[Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 118th Congress]
[118th Congress]
[House Document 117-161]
[Rules of the House of Representatives]
[Pages 325-349]
[From the U.S. Government Publishing Office, www.gpo.gov]



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                         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:
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, 1619, 1641; 4 Blackst., 25; 9 Seld., 1656; 73 Seld., 1604-18.
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.
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 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 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). In the first impeachment of President Trump, the House adopted a privileged resolution reported from the Committee on Rules directing sundry committees to continue their ongoing investigations as part of an existing inquiry into potential grounds for impeachment (H. Res. 660, Oct. 31, 2019, p. _). In the second impeachment of President Trump, the House considered an unreported resolution containing a single article of impeachment pursuant to a special order of business only several days after the underlying conduct occurred (Jan. 13, 2021, p. _).
A resolution disapproving of the conduct of the Speaker with respect to the initiation of an impeachment inquiry constitues a question of the privileges of the House (Sept. 25, 2019, p. _; Sept. 27, 2019, p. _).
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; Dec. 6, 2016, p. 15892; Dec. 6, 2017, p. _; Jan. 19, 2018, p. _; July 17, 2019, 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; 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 as privileged (Dec. 17, 1998, p. 27819; Dec. 15, 2019, p. _). A proposition to impeach may be called up as privileged (Dec. 18, 1998, p. 27828) or considered pursuant to a special order of business reported by the Committee on Rules (Dec. 18, 2019, p. _; Jan. 13, 2021, p. _). The addition of new articles of impeachment offered by the managers but not reported by committee is also privileged (III, 2418), as is a proposition to refer to committee the papers and testimony in an impeachment of the preceding Congress (V, 7261). After having recognized an impeachment resolution as a question of the privileges of the House, the Chair refused to respond to an inquiry regarding the substance of the resolution, that being a matter for the House by its disposition of the matter (Dec. 6, 2016, pp. 15892-93). 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, thereafter, called up the report as a question of privilege (Deschler, ch. 14, Sec. 1.3). Under an expired provision of law an independent counsel appointed to investigate the President was subject to impeachment (Sept. 23, 1998, p. 21560). A resolution impeaching the United States Ambassador to the United Nations (July 13, 1978, p. 20606) or the Commissioner of the Internal Revenue Service (Dec. 6, 2016, p. 15892) constitutes a question of the privileges of the House under rule IX.
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; Precedents (Wickham), ch. 1, Sec. 8.2), 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, 468). The House has adopted special orders of business: (1) providing for the consideration of a specified proposition relating to an impeachment once made and denying privilege to any other such proposition (sec. 3, H. Res. 767, Dec. 18, 2019, p. _); and (2) providing for the adoption of a specified proposition relating to an impeachment upon adoption of an article of impeachment and denying privilege to any other such proposition (sec. 3, H. Res. 41, Jan. 13, 2021, p. _). 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).
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 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) The House has adopted a privileged resolution reported by the Committee on Rules directing sundry committees to continue ``ongoing investigations'' as part of an ``existing'' impeachment inquiry (H. Res. 660, Oct. 31, 2019, p. _). In the second impeachment of President Trump, the House did not pursue any formal committee investigation or impeachment inquiry.
Sec. 606. Procedure of committee in investigating. The House has almost 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; H. Rept. 116-346, Dec. 15, 2019, p. _). 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). In the first impeachment of President Trump, the House adopted a privileged resolution reported by the Committee on Rules directing sundry committees to continue ongoing investigations, and directed the Permanent Select Committee on Intelligence to conduct specified investigatory proceedings and to transmit a report of its findings to the Committee on the Judiciary for use in the second phase of the impeachment inquiry (H. Res. 660, Oct. 31, 2019, p. _).
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. 3153; Dec. 18, 2019, 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), five (III, 2445), seven (III, 2448, 2475; Jan. 15, 2020, p. _), nine (July 22, 1986, p. 17306; Jan. 13, 2021, p. _), 11 (III, 2300, 2323), or 13 (Dec. 19, 1998, p. 28112). These Members in several 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; Precedents (Wickham), ch. 1, Sec. 8.2; H. Res. 798, Jan. 15, 2020, p. _; H. Res. 40, Jan. 13, 2021, p. _).
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. First Senate impeachment proceedings against President Trump. 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 Trump (Jan. 15, 2020, p. _). The House managers presented the articles of impeachment by reading two resolutions as follows: (1) the appointment of managers (H. Res. 798, Jan. 16, 2020, p. _); and (2) the two articles of impeachment (H. Res. 755, Jan. 16, 2020, p. _).
The Senate adopted a resolution governing the initial impeachment trial proceedings of President Trump following the tabling of multiple amendments to that resolution (S. Res. 483, Jan. 21, 2020, p. _). The resolution addressed: (1) the composition of the evidentiary record; (2) a timetable for motions, arguments, and presentations by House managers and President's counsel; (3) a time period for Senators to question the parties; (4) a separate time period on the question of whether the Senate would subpoena witnesses or documents; and (5) a process for deposing subpoenaed witnesses and determining whether they should testify at the trial. During debate on that resolution, the Chief Justice admonished the House managers and the President's counsel for breaches of decorum, citing in part a similar admonishment in the 1905 impeachment trial of Judge Swayne for use of the term ``pettifogging'' (Jan. 21, 2020, p. _; III, 2169). Upon an announcement by the Chief Justice pursuant to the terms of the governing resolution, a classified document identified by House managers was made available at the trial but was not made public or printed (Jan. 22, 2020, p. _). The Senate trial of President Trump featured a historical and legal argument from the independent counsel who had led the investigation of President Clinton which formed the basis for his impeachment in 1998 (Jan. 27, 2020, p. _). The trial also featured questions from Senators and argument on the validity of House subpoenas issued before the House had adopted a resolution authorizing an impeachment inquiry (Jan. 29, 2020, p. _; Jan. 30, 2020, p. _). The Chief Justice refused to read a question from a Senator that revealed the name of a whistleblower involved in the impeachment charges (Jan. 30, 2020, p. _). The Senate rejected a motion to allow for subpoenas of witnesses and documents (Jan. 31, 2020, p. _). The Senate adopted a second resolution governing the remaining impeachment trial proceedings (S. Res. 488, Jan. 31, 2020, p. _). Such resolution: (1) closed the evidentiary record; (2) provided for final arguments; (3) provided for the adjournment of the Court of Impeachment; and (4) provided for a vote on the articles of impeachment. The Chief Justice responded to a parliamentary inquiry by advising that after reviewing the precedents he did not view it as appropriate for a Chief Justice, an unelected official from another branch of government, to break a tie and change the result of a vote of the elected Members of the Senate (Jan. 31, 2020, p. _). Counsel for the President in closing arguments alleged that the House Committee on the Judiciary had violated the rules of the House in not providing for a minority day of hearing (Feb. 3, 2020, p. _). Following closing arguments, the Senate Clerk read each article and each Senator voted ``guilty'' or ``not guilty'' on each article (Feb. 5, 2020, p. _). The Senate adjudged President Trump not guilty by a vote of 48-52 on the first article and 47-53 on the second article (Feb. 5, 2020, p. _). By order of the Senate, the Secretary of the Senate communicated the judgment of the Senate to the House (Feb. 5, 2020, p. _).
Sec. 608b. Second Senate impeachment proceedings against President Trump. Under an order of the Senate, the Secretary of the Senate informed the House that it was ready to receive the House managers for the purpose of exhibiting the article of impeachment against former President Trump (Jan. 21, 2021, p. p. _). The House managers presented the article of impeachment by reading two resolutions as follows: (1) the appointment of managers (H. Res. 40, Jan. 25, 2021, p. _); and (2) the article of impeachment (H. Res. 24, Jan. 25, 2021, p. _).
The President pro tempore of the Senate presided over the impeachment trial (Jan. 26, 2021, p. _). The Senate tabled a threshold point of order that the impeachment trial of a former President was unconstitutional after the President pro tempore presented the question directly to the body (Jan. 26, 2021, p. _). The Senate then adopted a resolution governing the initial impeachment trial proceedings (S. Res. 16, Jan. 26, 2021, p. _). The resolution: (1) set the timing of the impeachment trial for two weeks hence; (2) set a timetable for various trial briefs by House managers and President's counsel; (3) directed that any trial briefs include argument on the jurisdiction of the Senate's ability to sit as a Court of Impeachment with respect to the trial of a former President for acts committed as President; and (4) directed parties to prepare to address the question of jurisdiction at the outset of the trial proceedings. Prior to the start of the trial, the Senate adopted a second resolution governing the trial proceedings (S. Res. 47, Feb. 9, 2021, p. _). That resolution addressed: (1) the composition of the evidentiary record; (2) initial argument on the question of whether the former President was subject to the jurisdiction of the Senate as a Court of Impeachment for conduct while President, with an automatic vote at the end of such argument and immediate dismissal of the article of impeachment upon a determination, by majority vote with a quorum present, that the Senate had no jurisdiction; (3) a timetable for motions, arguments, and presentations by House managers and President's counsel in the case of a vote in favor of jurisdiction; (4) a time period for Senators to question the parties; (5) a separate time period on the question of whether the Senate would subpoena witnesses or documents; (6) a process for deposing subpoenaed witnesses and determining whether they should testify at the trial; (7) a motion by the House managers to admit additional materials into the evidentiary record; (8) a time period for final arguments; (9) convening on a specified Sunday if the trial was not yet resolved; and (10) the provision of a vote on the article of impeachment. By a vote of 56-44 the Senate determined that it had jurisdiction to sit as a Court of Impeachment with respect to former President Trump following arguments from the House managers relying in large part on the precedent of William Belknap (see Sec. 174, supra), and the President pro tempore announced that the trial would proceed (Feb. 9, 2021, p. _). The House managers relied on numerous video presentations of the attack on the Capitol building on January 6, 2021, in their initial presentation (Feb. 10, 2021, p. _). As part of their presentation, the House managers invoked a newspaper article referencing a call placed to a sitting Senator, causing that Senator to attempt to move that the remarks of the managers be stricken from the Record (Feb. 10, 2021, p. _). The President pro tempore responded by ruling that the managers' presentation was not limited to the evidentiary record already provided, which was appealed by the moving Senator (Feb. 10, 2021, p. _). Following a quorum call, the Senator withdrew his appeal and the House managers agreed to withdraw the relevant portion of the presentation without prejudice to raise the issue at a later time (Feb. 10, 2021, p. _). Following the initial presentations, the Senate agreed by unanimous consent to structure the question response periods (Feb. 12, 2021, p. _). During the questioning period, the President pro tempore took the initiative to remind Senators of the admonition of Chief Justice Roberts from the first impeachment trial of President Trump regarding civility in debate (Feb. 12, 2021, p. _; see Sec. 608a, supra). Following the question period, the House managers offered a motion to subpoena a current Member of the House as a witness following reports of a phone call on the day of the violent attack on the Capitol that was purportedly relevant to the House managers' case (Feb. 13, 2021, p. _). Following debate regarding the viability of virtual depositions and a call for order from the President pro tempore, the Senate voted 55-45 to allow a motion to subpoena witnesses or documents under the rules of impeachment (Feb. 13, 2021, p. _). After a short recess, the Senate returned and, in exchange for the entry into evidence of a statement from the current Member of the House regarding the phone call in question, the House managers agreed to forego any motions to subpoena witnesses, and the parties proceeded to closing arguments (Feb. 13, 2021, p. _). During the House managers' closing argument, the phone call involving the sitting Senator was again raised. The Senator attempted to engage in debate, and then appealed the ruling of the President pro tempore that debate was not in order (Feb. 13, 2021, p. _). He eventually withdrew his appeal and the President pro tempore directed that the remarks be stricken from the record on the grounds that the evidentiary record was closed and that new evidence could not be raised during the closing argument (Feb. 13, 2021, p. _). Following closing arguments, the Senate Clerk read the article and each Senator voted ``guilty'' or ``not guilty'' thereon (Feb. 13, 2021, p. _). The Senate adjudged President Trump not guilty on the charge of incitement of insurrection by a vote of 57-43 in favor of conviction (less than two- thirds) (Feb. 13, 2021, p. _). By order of the Senate, the Secretary of the Senate communicated the judgment of the Senate to the House (Feb. 13, 2021, p. _).
Sec. 608c. Senate impeachment proceedings against President Clinton. In the impeachment trial of President Clinton, the Senate adjudged President Clinton not guilty by a vote of 45-55 on the first article and a vote of 50-50 on the second article (Feb. 12, 1999, p. 2375). For a procedural history of that trial, see Sec. 608a of the House Rules and Manual for the 116th Congress (H. Doc. 115-177).
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). 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 impeachments of President Trump, and related matters, see Sec. Sec. 608a-608b, supra. For a discussion of the same with respect to the impeachment of President Clinton, see Sec. 608a of the House Rules and Manual for the 116th Congress (H. Doc. 115-177).
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.
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 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 Trump impeachment proceedings, see Sec. Sec. 608a- 608b, supra. For a discussion of the same with respect to the Clinton impeachment proceedings, see Sec. 608a of the House Rules and Manual for the 116th Congress (H. Doc. 115-177).
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.
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 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 Trump impeachment proceedings, see Sec. Sec. 608a-608b, supra. For a chronology of the same with respect to the Clinton impeachment proceedings, see Sec. 608a of the House Rules and Manual for the 116th Congress (H. Doc. 115-177).
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 of disposition of motions in the Senate under its impeachment rules during the impeachment of President Trump, see Sec. Sec. 608a-608b, supra. For a chronology of the same with respect to the impeachment of President Clinton, see Sec. 608a of the House Rules and Manual for the 116th Congress (H. Doc. 115-177).
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, 506 U.S. 224 (1993), the Supreme Court refused to declare unconstitutional the appointment of such a committee to take evidence and testimony. For a chronology of motions to subpoena witnesses during the Senate impeachment proceedings against President Trump, see Sec. Sec. 608a- 608b, supra. For a chronology of the same with respect to Senate impeachment proceedings against President Clinton, see Sec. 608a of the House Rules and Manual for the 116th Congress (H. Doc. 115-177).
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, 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.
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).
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) though in a later trial, the Chief Justice advised that he did not believe it appropriate for the Chief Justice to cast a vote that would change the result of the vote of the Senate (Jan. 31, 2020, p. _). 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 (Jan. 7, 1999, p. 272).
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). The President pro tempore presided over the impeachment trial of a former President who was still President at the time of his impeachment (Jan. 26, 2021, 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, 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. * * *.
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 President Johnson 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. 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 President Johnson 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 with respect to the impeachments of President Trump, see Sec. Sec. 608a-608b, supra. For a discussion of the same with respect to articles of impeachment against President Clinton, see Sec. 608a of the House Rules and Manual for the 116th Congress (H. Doc. 115-177).
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 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.
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 for only 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; H. Res. 755, 116th Cong., Dec. 18, 2019, p. _; H. Res. 24, 117th Cong., Jan. 13, 2021, 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 347]] ======================================================================== 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 (Precedents (Wickham), ch. 1, Sec. 8.2), 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 (Precedents (Wickham), ch. 1, Sec. 8.1). 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 (Precedents (Wickham), ch. 1, Sec. 8.2). ======================================================================== [[Page 349]] RULES OF THE HOUSE OF REPRESENTATIVES RULES OF THE HOUSE OF REPRESENTATIVES, WITH NOTES AND ANNOTATIONS __________