[Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 113th Congress]
[113rd Congress]
[House Document 112-161]
[Jeffersons Manual of ParliamentaryPractice]
[Pages 314-331]
[From the U.S. Government Publishing 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 315]]

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, 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.




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 316]]

mittee 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 because 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 before 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 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. 20020). 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. 24679). 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 various events have been credited with setting an 
impeachment in motion: 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); charges preferred by a memorial, which is usually 
referred to a committee for examination (III, 2364, 2491, 2494, 2496, 
2499, 2515; VI, 543); a resolution introduced by a Member and referred 
to a committee (Apr. 15, 1970, p. 11941; Oct. 23, 1973, p. 34873); a 
message from the President (III, 2294, 2319; VI, 498); charges 
transmitted from the legislature of a State (III, 2469) or territory 
(III, 2487) or from a grand jury (III, 2488); or facts developed and 
reported by an investigating com



[[Page 317]]

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. 21560).


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, pp. 21560-62; Nov. 6, 2007, p. 29817; June 10, 
2008, p. 12053; July 15, 2008, pp. 15084, 15086; 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; July 15, 
2008, pp. 15084, 15086 (see June 10, 2008, p. 12053)), 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. 27819), and is 
called up as privileged (Dec. 18, 1998, p. 27828). The addition of new 
articles of impeachment offered by the managers but not reported by 
committee is 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. 28107). On several occasions the 
Committee on the Judiciary, having been referred a question of 
impeachment, reported a recommendation that impeachment was not 
warranted and,


  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. 
28112), 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. 
14), empowering managers to hire special legal and clerical personnel 
and providing for their pay, and to carry out other responsibilities 
(Jan. 3, 1989, p. 84; Dec. 19, 1998, p. 28112; Jan. 6, 1999, p. 240), 
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).

  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. 24679). 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(k)(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).


[[Page 318]]

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. 20020). 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, pp. 
24679, 24735).


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) or has 
referred to committee an impeachment resolution raised as a question of 
privilege (Nov. 6, 2007, p. 29820; June 10, 2008, p. 12072 and June 11, 
2008, p. 12218). 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, but resolutions 
calling for an investigation by that committee or by




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 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 chair 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 chair and members of the committee for their efforts (Aug. 20, 1974, 
p. 29361).




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. 27829). A 
resolution setting forth separate articles of impeachment may be divided 
among the articles (e.g., Dec. 19, 1998, p. 28110; Mar. 11, 2010, p. _).



[[Page 319]]

(July 22, 1986, p. 17306) or 13 (Dec. 19, 1998, p. 28112). These Members 
in two notable cases represented the majority party alone (e.g., Dec. 
19, 1998, p. 28112), 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 into a 
single indivisible privileged resolution (H. Res. 614, Dec. 19, 1998, p. 
28112; H. Res. 10, Jan. 6, 1999, p. 240).


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 
(III, 2445) or nine





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. 37). 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. 272). 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. 
272); and (2) the two articles of impeachment (H. Res. 611, Jan. 7, 
1999, p. 273). Thereupon, the managers requested the Senate take order 
for trial (Jan. 7, 1999, p. 273).



[[Page 320]]

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 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. 357). Pursuant to the previous 
order of the Senate (S. Res. 16, Jan. 8, 1999, p. 349), the House 
managers were recognized for 24 hours to present their case in support 
of conviction and removal (Jan. 14, 1999, p. 521); counsel for the 
President was then recognized for 24 hours to present the President's 
defense (Jan. 19, 1999, p. 1055); 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. 1244). 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. 1250; Jan. 23, 
1999, p. 1320). The Senate adopted a motion to consider a motion to 
dismiss in executive session (Jan. 25, 1999, p. 1339), and the motion to 
dismiss was defeated (Jan. 27, 1999, p. 1397). The Senate adopted a 
motion to consider a motion of the House managers to subpoena witnesses 
in executive session (Jan. 26, 1999, p. 1370). 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 the 
President at a deposition (Jan. 26, 1999, p. 1370).
  The Senate adopted a resolution governing the initial impeachment 
proceedings of President Clinton (S. Res. 16, Jan. 8, 1999, p. 349). 
Later it adopted a second resolution governing the remaining proceedings 
(S. Res. 30, Jan. 28, 1999, p. 1843). 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


[[Page 321]]

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. 
1453). 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. 1817); 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. 4, 1999, p. 1817). 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. 1827). 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. 1817). 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. 1827); 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. 1827). 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. 1827). 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. 1954). After 
closing arguments, the Senate adopted a motion to consider the articles 
of impeachment in closed session (Feb. 9, 1999, p. 2055). After closed 
deliberations the Senate Clerk read the articles of impeachment in open 
session, and each Senator voted ``guilty'' or ``not guilty'' on each 
article (Feb. 12, 1999, p. 2375). 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. 2375). The Senate communicated 
to the House and the Secretary of State the judgment of the Senate (Feb. 
12, 1999, p. 2375).
  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



[[Page 322]]


  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.


  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, p. 29126; Jan. 7, 1999, p. 272). 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. 240). Having exhibited the articles the managers 
return and report verbally to the House (III, 2449, 2476).

  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 that 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).



[[Page 323]]


  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.




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., 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.



[[Page 324]]

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.


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 (VI, 511, 524; Apr. 11, 1936, pp. 5370-86; Oct. 7, 1986, 
p. 29149), or may not appear at all (III, 2307, 2333, 2393). In case the 
accused does not appear the House does not ask that the accused be 
compelled to appear (III, 2308), but the trial proceeds as on a plea of 
``not guilty.'' The writ of summons to the accused recites the articles 
and notifies the accused to appear at a fixed time and place and file an 
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



  The chair 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. 349); 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 inquiry resulting in the conclusion that the Senate 
had no power to take into custody the body of the accused (III, 2324, 
2367).




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.



[[Page 325]]

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).
  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, pp. 359-361). 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


  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.


  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 also has filed a protest instead of pleading on the 
merits (III, 2461), but 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) before voting in open session to dispose of those 
motions (Oct. 7, 8, 1986, pp. 29151, 29412).


  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.



[[Page 326]]

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, 
506 U.S. 224 (1993), the Supreme Court refused to declare 
unconstitutional the appointment of such a committee to take evidence 
and testimony.
  In trials before the Senate witnesses have always been examined in 
open Senate, although examination by a committee has been suggested 
(III,


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


[[Page 327]]

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, 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


  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. 272). 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. 580).


[[Page 328]]

and the Chief Justice in turn administered the oath to the Senators 
(Jan. 7, 1999, p. 272).


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,


  In impeachments for officers other than the President of the United 
States the presiding officer of the Senate presides, whether being 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).




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, 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. 272).





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. * * 
*.



[[Page 329]]

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). 
Although it has frequently attended in Committee of the Whole, it may 
attend as a House (III, 2338).



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





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



  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 330]]

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 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.




[[Page 331]]


  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, because 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 removal from office (H. Res. 1333, 93d Cong., Aug. 20, 
1974, p. 29361) or for both removal and disqualification from holding 
any future office (H. Res. 611, 105th Cong., Dec. 19, 1998, p. 27828).




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.



  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 Congress (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); (4) the impeachment of President 
Clinton was presented to the Senate after the Senate had adjourned sine 
die for the 105th Congress (Jan. 6, 1999, p. 14), and the Senate 
conducted the trial in the 106th Congress (Jan. 7, 1999, p. 272); (5) 
the impeachment inquiry of Judge Porteous was authorized in the 110th 
Congress (Sept. 17, 2008) and continued in the next Congress (Jan. 13, 
2009). Although 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. 15).