 1604-18.
  Jurisdiction. The Lords can not impeach any to themselves, nor join in 
the accusation, because they are the judges. Seld. Judic. in Parl., 12, 
63. Nor can they proceed against a commoner but on complaint of the 
Commons. Ib., 84. The Lords may not, by the law, try a commoner for a 
capital offense, on the information of the King or a private person, 
because the accused is entitled to a trial by his peers generally; but 
on accusation by the House of Commons, they may proceed against the 
delinquent, of whatsoever degree, and whatsoever be the nature of the 
offense; for there they do not assume to themselves trial at common law. 
The Commons are then instead of a jury, and the judgment is given on 
their demand, which is instead of a verdict. So the Lords do only judge, 
but not try the delinquent. Ib., 6, 7. But Wooddeson denies that a 
commoner can now be charged capitally before the Lords, even by the 
Commons; and cites Fitzharris's case, 1681, impeached of high treason, 
where the Lords remitted the prosecution to the inferior court. 8 Grey's 
Deb., 325-7; 2 Wooddeson, 576, 601; 3 Seld., 1604, 1610, 1618,




Sec. 602. Parliamentary law as to accusation 
in impeachment.

  Accusation. The  Commons, as the grand inquest of the nation, becomes 
suitors for penal justice. 2 Wood., 597; 6 Grey, 356. The general course 
is to pass a resolution containing a criminal charge against the 
supposed delinquent, and then to direct some member to impeach him by 
oral accusation, at the bar of the House of Lords, in the name of the 
Commons. The person signifies that the articles will be exhibited, and 
desires that the delinquent may be sequestered from his seat, or be 
committed, or that the peers will take order for his appearance. Sachev. 
Trial, 325; 2 Wood., 602, 605; Lords' Journ., 3 June, 1701; 1 Wms., 616; 
6 Grey, 324.



[[Page 315]]

referred, on motion, to a select committee (III, 1736). On September 9, 
1998, an independent counsel transmitted to the House under 28 U.S.C. 
595(c) a communication containing evidence of alleged impeachable 
offenses by the President. The House adopted a privileged 
resolution reported by the Committee on Rules referring the 
communication to the Committee on the Judiciary, restricting Members' 
access to the communication, and restricting access to committee 
meetings and hearings on the communication (H. Res. 525, Sept. 11, 1998, 
p. ----). Later, the House adopted a privileged resolution reported by 
the Committee on the Judiciary authorizing an impeachment inquiry by 
that committee (H. Res. 581, Oct. 8, 1998, p. ----). The authority to 
appoint an independent counsel under 28 U.S.C. 573 expired 
on June 30, 1999.


Sec. 603. Inception of impeachment proceedings in the 
House.

  In the  House there are various methods of setting an impeachment in 
motion: by charges made on the floor on the responsibility of a Member 
or Delegate (II, 1303; III, 2342, 2400, 2469; VI, 525, 526, 528, 535, 
536); by charges preferred by a memorial, which is usually referred to a 
committee for examination (III, 2364, 2491, 2494, 2496, 2499, 2515; VI, 
543); by a resolution dropped in the hopper by a Member and referred to 
a committee (Apr. 15, 1970, p. 11941; Oct. 23, 1973, p. 34873); by a 
message from the President (III, 2294, 2319; VI, 498); by charges 
transmitted from the legislature of a State (III, 2469) or territory 
(III, 2487) or from a grand jury (III, 2488); or from facts developed 
and reported by an investigating committee of the House (III, 2399, 
2444). In the 93d Congress, the Vice President sought to initiate an 
investigation by the House of charges against him of possibly 
impeachable offenses. The Speaker and the House took no action on the 
request since the matter was pending in the courts and the offenses did 
not relate to activities during the Vice President's term of office 
(Sept. 25, 1973, p. 31368; III, 2510 (wherein the Committee on the 
Judiciary, to which the matter had been referred by privileged 
resolution, reported that the Vice President could not be impeached for 
acts or omissions committed prior to his term of office)). On the other 
hand, in 1826 the Vice President's request that the House investigate 
charges against his prior official conduct as Secretary of War was




Sec. 604. A proposition to impeach a question of 
privilege.

  A direct  proposition to impeach is a question of high privilege in 
the House and at once supersedes business otherwise in order under the 
rules governing the order of business (III, 2045-2048, 2051, 2398; VI, 
468, 469; July 22, 1986, p. 17294; Aug. 3, 1988, p. 20206; May 10, 1989, 
p. 8814; Sept. 23, 1998, p. ----; see Deschler, ch. 14, 
Sec. 8). It may not even be superseded by an election case, which 
is also a matter of high privilege (III, 2581). It does not lose its 
privilege from the fact that a similar proposition has been made at a 
previous time during the same session of Congress (III, 2408), previous 
action of the House not affecting it (III, 2053). As such, a report of 
the Committee on the Judiciary accompanying an impeachment resolution is 
filed from the floor as privileged (Dec. 17, 1998, p. ----), and is 
called up as privileged (Dec. 18, 1998, p. ----). The addition of new 
articles of impeachment offered by the managers but not reported by 
committee are also privileged (III, 2401), as is a proposition to refer 
to committee the papers and testimony in an impeachment of the preceding 
Congress (V, 7261). To a privileged resolution of impeachment, an 
amendment proposing instead censure, which is not privileged, was held 
not germane (Dec. 19, 1998, p. ----). On several occasions the Committee 
on the Judiciary, having been referred a question of impeachment, 
reported a recommendation that impeachment was not warranted and, 
thereafter, called up the report as a question of privilege (Deschler, 
ch. 14, Sec. 1.3). Under 28 U.S.C. 596(a) an independent counsel 
appointed to investigate the President may be impeached; and a 
resolution impeaching such independent counsel constitutes a question of 
the privileges of the House under rule IX (Sept. 23, 1998, p. ----).



[[Page 316]]

and to carry out other responsibilities (Jan. 3, 1989, p. 84; Dec. 19, 
1998, p. ----; Jan. 6, 1999, p. ----), and replacing an excused manager 
(Feb. 7, 1989, p. 1726); but a resolution simply proposing an 
investigation, even though impeachment may be a possible consequence, is 
not privileged (III, 2050, 2546; VI, 463).
  Propositions relating to an impeachment already made also are 
privileged (III, 2400, 2402, 2410; July 22, 1986, p. 17294; Dec. 2, 
1987, p. 33720; Aug. 3, 1988, p. 20206), such as resolutions providing 
for selection of managers of an impeachment (VI, 517; Dec. 19, 1998, p. 
----), proposing abatement of impeachment proceedings (VI, 514), 
reappointing managers for impeachment proceedings continued in the 
Senate from the previous Congress (Jan. 3, 1989, p. 84; Jan. 6, 1999, p. 
----), empowering managers to hire special legal and clerical personnel 
and providing for their pay,

  Where a resolution of investigation positively proposes impeachment or 
suggests that end, it has been admitted as of privilege (III, 2051, 
2052, 2401, 2402), such as a resolution reported by the Committee on the 
Judiciary authorizing an impeachment inquiry by that committee and 
investing the committee with special investigative authorities to 
facilitate the inquiry (III, 2029; VI, 498, 528, 549; Deschler, ch. 14, 
Sec. Sec. 5.8, 6.2; H. Res. 581, Oct. 8, 1998, p. ----). A committee to 
which has been referred privileged resolutions for the impeachment of an 
officer may call up as privileged resolutions incidental to 
consideration of the impeachment question, including conferral of 
subpoena authority and funding of the investigation from the contingent 
fund (now referred to as ``applicable accounts of the House described in 
clause 1(i)(1) of rule X'') (VI, 549; Feb. 6, 1974, p. 2349). Similarly, 
a resolution authorizing depositions by committee counsel in an 
impeachment inquiry is privileged under rule IX as incidental to 
impeachment (Speaker Wright, Oct. 3, 1988, p. 27781).



Sec. 605. Investigation of impeachment 
charges.

  The impeachment  having been made on the floor by a Member (III, 2342, 2400; 
VI, 525, 526, 528, 535, 536), or charges suggesting impeachment having 
been made by memorial (III, 2495, 2516, 2520; VI, 552), or even 
appearing through common fame (III, 2385, 2506), the House has at times 
ordered an investigation at once. At other times it has refrained from 
ordering investigation until the charges had been examined by a 
committee (III, 2364, 2488, 2491, 2492, 2494, 2504, 2513). Under the 
later practice, resolutions introduced through the hopper that directly 
call for the impeachment of an officer have been referred to the 
Committee on the Judiciary, while resolutions calling for an 
investigation by that committee or by a select committee with a view 
toward impeachment have been referred to the Committee on Rules (Oct. 
23, 1973, p. 34873). Upon receipt of a communication from an independent 
counsel transmitting to the House under 28 U.S.C. 595(c) a communication 
containing evidence of alleged impeachable offenses by the President, 
the House adopted a resolution reported by the Committee on Rules 
referring the communication to the Committee on the Judiciary to conduct 
a review (H. Res. 525, 106th Cong., Sept. 11, 1998, p. ----). Later, the 
House adopted a privileged resolution reported by the Committee on the 
Judiciary authorizing an impeachment inquiry by that committee (H. Res. 
581, Oct. 8, 1998, p. ----).



[[Page 317]]

made its inquiry ex parte (III, 2319, 2343, 2366, 2385, 2403, 2496, 
2511); but in the later practice the sentiment of committees has been in 
favor of permitting the accused to explain, present witnesses, cross-
examine (III, 2445, 2471, 2518), and be represented by counsel (III, 
2470, 2501, 2511, 2516; 93d Cong., Aug. 20, 1974, p. 29219; H. Rept. 
105-830, Dec. 16, 1998). The Committee on the Judiciary having been 
directed by the House to investigate whether sufficient grounds existed 
for the impeachment of President Nixon, and the President having 
resigned following the decision of that committee to recommend his 
impeachment to the House, the chairman of the committee submitted from 
the floor as privileged the committee's report containing the articles 
of impeachment approved by the committee but without an accompanying 
resolution of impeachment. The House thereupon adopted a resolution (1) 
taking notice of the committee's action on a resolution and Articles of 
Impeachment and of the President's resignation; (2) accepting the report 
and authorizing its printing, with additional views; and (3) commending 
the chairman and members of the committee for their efforts (Aug. 20, 
1974, p. 29361).


Sec. 606. Procedure of committee in 
investigating.

  The House has  always examined the charges by its own committee before 
it has voted to impeach (III, 2294, 2487, 2501). This committee has 
sometimes been a select committee (III, 2342, 2487, 2494), sometimes a 
standing committee (III, 2400, 2409). In some instances the committee 
has




Sec. 606a. Procedure of House in 
considering.

  During the  pendency of an impeachment resolution, remarks in debate 
may include references to personal misconduct on the part of the 
President but may not include language generally abusive toward the 
President and may not include comparisons to the personal conduct of 
sitting Members of the House or Senate (Dec. 18, 1998, p. ----). A 
resolution setting forth four separate articles of impeachment may be 
divided among the articles (Dec. 19, 1998, p. ----).



[[Page 318]]

into a single indivisible privileged resolution (H. Res. 614, Dec. 19, 
1998, p. ----; H. Res. 10, Jan. 6, 1999, p. ----).


Sec. 607. Impeachment carried to the 
Senate.

  Its committee  on investigation having reported, the House may vote the 
impeachment (III, 2367, 2412; VI, 500, 514; Mar. 2, 1936, pp. 3067-91), 
and, after having notified the Senate by message (III, 2413, 2446), may 
direct the impeachment to be presented at the bar of the Senate by a 
single Member (III, 2294), or by two (III, 2319, 2343, 2367), or five 
Members (III, 2445) or nine (July 22, 1986, p. 17306) or 13 (Dec. 19, 
1998, p. ----). These Members in two notable cases represented the 
majority party alone (e.g., Dec. 19, 1998, p. ----), but ordinarily 
include representation of the minority party (III, 2445, 2472, 2505). 
Under early practice the House elected managers by ballot (III, 2300, 
2323, 2345, 2368, 2417). In two instances the Speaker appointed the 
managers on behalf of the House pursuant to an order of the House (III, 
2388, 2475). Since 1912 the House has adopted a resolution appointing 
managers. In the later practice the House considers together the 
resolution and articles of impeachment (VI, 499, 500, 514; Mar. 2, 1936, 
pp. 3067-91) and following their adoption adopts resolutions electing 
managers to present the articles before the Senate, notifying the Senate 
of the adoption of articles and election of managers, and authorizing 
the managers to prepare for and to conduct the trial in the Senate (VI, 
500, 514, 517; Mar. 6, 1936, pp. 3393, 3394; July 22, 1986, p. 17306; 
Aug. 3, 1988, p. 20206). These privileged incidental resolutions may be 
merged





Sec. 608. Impeachment process in the 
Senate.

  Process. If the  party do not appear, proclamations are to be issued, giving 
him a day to appear. On their return they are strictly examined. If any 
error be found in them, a new proclamation issues, giving a short day. 
If he appear not, his goods may be arrested, and they may proceed. Seld. 
Jud. 98, 99.




Sec. 608a. Senate impeachment proceedings against 
President Clinton.

  Under  an order of the Senate, the Secretary of the Senate 
informed the House and the Chief Justice that it was ready to receive 
the House managers for the purpose of exhibiting articles of impeachment 
against President Clinton (Jan. 6, 1999, p. ----). At the appointed hour 
the House managers were announced and escorted into the Senate chamber 
by the Senate Sergeant-at-Arms (Jan. 7, 1999, p. ----). The managers 
presented the articles of impeachment by reading two resolutions as 
follows: (1) the appointment of managers (H. Res. 10, Jan. 7, 1999, p. 
----); and (2) the two articles of impeachment (H. Res. 611, Jan. 7, 
1999, p. ----). Thereupon, the managers requested the Senate take order 
for trial (Jan. 7, 1999, p. ----).



[[Page 319]]

or to present any evidence not in the record. The resolution further 
provided that, if the motion to call witnesses were adopted, the 
witnesses would first be deposed and then the Senate would decide which 
witnesses should testify. It further provided that if the Senate failed 
to dismiss the case, the parties would proceed to present evidence. 
Finally, the resolution directed the Senate to vote on each article of 
impeachment at the conclusion of the deliberations. The evidentiary 
record (summons, answer, replies, and trial briefs) was printed in the 
Record by unanimous consent (Jan. 14, 1999, p. ----). Pursuant to the 
previous order of the Senate (S. Res. 16, Jan. 8, 1999, p. ----), the 
House managers were recognized for 24 hours to present their case in 
support of conviction and removal of President Clinton (Jan. 14, 1999, 
p. ----); counsel for the President was then recognized for 24 hours to 
present the President's defense (Jan. 19, 1999, p. ----); and Senators 
submitted questions in writing of either the House managers or the 
President's counsel (which were read by the Chief Justice, alternating 
between parties) for a period not to exceed 16 hours (Jan. 22, 1999, p. 
----). The Chief Justice ruled that a House manager could not object to 
a question although he could object to an answer (Jan. 22, 1999, p. ----
; Jan. 23, 1999, p. ----). The Senate adopted a motion to consider a 
motion to dismiss in executive session (Jan. 25, 1999, p. ----), and the 
motion to dismiss was defeated (Jan. 27, 1999, p. ----). The Senate 
adopted a motion to consider a motion of the House managers to subpoena 
witnesses in executive session (Jan. 26, 1999, p. ----). The Senate 
adopted that motion, which: (1) authorized the issuance of subpoenas for 
depositions of three witnesses; (2) admitted miscellaneous documents 
into the trial record; and (3) petitioned the Senate to request the 
appearance of President Clinton at a deposition (Jan. 26, 1999, p. ----
).
  The Senate adopted a resolution governing the initial impeachment 
proceedings of President Clinton (S. Res. 16, Jan. 8, 1999, p. ----). 
Later it adopted a second resolution governing the remaining proceedings 
(S. Res. 30, Jan. 28, 1999, p. ----). The first resolution issued the 
summons in the usual form. It also provided a timetable for (1) the 
filing of an answer by the President; (2) the filing of a reply by the 
House, together with the record consisting of publicly available 
materials that had been submitted to or produced by the House Judiciary 
Committee (the resolution further directed that the record be admitted 
into evidence, printed, and made available to Senators); (3) the filing 
of a trial brief by the House; (4) the filing of any motions permitted 
under the rules of impeachment (except for motions to subpoena witnesses 
or to present evidence not in the record); (5) the filing of responses 
to any such motions; (6) the filing of a trial brief by the President; 
(7) the filing of a rebuttal brief by the House; and (8) arguments on 
such motions. The resolution then directed the Senate to dispose of any 
such motions and established a further timetable for (1) the House to 
make its presentation in support of the articles of impeachment (such 
argument to be confined to the record); (2) the President to make his 
presentation in opposition to the articles of impeachment; and (3) the 
Senators to question the parties. The resolution directed the Senate, 
upon completion of that phase of the proceedings, to dispose of a motion 
to dismiss, and if defeated, to dispose of a motion to subpoena 
witnesses


[[Page 320]]

4, 1999, p. ----). The Senate rejected the portion of the divided motion 
that would have authorized a subpoena for the appearance of a named 
witness (Feb. 4, 1999, p. ----). During debate on the motion, the 
Senate, by unanimous consent, permitted the House managers and counsel 
for the President to make references to videotaped oral depositions 
(Feb. 4, 1999, p. ----). The Senate rejected two additional motions as 
follows: (1) a motion to proceed directly to closing arguments and an 
immediate vote on the articles of impeachment (Feb. 4, 1999, p. ----); 
and (2) a motion that the House managers provide written notice to 
counsel for the President by a time certain of those portions of 
videotaped deposition testimony they planned to use during their 
evidentiary presentation or during closing arguments (Feb. 4, 1999, p. 
----). By unanimous consent the Senate printed certain deposition 
transcripts in the Record and transmitted to the House managers and the 
counsel for the President deposition transcripts and videotapes (Feb. 4, 
1999, p. ----). The Chief Justice held inadmissible a portion of a 
videotaped deposition not entered as evidence into the Senate record 
(other portions of which were admitted under an order of the Senate), 
and a unanimous consent request nevertheless to admit that portion of a 
deposition was objected to (Feb. 6, 1999, p. ----). After closing 
arguments, the Senate adopted a motion to consider the articles of 
impeachment in closed session (Feb. 9, 1999, p. ----). After closed 
deliberations the Senate Clerk read the articles of impeachment against 
President Clinton in open session, and each Senator voted ``guilty'' or 
``not guilty'' on each article (Feb. 12, 1999, p. ----). By votes of 45-
55 and 50-50 respectively, the Senate adjudged President Clinton not 
guilty on each article of impeachment (Feb. 12, 1999, p. ----). The 
Senate communicated to the House and the Secretary of State the judgment 
of the Senate (Feb. 12, 1999, p. ----).
  The Senate subsequently adopted a resolution governing the remaining 
impeachment proceedings as follows: (1) establishment of a timetable for 
conducting and reviewing depositions, resolving any objections made 
during the depositions, and considering motions to admit any portions of 
the depositions into evidence; (2) consideration of motions for 
additional discovery (if made by the two Leaders jointly); (3) 
disposition of motions governing the presentation of evidence or 
witnesses before the Senate and motions by the President's counsel 
(specifically precluding a motion to reopen the record and specifically 
permitting a motion to allow final deliberations in open session); (4) 
establishment of a timetable to vote on the articles of impeachment; and 
(5) authorization to issue subpoenas to take certain depositions and to 
establish procedures for conducting depositions (S. Res. 30, Jan. 28, 
1999, p. ----). The Senate adopted two parts of a divided motion as 
follows: (1) permitting the House managers to admit transcripts and 
videotapes of oral depositions into evidence (Feb. 4, 1999, p. ----); 
and (2) permitting the parties to present before the Senate for an 
equally divided specified period of time portions of videotapes or oral 
depositions admitted into evidence, having first rejected a preemptive 
motion to restrict the House managers' presentation of evidence to 
written transcripts (Feb.


  See S. Doc. 93-102, ``Procedure and Guidelines for Impeachment Trials 
in the United States Senate,'' for precedents relating to the conduct of 
Senate impeachments.




Sec. 609. Exhibition and form of 
articles.

  Articles. The accusation  (articles) of the Commons is substituted in place of an 
indictment. Thus, by the usage of Parliament, in impeachment for writing 
or speaking, the particular words need not be specified. Sach. Tr., 325; 
2 Wood., 602, 605; Lords' Journ., 3 June, 1701; 1 Wms., 616.



[[Page 321]]

p. 29126; Jan. 7, 1999, p. ----). The managers, who are elected by the 
House (III, 2300, 2345, 2417, 2448; VI, 500, 514, 517; Mar. 2, 1936, pp. 
3393, 3394) or appointed by the Speaker (III, 2388, 2475), carry the 
articles in obedience to a resolution of the House (III, 2417, 2419, 
2448) to the bar of the Senate (III, 2420, 2449, 2476), the House having 
previously informed the Senate (III, 2419, 2448) and received a message 
informing them of the readiness of the latter body to receive the 
articles (III, 2078, 2325, 2345; Aug. 6, 1986, p. 19335; Jan. 6, 1999, 
p. ----). Having exhibited the articles the managers return and report 
verbally to the House (III, 2449, 2476).
  Having delivered the impeachment, the committee returns to the House 
and reports verbally (III, 2413, 2446; VI, 501). Formerly, the House 
exhibited its articles after the impeachment had been carried to the bar 
of the Senate; in the later practice, the resolution and articles of 
impeachment have been considered together and exhibited simultaneously 
in the Senate by the managers (VI, 501, 515; Mar. 10, 1936, pp. 3485-88; 
Oct. 7, 1986,

  The articles in the Belknap impeachment were held sufficient, although 
attacked for not describing the respondent as one subject to impeachment 
(III, 2123). In the proceedings against Judge Ritter, objections to the 
articles of impeachment, on the ground that they duplicated and 
accumulated separate offenses, were overruled (Apr. 3, 1936, p. 4898; 
Apr. 17, 1936, p. 5606). These articles are signed by the Speaker and 
attested by the Clerk (III, 2302, 2449), and in form approved by the 
practice of the House (III, 2420, 2449, 2476).

  Articles of impeachment which have been exhibited to the Senate may be 
subsequently modified or amended by the House (VI, 520; Mar. 30, 1936, 
pp. 4597-99), and a resolution proposing to amend articles of 
impeachment previously adopted by the House is privileged for 
consideration when reported by the managers on the part of the House 
(VI, 520; Mar. 30, 1936, p. 4597).


  For discussion of substantive charges contained in articles of 
impeachment and the constitutional grounds for impeachment, see 
Sec. 175, supra (accompanying Const., art. II, sec. 4). For a discussion 
of the presentation of the House managers in support of the impeachment 
of President Clinton, and related matters, see Sec. 608a, supra.


[[Page 322]]

379. On a misdemeanor, his appearance may be in person, or he may answer 
in writing, or by attorney. Seld. Jud., 100. The general rule on 
accusation for a misdemeanor is, that in such a state of liberty or 
restraint as the party is when the Commons complain of him, in such he 
is to answer. Ib., 101. If previously committed by the commons, he 
answers as a prisoner. But this may be called in some sort judicium 
parium suorum. Ib. In misdemeanors the party has a right to counsel by 
the common law, but not in capital cases. Seld. Jud., 102, 105.



Sec. 610. Parliamentary law as to appearance 
of respondent.

  Appearance. If he  appear, and the case be capital, he answers in custody; 
though not if the accusation be general. He is not to be committed but 
on special accusations. If it be for a misdemeanor only, he answers, a 
lord in his place, a commoner at the bar, and not in custody, unless, on 
the answer, the Lords find cause to commit him, till he finds sureties 
to attend, and lest he should fly. Seld. Jud., 98, 99. A copy of the 
articles is given him, and a day fixed for his answer. T. Ray.; 1 
Rushw., 268; Fost., 232; 1 Clar. Hist. of the Reb.,




Sec. 611. Requirements of the Senate as to 
appearance of respondent.

  This paragraph  of the parliamentary law is largely obsolete 
so far as the practice of the House and the Senate are concerned. The 
accused may appear in person or by attorney (III, 2127, 2349, 2424), and 
take the stand in his own behalf (VI, 511, 524; Apr. 11, 1936, pp. 5370-
86; Oct. 7, 1986, p. 29149), or he may not appear at all (III, 2307, 
2333, 2393). In case he does not appear the House does not ask that he 
be compelled to appear (III, 2308), but the trial proceeds as on a plea 
of ``not guilty.'' It has been decided that the Senate has no power to 
take into custody the body of the accused (III, 2324, 2367). The writ of 
summons to the accused recites the articles and notifies him to appear 
at a fixed time and place and file his answer (III, 2127). In all cases 
respondent may appear by counsel (III, 2129), and in one trial, when a 
petition set forth that respondent was insane, the counsel of his son 
was admitted to be heard and present evidence in support of the 
petition, but not to make argument (III, 2333). For a discussion of 
answers, arguments, and presentations of the respondent in the Clinton 
impeachment proceedings, see Sec. 608a, supra.



[[Page 323]]

quiry resulting in the conclusion that the Senate had no power to take 
into custody the body of the accused (III, 2324, 2367).

  The chairman of the committee impeaches at the bar of the Senate by 
oral accusation (III, 2413, 2446, 2473), and the managers for the House 
attend in the Senate after the articles have been exhibited and demand 
that process issue for the attendance of respondent (III, 2451, 2478), 
after which they return and report verbally to the House (III, 2423, 
2451; VI, 501). The Senate thereupon issue a writ of summons, fixing the 
day of return (III, 2423, 2451; S. Res. 16, Jan. 8, 1999, p. ----); and 
in a case wherein the respondent did not appear by person or attorney 
the Senate published a proclamation for him to appear (III, 2393). But 
the respondent's goods were not attached. In only one case has the 
parliamentary law as to sequestration and committal been followed (III, 
2118, 2296), later in




Sec. 612. Answer of respondent.

  Answer. The  answer need not 
observe great strictness of the form. He may plead guilty as to part, 
and defend as to the residue; or, saving all exceptions, deny the whole 
or give a particular answer to each article separately. 1 Rush., 274; 2 
Rush., 1374; 12 Parl. Hist., 442; 3 Lords' Journ., 13 Nov., 1643; 2 
Wood., 607. But he cannot plead a pardon in bar to the impeachment. 2 
Wood., 615; 2 St. Tr., 735.


  In the Senate proceedings of the impeachment of President Andrew 
Johnson, the answer of the President took up the articles one by one, 
denying some of the charges, admitting others but denying that they set 
forth impeachable offenses, and excepting to the sufficiency of others 
(III, 2428). The form of this answer was commented on during preparation 
of the replication in the House (III, 2431). In the Senate proceedings 
on the impeachment of President Clinton, the answer of the President 
also took up the articles one by one, denying some of the charges and 
admitting others but denying that they set forth impeachable offenses 
(Jan. 14, 1999, p. ----). Blount and Belknap demurred to the charges on 
the ground that they were not civil officers within the meaning of the 
Constitution (III, 2310, 2453), and Swayne also raised questions as to 
the jurisdiction of the Senate (III, 2481). The answer is part of the 
pleadings, and exhibits in the nature of evidence may not properly be 
attached thereto (III, 2124). The answer of the respondent in 
impeachment proceedings is messaged to the House and subsequently 
referred to the managers on the part of the House (VI, 506; Apr. 6, 
1936, p. 5020; Sept. 9, 1986, p. 22317).


  For a chronology of arguments and presentations of the respondent in 
the Clinton impeachment proceedings, see Sec. 608a, supra.




Sec. 613. Other pleadings.

  Replication, rejoinder,  &c. There 
may be a replication, rejoinder, &c. Sel. Jud., 114; 8 Grey's Deb., 233; 
Sach. Tr., 15; Journ. H. of Commons, 6 March, 1640-1.



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there was objection to this and the Senate barely permitted it. In 
another case respondent interposed a plea as to jurisdiction of offenses 
charged in certain articles, but declined to admit that it was a 
demurrer with the admissions pertinent thereto (III, 2125, 2431). In the 
Belknap trial the House was sustained in averring in pleadings as to 
jurisdiction matters not averred in the articles (III, 2123). The right 
of the House to allege in the replication matters not touched in the 
articles has been discussed (III, 2457). In the Louderback (VI, 522) and 
Ritter (Apr. 6, 1936, p. 4971) impeachment proceedings, the managers on 
the part of the House prepared and submitted the replication to the 
Senate without its consideration by the House, contrary to former 
practice (VI, 506). The Senate may consider in closed session various 
preliminary motions made by respondent (e.g., to declare the Senate rule 
on appointment of a committee to receive evidence to be 
unconstitutional, to declare beyond a reasonable doubt as the standard 
of proof in an impeachment trial, and to postpone the impeachment trial) 
prior to voting in open session to dispose of those motions (Oct. 7 and 
8, 1986, pp. 29151 and 29412).
  A replication is always filed (for the form of replication in modern 
practice, see Sept. 26, 1988, p. 25357), and in one instance the 
pleadings proceeded to a rejoinder, surrejoinder, and similiter (III, 
2455). A respondent has also filed a protest instead of pleading on the 
merits (III, 2461), but


  For a chronology in the Senate of disposition of motions permitted 
under Senate impeachment rules, see Sec. 608a, supra.




Sec. 614. Examination of witnesses.

  Witnesses. The  practice 
is to swear the witnesses in open House, and then examine them there; or 
a committee may be named, who shall examine them in committee, either on 
interrogatories agreed on in the House, or such as the committee in 
their discretion shall demand. Seld. Jud., 120, 123.


  In trials before the Senate witnesses have always been examined in 
open Senate, although examination by a committee has been suggested 
(III, 2217) and utilized (S. Res. 38, 101st Cong., Mar. 16, 1989, p. 
4533). In the 74th Congress, the Senate amended its rules for 
impeachment trials to allow the presiding officer, upon the order of the 
Senate, to appoint a committee to receive evidence and take testimony in 
the trial of any impeachment (May 28, 1935, p. 8309). In the trial of 
Judge Claiborne the Senate directed the appointment of a committee of 
twelve Senators to take evidence and testimony pursuant to rule XI of 
the Rules of Procedure and Practice in the Senate when Sitting on 
Impeachment Trials (S. Res. 481, Aug. 15, 1986, p. 22035); and in Nixon 
v. United States, 113 S. Ct. 732 (1993), the Supreme Court refused to 
declare unconstitutional the appointment of such a committee to take 
evidence and testimony.



[[Page 325]]


  For a chronology of motions to subpoena witnesses during the Senate 
impeachment proceedings against President Clinton, see Sec. 608a, supra.


[[Page 326]]

according to their own belief of them. And Lord Hale says, ``the peers 
are judges of law as well as of fact;'' 2 Hale, P. C., 275; Consequently 
of fact as well as of law.



Sec. 615. Relation of jury trial to 
impeachment.

  Jury. In the  case of Alice Pierce, 1 R., 2, a jury was impaneled for 
her trial before a committee. Seld. Jud., 123. But this was on a 
complaint, not on impeachment by the Commons. Seld. Jud., 163. It must 
also have been for a misdemeanor only, as the Lords spiritual sat in the 
case, which they do on misdemeanors, but not in capital cases. Id., 148. 
The judgment was a forfeiture of all her lands and goods. Id., 188. 
This, Selden says, is the only jury he finds recorded in Parliament for 
misdemeanors; but he makes no doubt, if the delinquent doth put himself 
on the trial of his country, a jury ought to be impaneled, and he adds 
that it is not so on impeachment by the Commons, for they are in loco 
proprio, and there no jury ought to be impaneled. Id., 124. The Ld. 
Berkeley, 6 E., 3, was arraigned for the murder of L. 2, on an 
information on the part of the King, and not on impeachment of the 
Commons; for then they had been patria sua. He waived his peerage, and 
was tried by a jury of Gloucestershire and Warwickshire. Id., 126. In 1 
H., 7, the Commons protest that they are not to be considered as parties 
to any judgment given, or hereafter to be given in Parliament. Id., 133. 
They have been generally and more justly considered, as is before 
stated, as the grand jury; for the conceit of Selden is certainly not 
accurate, that they are the patria sua of the accused, and that the 
Lords do only judge, but not try. It is undeniable that they do try; for 
they examine witnesses as to the facts, and acquit or condemn,


  No jury is possible as part of an impeachment trial under the 
Constitution (III, 2313). In 1868, after mature consideration, the 
Senate overruled the old view of its functions (III, 2057), and decided 
that it sat for impeachment trials as the Senate and not as a court 
(III, 2057), and eliminated from its rules all mention of itself as a 
``high court of impeachment'' (III, 2079, 2082). However, the modern 
view of the Senate as a court was evident during the impeachment trial 
of President Clinton. There the Senate convened as a ``Court of 
Impeachment'' (see, e.g., Jan. 7, 1999, p. ----). In response to an 
objection raised by a Senator, the Chief Justice held that the Senate 
was not sitting as a ``jury'' but was sitting as a ``court'' during the 
impeachment trial of President Clinton. As such, the House managers were 
directed to refrain from referring to the Senators as ``jurors'' (Jan. 
15, 1999, p. ----).



Sec. 615a. The presiding officer.

  An anxiety lest  the Chief 
Justice might have a vote in the approaching trial of the President 
seems to have prompted this earlier action (III, 2057). There was 
examination of the question of the Chief Justice's power to vote (III, 
2098); but the Senate declined to declare his incapacity to vote, and he 
did in fact give a casting vote on incidental questions (III, 2067). 
Under the earlier practice, the Senate declined to require that the 
Chief Justice be sworn when about to preside (III, 2080); but the Chief 
Justice had the oath administered by an associate justice (III, 2422). 
The President pro tempore of the Senate, pursuant to an earlier order of 
the Senate, appointed a committee to escort the Chief Justice into the 
Senate chamber to preside over the impeachment trial of President 
Clinton, administered the oath to him, and the Chief Justice in turn 
administered the oath to the Senators (Jan. 7, 1999, p. ----).


  In impeachments for officers other than the President of the United 
States the presiding officer of the Senate presides, whether he be Vice 
President, the regular President pro tempore (III, 2309, footnote, 2337, 
2394) or a special President pro tempore chosen to preside at the trial 
only (III, 2089, 2477).


[[Page 327]]

2060). The President pro tempore of the Senate administered the oath to 
the Chief Justice presiding over the impeachment trial of President 
Clinton, and the Chief Justice in turn administered the oath to the 
Senators (Jan. 7, 1999, p. ----).



Sec. 615b. Oath and quorum.

  Senators elected after  the 
beginning of an impeachment trial are sworn as in the case of other 
Senators (III, 2375). The quorum of the Senate sitting for an 
impeachment trial is a quorum of the Senate itself, and not merely a 
quorum of the Senators sworn for the trial (III, 2063). The vote 
required for conviction is two-thirds of those Senators present and 
voting (Oct. 20, 1989, p. 25335). In 1868, when certain States were 
without representation, the Senate declined to question its competency 
to try an impeachment case (III,





Sec. 616. Attendance of the Commons.

  Presence of  Commons. 
The Commons are to be present at the examination of witnesses. Seld. 
Jud., 124. Indeed, they are to attend throughout, either as a committee 
of the whole House, or otherwise, at discretion, appoint managers to 
conduct the proofs. Rushw. Tr. of Straff., 37; Com. Journ., 4 Feb., 
1709-10; 2 Wood., 614. And judgment is not to be given till they demand 
it. Seld. Jud., 124. But they are not to be present on impeachment when 
the Lords consider of the answer or proofs and determine of their 
judgment. Their presence, however, is necessary at the answer and 
judgment in case capital Id., 58, 158, as well as not capital; 162. * * 
*.





Sec. 617. Attendance of the House of 
Representatives.

  The  House has consulted its own inclination and 
convenience about attending its managers at an impeachment. It did not 
attend at all in the trials of Blount, Swayne, Archbald. Louderback and 
Ritter (III, 2318, 2483; VI, 504, 516); and after attending at the 
answer of Belknap, decided that it would be represented for the 
remainder of the trial by its managers alone (III, 2453). At the trial 
of the President the House, in Committee of the Whole, attended 
throughout the trial (III, 2427), but this is exceptional. In the Peck 
trial the House discussed the subject (III, 2377) and reconsidered its 
decision to attend the trial daily (III, 2028). While the Senate is 
deliberating the House does not attend (III, 2435); but when the Senate 
votes on the charges, as at the other open proceedings of the trial, it 
may attend (III, 2383, 2388, 2440). While it has frequently attended in 
Committee of the Whole, it may attend as a House (III, 2338).



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question, or particular sentence, is out of that which seemeth to be 
most generally agreed on. Seld. Jud., 167; 2 Wood., 612.



Sec. 618. Voting on the articles in an impeachment 
trial.

  * * * The  Lords debate the judgment among themselves. Then the vote is 
first taken on the question of guilty or not guilty; and if they 
convict, the



  The question in judgment in an impeachment trial has occasioned 
contention in the Senate (III, 2339, 2340), and in the trial of the 
President the form was left to the Chief Justice (III, 2438, 2439). In 
the Belknap trial there was much deliberation over this subject (III, 
2466). In the Chase trial the Senate modified its former rule as to form 
of final question (III, 2363). The yeas and nays are taken on each 
article separately (III, 2098, 2339) in the form ``Senators, how say 
you? is the respondent guilty or not guilty?'' (Oct. 9, 1986, p. 29871). 
But in the trial of President Johnson the Senate, by order, voted on the 
articles in an order differing from the numerical order (III, 2440), 
adjourned after voting on one article (III, 2441), and adjourned without 
day after voting on three of the eleven articles (III, 2443). In other 
impeachments, the Senate has adopted an order to provide the method of 
voting and putting the question separately and successively on each 
article (VI, 524; Apr. 16, 1936, p. 5558). For a discussion of the vote 
of the Senate on each article of impeachment of President Clinton, see 
Sec. 608a, supra.


[[Page 329]]

High Steward formerly in cases of life and death. Seld. Jud., 180. But 
now the Steward is deemed not necessary. Fost., 144; 2 Wood., 613. In 
misdemeanors the greatest corporal punishment hath been imprisonment. 
Seld. Jud., 184. The King's assent is necessary to capital judgments 
(but 2 Wood., 614, contra), but not in misdemeanors, Seld. Jud., 136.



Sec. 619. Judgment in 
impeachments.

  Judgment. Judgments in  Parliament, for death have been strictly guided per 
legem terrae, which they can not alter; and not at all according to 
their discretion. They can neither omit any part of the legal judgment 
nor add to it. Their sentence must be secundum non ultra legem. Seld. 
Jud., 168, 171. This trial, though it varies in external ceremony, yet 
differs not in essentials from criminal prosecutions before inferior 
courts. The same rules of evidence, the same legal notions of crimes and 
punishments, prevailed; for impeachments are not framed to alter the 
law, but to carry it into more effectual execution against too powerful 
delinquents. The judgment, therefore, is to be such as is warranted by 
legal principles or precedents. 6 Sta. Tr., 14; 2 Wood., 611. The 
Chancellor gives judgment in misdemeanors; the Lord



  The Constitution of the United States (art. I, sec. 3, cl. 7) limits 
the judgment to removal and disqualification. The order of judgment 
following conviction in an impeachment trial is divisible for a separate 
vote if it contains both removal and disqualification (III, 2397; VI, 
512; Apr. 17, 1936, p. 5606), and an order of judgment (such as 
disqualification) requires a majority vote (VI, 512; Apr. 17, 1936, p. 
5607). Under earlier practice, after a conviction the Senate voted 
separately on the question of disqualification (III, 2339, 2397), but no 
vote is required by the Senate on judgment of removal from office 
following conviction, since removal follows automatically from 
conviction under article II, section 4 of the Constitution (Apr. 17, 
1936, p. 5607). Thus, the presiding officer directs judgment of removal 
from office to be entered and the respondent removed from office without 
separate action by the Senate where disqualification is not contemplated 
(Oct. 9, 1986, p. 29873). A resolution impeaching the President may 
provide only for his removal from office (H. Res. 1333, 93d Cong., Aug. 
20, 1974, p. 29361) or for both his removal and disqualification from 
holding any future office (H. Res. 611, 105th Cong., Dec. 
19, 1998, p. ----).




Sec. 620. Impeachment not interrupted by 
adjournments.

  Continuance. An  impeachment is not discontinued by the dissolution of 
Parliament, but may be resumed by the new Parliament. T. Ray 383; 4 Com.
Journ., 23 Dec., 1790; Lord's Jour., May 15, 1791; 2 Wood., 618.



[[Page 330]]

gress (VI, 515), and the Senate conducted the trial in the 73d Congress 
(VI, 516); (3) the impeachment of Judge Hastings was presented in the 
Senate during the second session of the 100th Congress (Aug. 3, 1988, p. 
20223) and the trial in the Senate continued into the 101st Congress 
(Jan. 3, 1989, p. 84). The impeachment of President Clinton was 
presented to the Senate after the Senate had adjourned sine die for the 
105th Congress (Dec. 19, 1998, p. ----), and the Senate conducted the 
trial in the 106th Congress (Jan. 7, 1999, p. ----). While impeachment 
proceedings may continue from one Congress to the next, the authority of 
the managers appointed by the House expires at the end of a Congress; 
and the managers must be reappointed when a new Congress convenes (Jan. 
6, 1999, p. ----).


  In Congress impeachment proceedings are not discontinued by a recess 
(III, 2299, 2304, 2344, 2375, 2407, 2505, see also Sec. 592, supra). The 
following impeachment proceedings extended from one Congress to the 
next: (1) the impeachment of Judge Pickering was presented in the Senate 
on the last day of the Seventh Congress (III, 2320), and the Senate 
conducted the trial in the Eighth Congress (III, 2321); (2) the 
impeachment of Judge Louderback was presented in the Senate on the last 
day of the 72d Con