Impeachment and the Constitution

November 20, 2019 – December 6, 2023 R46013

Impeachment and the Constitution
December 6, 2023
The Constitution grants Congress authority to impeach and remove the President, Vice President,
and other federal “civil officers” for “Treason, Bribery, or other high Crimes and
Jared P. Cole
Misdemeanors.” Impeachment is one of the various checks and balances created by the
Legislative Attorney
Constitution, a crucial tool for holding government officers accountable for violations of the law

and abuse of power.
Todd Garvey
Legislative Attorney
Responsibility and authority to determine whether to impeach an individual rests in the hands of

the House of Representatives. Should a simple majority of the House approve articles of
impeachment, the matter is then presented to the Senate, to which the Constitution provides the

sole power to try an impeachment. A conviction on any one of the articles of impeachment
requires the support of a two-thirds majority of the Senators present and results in that individual’s removal from office. The
Senate also has discretion to vote to disqualify that official from holding a federal office in the future.
The Constitution imposes several additional requirements on the impeachment process. When conducting an impeachment
trial, Senators must be “on oath or affirmation,” and the right to a jury trial does not extend to impeachment proceedings. If
the President is impeached and tried in the Senate, the Chief Justice of the United States presides at the trial. The Constitution
bars the President from using the pardon power to shield individuals from impeachment or removal from office.
Understanding the historical practices of Congress with regard to impeachment is central to fleshing out the meaning of the
Constitution’s impeachment clauses. While much of constitutional law is developed through jurisprudence analyzing the text
of the Constitution and applying prior judicial precedents, the Constitution’s meaning is also shaped by institutional practices
and political norms. The power of impeachment is largely immune from judicial review, meaning that Congress’s choices in
this arena are unlikely to be overturned by the courts. For that reason, examining the history of actual impeachments is
crucial to understanding the meaning of the Constitution’s impeachment provisions.
One major recurring question about the impeachment remedy is the definition of “high Crimes and Misdemeanors.” At least
at the time of ratification of the Constitution, the phrase appears understood to have applied to uniquely “political” offenses,
or misdeeds committed by public officials against the state. Such misconduct simply resists a full delineation, however, as the
possible range of potential misdeeds in office cannot be determined in advance. Instead, the type of behavior that merits
impeachment is worked out over time through the political process.
While this report focuses on the constitutional considerations relevant to impeachment, there are various other important
questions that arise in any impeachment proceeding. For a consideration of the legal issues surrounding access to information
from the executive branch in an impeachment investigation, see CRS Report R45983, Congressional Access to Information
in an Impeachment Investigation, by Todd Garvey. For discussion of the House procedures used in impeachment
investigations, see CRS Report R45769, The Impeachment Process in the House of Representatives, by Elizabeth Rybicki
and Michael Greene.
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Introduction
The Constitution grants Congress authority to impeach and remove the President, Vice President,
and other federal “civil Officers” for treason, bribery, or “other high Crimes and Misdemeanors.”1
Impeachment is one of the various checks and balances created by the Constitution, serving as a
crucial tool for holding government officers accountable for abuse of power, corruption, and
conduct considered incompatible with the nature of an individual’s office.2
Although the term impeachment commonly refers to the removal of a government official from
office, the impeachment process, as described in the Constitution, entails two distinct proceedings
carried out by the separate houses of Congress. First, a simple majority of the House impeaches—
or formally approves allegations of wrongdoing amounting to an impeachable offense.3 The
second proceeding is an impeachment trial in the Senate. If the Senate votes to convict with a
two-thirds majority, the official is removed from office.4 Following a conviction, the Senate also
may vote to disqualify that official from holding a federal office in the future.5 The House has
impeached twenty individuals: fifteen federal judges, one Senator, one Cabinet member, and three
Presidents.6 Of these, eight individuals—all federal judges—were convicted by the Senate.7

1 U.S. CONST. art. II, § 4. While this report focuses on the constitutional considerations relevant to impeachment, there
are various other significant questions that arise in any impeachment proceeding. For a consideration of the legal issues
surrounding access to information in an impeachment investigation, see CRS Report R45983, Congressional Access to
Information in an Impeachment Investigation, by Todd Garvey (2019). For discussion of the House procedures used in
impeachment investigations, see CRS Report R45769, The Impeachment Process in the House of Representatives, by
Elizabeth Rybicki and Michael Greene (2019). See Cong. Rsch. Serv., Overview of Impeachable Offenses, Constitution
Annotated, https://constitution.congress.gov/browse/essay/artII-S4-4-1/ALDE_00000690/.
2 See discussion infra “History of Impeachment in Congress.”
3 See U.S. CONST. art. I, § 2, cl. 5. See Cong. Rsch. Serv., Overview of Impeachment, Constitution Annotated,
https://constitution.congress.gov/browse/essay/artI-S2-C5-1/ALDE_00000030/.
4 Id. § 3, cls. 6, 7. See Cong. Rsch. Serv., Overview of Impeachment Trials, Constitution Annotated,
https://constitution.congress.gov/browse/essay/artI-S3-C6-1/ALDE_00000036/.
5 See 3 ASHER C. HINDS, HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES § 2397, pp.
818–20 (1907) https://www.govinfo.gov/content/pkg/GPO-HPREC-HINDS-V3/pdf/GPO-HPREC-HINDS-V3.pdf
[hereinafter HINDS]; 6 CLARENCE CANNON, CANNON’S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED
STATES § 512, pp. 705–08 (1936), https://www.govinfo.gov/content/pkg/GPO-HPREC-CANNONS-V6/pdf/GPO-
HPREC-CANNONS-V6.pdf [hereinafter CANNON]. If this option is pursued, a simple majority vote has been sufficient
in the past. See 6 CANNON, supra § 512, pp. 705–06, 708. See, e.g., 49 CONG. REC. 1447–48 (1913) (vote to disqualify
Judge Robert W. Archbald, thirty-nine yeas, thirty-five nays). But see MICHAEL J. GERHARDT, IMPEACHMENT: WHAT
EVERYONE NEEDS TO KNOW 111–12 (2018) (noting that one plausible reading of the constitutional text would require a
two-thirds vote for disqualification).
6 See infra Table 1. The House of Representatives impeached President Donald Trump twice. See infra “Impeachments
of President Donald Trump.” See generally WM. HOLMES BROWN ET AL., HOUSE PRACTICE: A GUIDE TO THE RULES,
PRECEDENTS, AND PROCEDURES OF THE HOUSE ch. 27 § 1 (2011), https://www.govinfo.gov/content/pkg/GPO-
HPRACTICE-112/pdf/GPO-HPRACTICE-112.pdf [hereinafter HOUSE PRACTICE].
7 See infra Table 1. John Pickering (1804); West H. Humphreys (1862); Robert W. Archbald (1913); Halsted Ritter
(1936); Harry E. Claiborne (1986); Alcee Hastings (1989); Walter L. Nixon Jr. (1989); G. Thomas Porteous Jr. (2010).
See REPORT OF THE IMPEACHMENT TRIAL COMM. ON THE ARTICLES AGAINST JUDGE G. THOMAS PORTEOUS, JR., 111TH
CONG., 2D SESS., S. REP. NO. 111-347, at 1 n.1 (2010) [hereinafter PORTEOUS IMPEACHMENT].
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The Constitution imposes several requirements on the impeachment process.8 When conducting
an impeachment trial, Senators must be “on Oath or Affirmation,”9 and the right to a jury trial
does not extend to impeachment proceedings.10 If the President is impeached and tried in the
Senate, the Chief Justice of the United States presides at the trial.11 Finally, the Constitution bars
the President from using the pardon power to shield individuals from impeachment or removal
from office.12
Understanding the historical practices of Congress on impeachment is central to fleshing out the
meaning of the Constitution’s impeachment clauses. While much of constitutional law is
developed through jurisprudence analyzing the text of the Constitution and applying prior judicial
precedents, the Constitution’s meaning is also shaped by institutional practices and political
norms.13 James Madison, for instance, argued that the meaning of certain provisions in the
Constitution would be “liquidated” over time, or determined through a “regular course of
practice.”14 Justice Joseph Story thought this principle applied to impeachment, noting that the
Framers understood that the meaning of “high Crimes and Misdemeanors” constituting
impeachable offenses would develop over time, much like the common law.15 Justice Story
believed it would be impossible to define precisely the full scope of political offenses that may
constitute impeachable behavior in the future.16 Moreover, the power of impeachment is largely

8 The Constitution contains a number of provisions that are relevant to the impeachment of federal officials. Article I,
Section 2, Clause 5 grants the sole power of impeachment to the House of Representatives; Article I, Section 3, Clause
6 assigns the Senate sole responsibility to try impeachments; Article I, Section 3, Clause 7 provides that the sanctions
for an impeached and convicted individual are limited to removal from office and potentially a bar from holding future
office, but an impeachment proceeding does not preclude criminal liability; Article II, Section 2, Clause 1 provides that
the President enjoys the pardon power, but it does not extend to cases of impeachment; and Article II, Section 4 defines
which officials are subject to impeachment and what kinds of misconduct constitute impeachable behavior. Article III
does not mention impeachment expressly, but Section 1, which establishes that federal judges shall hold their seats
during good behavior, is widely understood to provide the unique nature of judicial tenure. And Article III, Section 2,
Clause 3 provides that trials, “except in Cases of Impeachment, shall be by jury.”
9 Under Senate rules, the Presiding Officer administers the oath to all Senators present before proceeding to
consideration of any articles of impeachment. See S. COMM. ON RULES AND ADMIN., 113TH CONG., SENATE MANUAL
CONTAINING THE STANDING RULES, ORDERS, LAWS, AND RESOLUTIONS AFFECTING THE BUSINESS OF THE UNITED STATES
§ 170, pt. III (2014), https://www.govinfo.gov/content/pkg/SMAN-113/pdf/SMAN-113.pdf. [hereinafter SENATE
MANUAL].
10 U.S. CONST. art. I, § 3, cl. 7; id. art. III, § 2, cl. 3.
11 U.S. CONST. art. I, § 3, cl. 7. There is some debate about who would preside if the Vice President were impeached.
Compare Joel K. Goldstein, Can the Vice President Preside at His Own Impeachment Trial?: A Critique of Bare
Textualism, 44 ST. LOUIS U. L.J. 849, 850 (2000) with Michael Stokes Paulsen, Someone Should Have Told Spiro
Agnew, 14 CONST. COMMENT. 245 (1997).
12 U.S. CONST. art. II, § 2, cl. 1.
13 See KEITH E. WHITTINGTON, CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING 3
(1999); III JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 764 (1833) (“The offences,
to which the power of impeachment has been, and is ordinarily applied, as a remedy, are of a political character.”).
14 THE FEDERALIST NO. 37 (James Madison); see Letter from James Madison to Spencer Roane (Sept. 2, 1819), in 8
WRITINGS OF JAMES MADISON 450 (Gaillard Hunt ed. 1908).
15 III STORY, supra note 13, § 799; (“[N]o previous statute is necessary to authorize an impeachment for any official
misconduct.”); id. § 800 (“In examining the parliamentary history of impeachments, it will be found, that many
offences, not easily definable by law, and many of a purely political character, have been deemed high crimes and
misdemeanours worthy of this extraordinary remedy.”); see also MICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENT
PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS 104–05 (2000).
16 III STORY, supra note 13, § 764 (“Not but that crimes of a strictly legal character fall within the scope of the power,
(for, as we shall presently see, treason, bribery, and other high crimes and misdemeanours are expressly within it;) but
that it has a more enlarged operation, and reaches, what are aptly termed, political offences, growing out of personal
misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties
(continued...)
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immune from judicial review,17 meaning that Congress’s choices in this arena are unlikely to be
overturned by the courts. For that reason, examining the history of actual impeachments is crucial
to determining the meaning of the Constitution’s impeachment provisions.
Consistent with this backdrop, this report begins with an examination of the historical background
on impeachment, including the perspective of the Framers as informed by English and colonial
practice. It then turns to the unique constitutional roles of the House and Senate in the process,
followed by a discussion of impeachment practices throughout the country’s history. The report
concludes by noting and exploring several recurring questions about impeachment, including
legal considerations relevant to a Senate impeachment trial.
Historical Background on Impeachment
English and Colonial Practice
The concept of impeachment and the standard of “high Crimes and Misdemeanors” in the federal
Constitution originate from English, colonial, and early state practice.18 During the struggle in
England by Parliament to impose restraints on the Crown’s powers, the House of Commons
impeached and tried before the House of Lords ministers of the Crown and influential
individuals—but not the Crown itself19—who were often considered beyond the reach of the
criminal courts.20 The tool was used by Parliament to police political offenses committed against
the “system of government.”21

of political office. These are so various in their character, and so indefinable in their actual involutions, that it is almost
impossible to provide systematically for them by positive law.”); id. § 795 (“Again, there are many offences, purely
political, which have been held to be within the reach of parliamentary impeachments, not one of which is in the
slightest manner alluded to in our statute books. And, indeed, political offences are of so various and complex a
character, so utterly incapable of being defined, or classified, that the task of positive legislation would be
impracticable, if it were not almost absurd to attempt it.”).
17 See discussion infra “Are Impeachment Proceedings Subject to Judicial Review?”
18 See THE FEDERALIST NO. 65 (Alexander Hamilton) (Clinton Rossiter ed., 1961); RAOUL BERGER, IMPEACHMENT: THE
CONSTITUTIONAL PROBLEMS 54 (1973); H. COMM. ON THE JUDICIARY, 93D CONG., CONSTITUTIONAL GROUNDS FOR
PRESIDENTIAL IMPEACHMENT 4 (Comm. Print 1974), https://docs.house.gov/meetings/JU/JU00/20160622/105095/
HHRG-114-JU00-20160622-SD004.pdf [hereinafter CONSTITUTIONAL GROUNDS].
19 PETER C. HOFFER & N.E.H. HULL, IMPEACHMENT IN AMERICA, 1635–1805, 96–106 (1984).
20 CONSTITUTIONAL GROUNDS, supra note 18, at 4–7; BERGER, supra note 18, at 59–66; see JOSH CHAFETZ, CONGRESS’S
CONSTITUTION: LEGISLATIVE AUTHORITY AND THE SEPARATION OF POWERS 49–50 (2017). But see Clayton Roberts, The
Law of Impeachment in Stuart England: A Reply to Raoul Berger, 84 YALE L.J. 1419 (1975) (arguing that
impeachment during the Stuart period applied only to violations of existing law). The availability of impeachment in
England appears to have depended on whether the offense endangered the government or society. See HOFFER & HULL,
supra note 19, at 3.
21 CONSTITUTIONAL GROUNDS, supra note 18, at 4–5; II STORY, supra note 13, § 798 (“In examining the parliamentary
history of impeachments, it will be found, that many offences, not easily definable by law, and many of a purely
political character, have been deemed high crimes and misdemeanours worthy of this extraordinary remedy. Thus, lord
chancellors, and judges, and other magistrates, have not only been impeached for bribery, and acting grossly contrary
to the duties of their office; but for misleading their sovereign by unconstitutional opinions, and for attempts to subvert
the fundamental laws, and introduce arbitrary power. . . . One cannot but be struck, in this slight enumeration, with the
utter unfitness of the common tribunals of justice to take cognizance of such offences; and with the entire propriety of
confiding the jurisdiction over them to a tribunal capable of understanding, and reforming, and scrutinizing the polity
of the state, and of sufficient dignity to maintain the independence and reputation of worthy public officers.”).
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Parliament used impeachment as a tool to punish political offenses that damaged the state or
subverted the government, although impeachment was not limited to government ministers.22 At
least by the second half of the seventeenth century, impeachment in England represented a
remedy for “misconduct in high places.”23 The standard of high crimes and misdemeanors
appeared to apply to, among other things, significant abuses of a government office,
misapplication of funds, neglect of duty, corruption, abridgement of parliamentary rights, and
betrayals of the public trust.24 Punishment for impeachment was not limited to removal from
office, but could include a range of penalties upon conviction by the House of Lords, including
imprisonment, fines, or even death.25 In the English experience, the standard of high crimes and
misdemeanors appears to have addressed conduct involving an individual’s abuse of power or
office that damaged the state.26
Inheriting the English practice, the American colonies adopted their own distinctive impeachment
practices.27 These traditions extended into state constitutions established during the early years of
the Republic. The colonies largely limited impeachment to officeholders based on misconduct
committed in office, and the available punishment for impeachment was limited to removal from
office.28 Likewise, many state constitutions adopted after the Declaration of Independence in
1776, but before the federal Constitution was ratified, incorporated impeachment provisions
limiting impeachment to government officials and restricting the punishment for impeachment to
removal from office with the possibility of future disqualification from office.29 At the state level,
the body charged with trying an impeachment varied.30
Choices of the Framers: An “Americanized” Impeachment System
The English and colonial history thus informed the Framers’ consideration and adoption of
impeachment procedures at the Constitutional Convention.31 In some ways, the Framers adopted
the general framework of impeachment inherited from English practice. The English
Parliamentary structure of a bicameral legislature—dividing the power of impeachment between
the “lower” house, which impeached individuals, and an “upper” house, which tried them—was

22 BERGER, supra note 18, at 59–66; CONSTITUTIONAL GROUNDS, supra note 18, at 4–5 (citing J. Rushworth, The Tryal
of Thomas Earl of Stafford, in 8 HISTORICAL COLLECTIONS 8 (1686)); HOFFER & HULL, supra note 19, at 96–106; 15
THE AMERICAN AND ENGLISH ENCYCLOPEDIA OF LAW 1061, 1064 (David S. Garland & Lucius P. McGehee eds., 1900).
23 HOFFER & HULL, supra note 19, at 6.
24 See id. at 3–14; CONSTITUTIONAL GROUNDS, supra note 18, at 4–7; BERGER, supra note 18, at 67–73. Compare id. at
67–68 (claiming that impeachment during the Stuart period was not limited to indictable conduct) with Roberts, supra
note 20 (arguing that impeachment during the Stuart period only applied to violations of existing law).
25 BERGER, supra note 18, at 67.
26 CONSTITUTIONAL GROUNDS, supra note 18, at 4–6; GERHARDT, supra note 15, at 103–04.
27 See HOFFER & HULL, supra note 19, at 15–26.
28 Id. at 67.
29 See generally id. at 57–95; GERHARDT, supra note 15, at 3–11; CHAFETZ, supra note 20, at 96–97; see, e.g., MASS.
CONST. of 1780, pt. 2, ch. 1, § 2, art. VIII; id. § 3, art. VI; NEW YORK CONST. of 1777, art. XXXIII; PENN CONST. of
1776, § 22 (placing the power of impeachment with the commonwealth’s unicameral legislature).
30 See GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776–1787, 141–42 (1969); see, e.g., N.Y.
CONST. of 1777, arts. XXXII–XXXIII (providing that impeachments be tried before a court composed of Senators,
judges of the Supreme Court, and the chancellor).
31 GERHARDT, supra note 15, at 3–11.
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replicated in the federal system with the power to impeach given to the House of Representatives
and the power to try impeachments assigned to the Senate.32
Influenced by the impeachment experiences in the colonies, the Framers ultimately adopted an
“Americanized” impeachment practice with a republican character distinct from English
practice.33 The Framers’ choices narrowed the scope of impeachable offenses and persons subject
to impeachment as compared to English practice.34 For example, the Constitution established an
impeachment mechanism exclusively geared toward holding public officials, including the
President, accountable.35 This system contrasted with the English practice of impeachment, which
could extend to any individual save the Crown and was not limited to removal from office, but
could lead to a variety of punishments.36 Likewise, the Framers adopted a requirement of a two-
thirds majority vote for conviction on impeachment charges, shielding the process somewhat
from naked partisan control.37 This protocol also differed from the English practice, which
allowed conviction on a simple majority vote.38 In England, the Crown could also pardon
individuals following an impeachment conviction.39 In contrast, the Framers restricted the pardon
power from being applied to impeachments, rendering the impeachment process essentially
unchecked by the executive branch.40 Ultimately, the Framers’ choices in crafting the
Constitution’s impeachment provisions provide Congress with a crucial check on the other
branches of the federal government and inform the Constitution’s separation of powers.41
Impeachment Trials
The Framers also applied the lessons of English history and colonial practice in determining the
structure and location of impeachment trials.42 As mentioned above, most of the American
colonies and early state constitutions adopted their own impeachment procedures before the
establishment of the federal Constitution, placing the power to try impeachments in various
bodies.43 At the Constitutional Convention, the proper body to try impeachments posed a difficult
question.44 Several proposals were considered that would have assigned responsibility for trying
impeachments to different bodies, including the Supreme Court, a panel of state court judges, or a

32 See THE FEDERALIST NOS. 65, 81 (Alexander Hamilton) (Clinton Rossiter ed., 1961); BERGER, supra note 18, at 59–
66; U.S. CONST. art. I, § 2, cl. 5 (conferring the House with the sole power of impeachment); U.S. CONST. art. I, § 3, cl.
6 (providing that the Senate has the exclusive power to try impeachments).
33 See HOFFER & HULL, supra note 19, at xiii, 96–106; GERHARDT, supra note 15, at 3.
34 See Michael J. Gerhardt, Putting the Law of Impeachment in Perspective, 43 ST. LOUIS U. L.J. 905, 908–12 (1999)
[hereinafter Gerhardt, Perspective].
35 HOFFER & HULL, supra note 19, at 96–106.
36 Id. at 97.
37 Id.
38 Id.
39 THE AMERICAN AND ENGLISH ENCYCLOPEDIA OF LAW, supra note 22, at 1071–72.
40 See U.S. CONST. art. II, § 2, cl. 1 (providing that the President “shall have Power to grant Reprieves and Pardons for
Offenses against the United States, except in Cases of Impeachment”).
41 See THE FEDERALIST NO. 65, at 397 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (describing the power of
impeachment as a “bridle in the hands of the legislative body upon the executive servants of the government”); id. NO.
66 (noting that impeachment is an “essential check in the hands of [Congress] upon the encroachments of the
executive”); id. NO. 81 (explaining the importance of the impeachment power in checking the judicial branch).
42 CHARLES L. BLACK, IMPEACHMENT: A HANDBOOK 5–14 (1974).
43 See WOOD, supra note 30, at 141–42; see, e.g., N.Y. CONST. of 1777, arts. XXXII–XXXIII (providing that
impeachments be tried before a court composed of state senators, judges of the New York Supreme Court, and the state
chancellor).
44 See Nixon v. United States, 506 U.S. 224, 233 (1993).
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combination of these bodies.45 One objection to granting the Supreme Court authority to try
impeachments was that Justices were to be appointed by the President, casting doubt on their
ability to be independent in an impeachment trial of the President or another executive official.46
Further, a crucial legislative check in the Constitution’s structure against the judicial branch is
impeachment, as Article III judges cannot be removed by other means.47 To permit the judiciary
to have the ultimate say in one of the most significant checks on its power would subvert the
purpose of that important constitutional limitation.48
Rather than allowing a coordinate branch to play a role in the impeachment process, the Framers
decided that Congress alone would determine who is subject to impeachment. This framework
guards against, in the words of Alexander Hamilton, “a series of deliberate usurpations on the
authority of the legislature” by the judiciary.49 Likewise, the Framers’ choice to place both the
accusatory and adjudicatory aspects of impeachment in the legislature renders impeachment “a
bridle in the hands of the legislative body upon the executive” branch.50 The Framers’ choice also
imposed institutional constraints on the process.51 Dividing the power to impeach from the
authority to try and convict guards against “the danger of persecution from the prevalency of a
fractious spirit in either” body.52 In other words, requiring two legislative bodies to concur for an
impeachment conviction reduces the possibility that an individual will be removed from office
without good reason.
The Framers made one exception to the legislature’s exclusive role in the impeachment process
that promotes integrity in the proceedings. The Chief Justice of the United States presides at
impeachment trials of the President of the United States.53 This provision ensures that a Vice
President, in his usual capacity as Presiding Officer of the Senate,54 shall not preside over
proceedings that could lead to his own elevation to the presidency, a particularly important
concern at the time of the founding, when a President and Vice President could belong to rival
parties.55

45 See id. at 243–44 (White, J., joined by Blackmun, J., concurring); HOFFER & HULL, supra note 19, at 96–100; BLACK,
supra note 42, at 10.
46 James Madison, Notes on the Constitutional Convention (Sept. 8, 1787), in 2 THE RECORDS OF THE FEDERAL
CONVENTION OF 1787, at 551 (Max Farrand ed., 1911).
47 While Congress enjoys the power of the purse, U.S. CONST. art I, § 9, cl. 7, this authority is less pronounced relative
to the judiciary than the executive branch as the Constitution provides that the salary of federal judges cannot be
reduced “during their Continuance in Office.” Id. art. III, § 1.
48 See Nixon, 506 U.S. at 235; THE FEDERALIST NO. 81 (Alexander Hamilton).
49 See THE FEDERALIST NO. 81 (Alexander Hamilton).
50 See id. NO. 65; id. NO. 66 (noting that impeachment is an “essential check in the hands of [Congress] upon the
encroachments of the executive”); see Nixon, 506 U.S. at 242–43 (White, J. joined by Blackmun, J. concurring)
(“[T]here can be little doubt that the Framers came to the view at the Convention that . . . the impeachment power
must reside in the Legislative Branch to provide a check on the largely unaccountable Judiciary.”).
51 See BLACK, supra note 42, at 5–14.
52 THE FEDERALIST NO. 66 (Alexander Hamilton).
53 U.S. CONST. art. I, § 3, cl. 6.
54 Id., art. I, § 3, cl. 5.
55 Compare U.S. CONST. art. II, § 1, cl. 3 (amended 1804) (providing that the electors vote for two persons for President
with the runner-up becoming Vice President), with id. amend XII (amending the Constitution to require electors to cast
one vote for President and one for Vice President). See WOOD, supra note 30, at 212–13.
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High Crimes and Misdemeanors
The Framers narrowed the standard for impeachable conduct as compared to the English
experience. While the English Parliament never formally defined the parameters of what counted
as impeachable conduct, the Framers restricted impeachment to treason, bribery, and “other high
Crimes and Misdemeanors,” the latter phrase a standard inherited from English practice.56 This
standard applied to behavior found damaging to the state, including significant abuses of a
government office or power, misapplication of funds, neglect of duty, corruption, abridgement of
parliamentary rights, and betrayals of the public trust.57
The debates at the Constitutional Convention over what behavior should be subject to
impeachment focused mainly on the President.58 In discussing whether the President should be
removable by impeachment, Gouverneur Morris argued that the President should be removable
through the impeachment process, noting concern that the President might “be bribed by a greater
interest to betray his trust,” and pointed to the example of Charles II receiving a bribe from Louis
XIV.59
The adoption of the high crimes and misdemeanors standard during the Constitutional
Convention reveals that the Framers did not envision impeachment as the proper remedy for
simple policy disagreements with the President. During the debate, the Framers rejected a
proposal to include—in addition to treason and bribery—“maladministration” as an impeachable
offense, which would have presumably incorporated a broad range of common-law offenses.60
Although “maladministration” was a ground for impeachment in many state constitutions at the
time of the Constitution’s drafting,61 the Framers instead adopted the term “high Crimes and
Misdemeanors” from English practice. James Madison objected to including “maladministration”
as grounds for impeachment because such a vague standard would “be equivalent to a tenure
during pleasure of the Senate.”62 The Convention voted to include “high crimes and
misdemeanors” instead.63 Arguably, the Framers’ rejection of such a broad term supports the view
that congressional disagreement with a President’s policy goals is not sufficient grounds for
impeachment.64
Of particular importance to the understanding of high crimes and misdemeanors to the Framers
was the roughly contemporaneous British impeachment proceedings of Warren Hastings, the
governor general of India, which were transpiring at the time of the Constitution’s formulation
and ratification.65 Hastings was charged with high crimes and misdemeanors, which included

56 HOFFER & HULL, supra note 19, at 97; THE AMERICAN AND ENGLISH ENCYCLOPEDIA OF LAW, supra note 22, at 1066.
57 HOFFER & HULL, supra note 19, at 3–14; CONSTITUTIONAL GROUNDS, supra note 18, at 4–7; BERGER, supra note 18,
at 67–73.
58 GERHARDT, supra note 15, at 104.
59 5 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 343
(Jonathan Elliot ed., 1827) [hereinafter ELLIOT’S DEBATES].
60 RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 46, at 547, 550; see Michael J. Gerhardt, The
Constitutional Limits to Impeachment and Its Alternatives, 68 TEX. L. REV. 1, 14–15 (1989) [hereinafter Gerhardt,
Constitutional Limits].
61 Gerhardt, Constitutional Limits, supra note 60, at 29; CONSTITUTIONAL GROUNDS, supra note 18, at 11; BLACK, supra
note 42, at 29.
62 RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 46, at 550; see BLACK, supra note 42, at 29–30.
63 RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 46, at 64–65; see BLACK, supra note 42, at 28.
64 See BLACK, supra note 42, at 30.
65 CONSTITUTIONAL GROUNDS, supra note 18, at 7; HOFFER & HULL, supra note 19, at 113–15.
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corruption and abuse of power.66 At the Constitutional Convention, George Mason positively
referenced the impeachment of Hastings. At that point in the Convention, a proposal to define
impeachment as appropriate for treason and bribery was under consideration. George Mason
objected, noting that treason would not cover the misconduct of Hastings.67 He also thought
impeachment should extend to “attempts to subvert the Constitution.”68 Mason thus proposed that
maladministration be included as an impeachable offense, although, as noted above, this was
eventually rejected in favor of “high Crimes and Misdemeanors.”69
While evidence of precisely what conduct the Framers and ratifiers of the Constitution considered
to constitute high crimes and misdemeanors is relatively sparse, the evidence available indicates
that they considered impeachment to be an essential tool to hold government officers accountable
for political crimes, or offenses against the state.70 James Madison considered it “indispensable
that some provision be made for defending the community against incapacity, negligence, or
perfidy of the chief executive,” as the President might “pervert his administration into a scheme
of peculation or oppression,” or “betray his trust to foreign powers.”71 Alexander Hamilton, in
explaining the Constitution’s impeachment provisions, described impeachable offenses as arising
from “the misconduct of public men, or in other words, from the abuse or violation of some
public trust.”72 Such offenses were “POLITICAL, as they relate chiefly to injuries done immediately
to the society itself.”73 These political offenses could take innumerable forms and simply could
not be neatly delineated.74
At the North Carolina ratifying convention, James Iredell, later to serve as an Associate Justice of
the Supreme Court, noted the difficulty in defining what constitutes an impeachable offense,
beyond causing injury to the government.75 For him, impeachment was “calculated to bring
[offenders] to punishment for crime which is not easy to describe, but which every one must be
convinced is a high crime and misdemeanor against government. . . . [T]he occasion for its
exercise will arise from acts of great injury to the community.”76 He thought the President would
be impeachable for receiving a bribe or “act[ing] from some corrupt motive or other,”77 but not
merely for “want of judgment.”78 Similarly, Samuel Johnston, then the governor of North
Carolina and later the state’s first Senator, thought impeachment was reserved for “‘great
misdemeanors against the public.’”79
At the Virginia ratifying convention, a number of individuals claimed that impeachable offenses
were not limited to indictable crimes.80 For example, James Madison argued that were the

66 CONSTITUTIONAL GROUNDS, supra note 18, at 7; HOFFER & HULL, supra note 19, at 113–15.
67 RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 46, at 550.
68 Id.
69 See supra notes 59–61.
70 See THE FEDERALIST NO. 65, supra note 18; GERHARDT, supra note 15, at 104.
71 5 ELLIOT’S DEBATES, supra note 59, at 341.
72 FEDERALIST NO. 65 supra note 18.
73 Id.
74 Id.; See GERHARDT, supra note 15, at 105.
75 See GERHARDT, supra note 15, at 19.
76 4 ELLIOT’S DEBATES, supra note 59, at 113 (statement of James Iredell at Convention of North Carolina).
77 Id. at 127.
78 Id. at 126.
79 Id. at 48; see GERHARDT, supra note 15, at 19 (quoting 4 ELLIOT’S DEBATES, supra note 59, at 48 (statement of
General Johnston)).
80 See GERHARDT, supra note 15, at 19.
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President to assemble a minority of states to ratify a treaty at the expense of the other states, this
assembly would constitute an impeachable “misdemeanor.”81 Further, Virginia Governor Edmund
Randolph, who would become the nation’s first Attorney General, noted that impeachment was
appropriate for a “willful mistake of the heart,” but not for incorrect opinions.82 Randolph also
argued that impeachment was appropriate for a President’s violation of the Foreign Emoluments
Clause,83 which, he noted, guards against corruption.84
James Wilson, delegate to the Constitutional Convention and later a Supreme Court Justice,
delivered talks about impeachment at the College of Philadelphia following the adoption of the
federal Constitution. He claimed that impeachment was reserved to “political crimes and
misdemeanors, and to political punishments.”85 He argued that, in the eyes of the Framers,
impeachments did not come “within the sphere of ordinary jurisprudence. They are founded on
different principles; are governed by different maxims; and are directed to different objects.”86
Thus, for Wilson, the impeachment and removal of an individual did not preclude a later trial and
punishment for a criminal offense based on the same behavior.87
Justice Joseph Story’s writings on the Constitution echo the understanding that impeachment
applied to political offenses. He noted that impeachment applied to those “offences … committed
by public men in violation of their public trust and duties,” duties that are often “political.”88 Like
Hamilton, Story considered the range of impeachable offenses “so various in their character, and
so indefinable in their actual involutions, that it is almost impossible to provide systematically for
them by positive law.”89
At the time of ratification of the Constitution, the phrase “high crimes and misdemeanors” thus
appears understood to have applied to uniquely “political” offenses, or misdeeds committed by
public officials against the state.90 Such offenses simply resist a full delineation, as the possible
range of potential misdeeds in office cannot be determined in advance.91 Instead, the type of
misconduct that merits impeachment is worked out over time through the political process. In the
years following the Constitution’s ratification, precisely what behavior constitutes a high crime or
misdemeanor has thus been the subject of much debate.92

81 3 ELLIOT’S DEBATES, supra note 59, at 500.
82 Id. at 401.
83 U.S. CONST. art. I, § 9, cl. 8 (“[N]o Person holding any Office of Profit or Trust under [the United States], shall,
without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from
any King, Prince, or foreign State.”).
84 DAVID ROBERTSON, DEBATES AND OTHER PROCEEDINGS OF THE CONVENTION OF VIRGINIA 345 (2d ed. 1805).
85 JAMES WILSON, Lectures on Law, reprinted in 1 THE WORKS OF JAMES WILSON 426 (Robert Green McCloskey ed.,
1967).
86 Id. at 324.
87 Id.
88 III STORY, supra note 13, § 746.
89 Id. § 762.
90 Gary L. McDowell, “High Crimes and Misdemeanors:” Recovering the Intentions of the Founders, 67 GEO. WASH.
L. REV. 626, 638 (1999); BERGER, supra note 18, at 59–61; GERHARDT, supra note 15, at 103–06.
91 See GERHARDT, supra note 15, at 105.
92 Compare H. COMM. ON THE JUDICIARY, IMPEACHMENT OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED
STATES, 105TH CONG., 2D SESS., H.R. REP. NO. 105-830, at 110–18 (1998) [hereinafter CLINTON IMPEACHMENT]
(majority views), with id. at 204 (minority views). See McDowell, supra note 90, at 627; Laurence H. Tribe, Defining
“High Crimes and Misdemeanors”: Basic Principles, 67 GEO. WASH. L. REV. 712, 717 (1999).
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The Role of the House of Representatives
The Constitution grants the sole power of impeachment to the House of Representatives.93
Generally speaking, the impeachment process has often been initiated in the House by a Member
by resolution or declaration of a charge,94 although anyone—including House Members, a grand
jury, or a state legislature—may request that the House investigate an individual for impeachment
purposes.95 In modern practice, many impeachments have been sparked by referrals from an
external investigatory body.96 Beginning in the 1980s, the Judicial Conference has referred its
findings to the House recommending an impeachment investigation into a number of federal
judges who were eventually impeached.97 Similarly, in the impeachment of President Bill Clinton,
an independent counsel—a temporary prosecutor given statutory independence and charged with
investigating certain misconduct when approved by a judicial body98—first conducted an
investigation into a variety of alleged activities on the part of the President and his associates, and
then delivered a report to the House detailing conduct that the independent counsel considered
potentially impeachable.99
Regardless of the source requesting an impeachment investigation, the House has sole discretion
under the Constitution to begin any impeachment proceedings against an individual.100 In
practice, impeachment investigations have historically been handled by an already existing or
specially created subcommittee of the House Judiciary Committee.101 Recent presidential
impeachment investigations, however, have been undertaken by multiple standing committees
working in concert.102
The scope of the investigation can vary. In some instances, an entirely independent investigation
may be initiated by the House. In other cases, an impeachment investigation might rely on

93 U.S. CONST. art. I, § 2, cl. 5.
94 See 3 HINDS, supra note 5, § 2342, pp. 711–15; id. § 2400, pp. 823–26; id. § 2469, pp. 948–50; 116 CONG. REC.
11,941–42 (1970); 119 CONG. REC. 34,873 (1973); see also HOUSE PRACTICE, supra note 6, at ch. 27 § 6. For a
discussion of the impeachment procedures used in the House, see CRS Report R45769, The Impeachment Process in
the House of Representatives, by Elizabeth Rybicki and Michael Greene.
95 See GERHARDT, supra note 15, at 25; 3 LEWIS DESCHLER, PRECEDENTS OF THE UNITED STATES OF THE HOUSE OF
REPRESENTATIVES, H.R. DOC. NO. 94-661, at Ch. 14 § 5, pp. 2020–21; id. §§ 5.10–5.11, pp. 2030–31 (1994),
https://www.govinfo.gov/content/pkg/GPO-HPREC-DESCHLERS-V3/pdf/GPO-HPREC-DESCHLERS-V3.pdf
[hereinafter DESCHLER].
96 The Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 authorizes the Judicial Conference to
forward a certification to the House that impeachment of a federal judge may be warranted. 28 U.S.C. § 355.
97 See GERHARDT, supra note 15, at 176.
98 See 28 U.S.C. §§ 591–99. The statute authorizing the appointment of an independent counsel expired in 1999. Id. §
599.
99 See GERHARDT, supra note 15, at 176.
100 U.S. CONST. art. I, § 2, cl. 5. For a consideration of legal issues surrounding an impeachment investigation, see CRS
Report R45983, Congressional Access to Information in an Impeachment Investigation, by Todd Garvey. For
discussion of the House procedures used in impeachment investigations, see CRS Report R45769, The Impeachment
Process in the House of Representatives, by Elizabeth Rybicki and Michael Greene.
101 See, e.g., GERHARDT, supra note 15, at x–xi; PORTEOUS IMPEACHMENT, supra note 7, at 6 (describing the creation by
the House Judiciary Committee of an Impeachment Task Force to investigate allegations against Judge Porteous).
102 See, e.g., H.R. Res. 660, 116th Cong. (2019) (directing multiple committees to “continue their ongoing
investigations as part of the existing House of Representatives inquiry into whether sufficient grounds exist for the
House of Representatives to exercise its Constitutional power to impeach Donald John Trump, President of the United
States of America”); Press Release, Kevin McCarthy, Speaker of the House, Speaker McCarthy Opens an Impeachment
Inquiry (Sept. 12, 2023), https://www.speaker.gov/speaker-mccarthy-opens-an-impeachment-inquiry/ (announcing the
start of a “formal impeachment inquiry into President Joe Biden” by three House committees).
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records delivered by outside entities, such as those delivered by the Judicial Conference or an
independent counsel.103 Following this investigation, the full House may vote on the relevant
impeachment articles. If articles of impeachment are approved, the House chooses managers to
present the matter to the Senate.104 The Chairman of the House Managers then presents the
articles of impeachment to the Senate and requests that the body order the appearance of the
accused.105 The House Managers typically act as prosecutors in the Senate trial.106
The House has impeached twenty individuals: fifteen federal judges, one Senator, one Cabinet
member, and three Presidents.107 The consensus reflected in these proceedings is that
impeachment may serve as a means to address misconduct that does not necessarily give rise to
criminal sanction. According to congressional sources, the types of conduct that constitute
grounds for impeachment in the House appear to fall into three general categories: (1) improperly
exceeding or abusing the powers of the office; (2) behavior incompatible with the function and
purpose of the office; and (3) misusing the office for an improper purpose or for personal gain.108
Consistent with scholarship on the scope of impeachable offenses,109 congressional materials have
cautioned that the grounds for impeachment “do not all fit neatly and logically into categories”
because the remedy of impeachment is intended to “reach a broad variety of conduct by officers
that is both serious and incompatible with the duties of the office.”110
While successful impeachments and convictions of federal officials represent some clear
guideposts for what constitutes impeachable conduct, impeachment processes that do not result in
a final vote for impeachment and removal also may influence the understanding of Congress,
executive and judicial branch officials, and the public over what constitutes an impeachable
offense.111 A prominent example involves the first noteworthy attempt at a presidential
impeachment, aimed at John Tyler in 1842. At the time, the presidential practice had generally
been to reserve vetoes for constitutional, rather than policy, disagreements with Congress.112
Following President Tyler’s veto of a tariff bill on policy grounds, the House endorsed a select

103 See GERHARDT, supra note 15, at 26. The House also did not conduct independent fact finding in the impeachments
of President Bill Clinton, President Andrew Johnson, and Judge Harry E. Claiborne. Id. at 176–77. In the second
impeachment of President Trump, the House conducted no formal impeachment investigation, but the staff of the
Committee on the Judiciary presented the House with a report supporting the impeachment and outlining the events of
January 6, 2021. See Staff of H. Comm. on the Judiciary, 116th Cong., Materials in Support of H. Res. 24 Impeaching
Donald John Trump, President of the United States, for High Crimes and Misdemeanors (Comm. Print 2021).
104 HOUSE PRACTICE, supra note 6, at ch. 27, §§ 8–9.
105 GERHARDT, supra note 15, at 33.
106 3 HINDS, supra note 5, § 2301, pp. 651–52; id. § 2370, pp. 785–86, 788–89; id. § 2390, pp. 809–10, 812; id. § 2420,
pp. 862–63, 869; id. § 2449, pp. 909–10, 915.
107 See infra Table 1. See also PORTEOUS IMPEACHMENT, supra note 7, at 1 n.1.
108 HOUSE PRACTICE, supra note 6, at ch. 27 § 4. For examples of impeachments that fit into these categories, see CONG.
GLOBE, 40th Cong., 2nd Sess. 1400 (1868) (impeaching President Andrew Johnson for violating the Tenure of Office
Act); 132 CONG. REC. H4710–22 (daily ed. July 22, 1986) (impeaching Judge Harry E. Claiborne for providing false
information on federal income tax forms); 156 CONG. REC. 3155–57 (2010) (impeaching Judge G. Thomas Porteous for
engaging in a corrupt relationship with bail bondmen where he received things of value in return for helping bondsman
develop relationships with state judges).
109 GERHARDT, supra note 15, at 48–49.
110 CONSTITUTIONAL GROUNDS, supra note 18, at 17.
111 In 1970, for instance, a Subcommittee of the House Judiciary Committee was authorized to conduct an
impeachment investigation into the conduct of Justice William O. Douglas, but ultimately concluded that impeachment
was not warranted. See generally ASSOCIATE JUSTICE WILLIAM O. DOUGLAS, FINAL REPORT BY THE SPECIAL SUBCOMM.
ON H. RES. 920 OF THE COMMITTEE ON THE JUDICIARY, 91ST CONG. (Comm. Print 1970).
112 See generally MICHAEL J. GERHARDT, FORGOTTEN PRESIDENTS: THEIR UNTOLD CONSTITUTIONAL LEGACY 41–47
(2013).
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committee report condemning President Tyler and suggesting that he might be an appropriate
subject for impeachment proceedings.113 The possibility apparently ended when the Whigs, who
had led the movement to impeach, lost their House majority in the midterm elections.114 In the
years following the aborted effort to impeach President Tyler, Presidents have routinely used their
veto power for policy reasons. This practice is generally seen as an important separation of
powers limitation on Congress’s ability to pass laws rather than a potential ground for
impeachment.115
Likewise, although President Richard Nixon resigned before impeachment proceedings were
completed in the House, the approval of three articles of impeachment by the House Judiciary
Committee against him may inform lawmakers’ understanding of conduct that constitutes an
impeachable offense.116 The approved impeachment articles included allegations that President
Nixon obstructed justice by using the office of the presidency to impede the investigation into the
break-in of the Democratic National Committee headquarters at the Watergate Hotel and Office
Building and authorized a cover-up of the activities that were being investigated. President Nixon
was alleged to have abused the power of his office by using federal agencies to punish political
enemies and refusing to cooperate with the Judiciary Committee’s investigation.117 While no
impeachment vote was taken by the House, the Nixon experience nevertheless established what
some would call the quintessential case for impeachment—a serious abuse of the office of the
presidency that undermined the office’s integrity.118
At the same time, one must be cautious in extrapolating wide-ranging lessons from the lack of
impeachment proceedings in the House. Specific behavior not believed to constitute an
impeachable offense in prior contexts might be considered impeachable in a different set of
circumstances. Moreover, given the varied contextual permutations, the full scope of impeachable
behavior resists specification,119 and historical precedent may not always serve as a useful guide
to whether conduct is grounds for impeachment. For instance, no President has been impeached
for abandoning the office and refusing to govern. That this event has not occurred, however,
hardly proves that this behavior would not constitute an impeachable offense meriting removal
from office.120

113 OLIVER P. CHITWOOD, JOHN TYLER: CHAMPION OF THE OLD SOUTH 299–300 (1939).
114 GERHARDT, FORGOTTEN PRESIDENTS, supra note 112, at 57.
115 Randall K. Miller, Presidential Sanctuaries After the Clinton Sex Scandals, 22 HARV. J.L. & PUB. POL’Y 647, 706–
07 (1999) (“The Senate acquittal of President Andrew Johnson and the House’s failed attempt to impeach
President John Tyler implies that even a deeply felt congressional disagreement with a target's policies or political
philosophies alone is not enough to justify removal.”).
116 See H. COMM. ON THE JUDICIARY, IMPEACHMENT OF RICHARD M. NIXON, PRESIDENT OF THE UNITED STATES, 93D
CONG., 2D SESS., H.R. REP. NO. 93-1305, at 6–11 (1974) [hereinafter NIXON IMPEACHMENT]; United States v. Nixon,
418 U.S. 683, 713–14 (1974).
117 See NIXON IMPEACHMENT, supra note 116, at 6–11.
118 See discussion infra “Effort to Impeach President Richard Nixon.”
119 See GERHARDT, supra note 15, at 106.
120 See BLACK, supra note 42, at 33–36.
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The Role of the Senate
Historical Practice
The Constitution grants the Senate sole authority “to try all Impeachments.”121 The Senate thus
enjoys broad discretion in establishing procedures to be undertaken in an impeachment trial. For
instance, in a lawsuit challenging the Senate’s use of a trial committee to take and report
evidence, the Supreme Court in Nixon v. United States unanimously ruled that the suit posed a
nonjusticiable political question and was not subject to judicial resolution.122 The Court explained
that the term “try” in the Constitution’s provisions on impeachment was textually committed to
the Senate for interpretation and lacked sufficient precision to enable a judicially manageable
standard of review.123 In reaching this conclusion, the Court explained that the Constitution
imposes three precise requirements for impeachment trials in the Senate: (1) Members must be
under oath during the proceedings; (2) conviction requires a two-thirds vote; and (3) the Chief
Justice must preside if the President is tried.124 Given these three clear requirements, the Court
reasoned that the Framers “did not intend to impose additional limitations on the form of the
Senate proceedings by the use of the word ‘try.’”125 Thus, subject to these three clear
requirements of the Constitution, the Senate enjoys substantial discretion in establishing its own
procedures during impeachment trials.
While the Senate determines for itself how to conduct impeachment proceedings, the nature and
frequency of Senate impeachment trials largely hinge on the impeachment charges brought by the
House. The House has impeached thirteen federal district judges, a judge on the Commerce
Court, a Senator, a Supreme Court Justice, the secretary of an executive department, and three
Presidents.126 In contrast, the Senate ultimately has only convicted and removed from office seven
federal district judges and a Commerce Court judge.127 While this pattern does not mean that
Presidents or other civil officers are immune from removal based on impeachment,128 the Senate’s
acquittals may be considered to have precedential value when assessing whether particular
conduct constitutes a removable offense. For instance, the first subject of an impeachment by the
House involved a sitting U.S. Senator for allegedly conspiring to aid Great Britain’s attempt to
seize Spanish-controlled territory.129 The Senate voted to dismiss the charges in 1799,130 and no
Member of Congress has been impeached since. The House also impeached Supreme Court
Justice Samuel Chase, who was widely viewed by Jeffersonian Republicans as openly partisan
for, among other things, misapplying the law.131 The Senate acquitted Justice Chase, establishing,

121 U.S. CONST. art. I, § 3, cl. 6.
122 Nixon v. United States, 506 U.S. 224, 238 (1993). But see In re Request for Access to Grand Jury Materials Grand
Jury No. 81-1, Miami, 833 F.2d 1438, 1439–40 (11th Cir. 1987) (upholding an order granting the House Judiciary
Committee access to grand jury materials in an impeachment investigation).
123 Nixon, at 229–30.
124 Id. at 230.
125 Id.
126 See infra Table 1.
127 See infra Table 1.
128 U.S. CONST. art. II, § 4.
129 See DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: THE FEDERALIST PERIOD 1789–1801 275–81 (1997).
130 8 ANNALS OF CONG. 2318–20 (1799).
131 See discussion infra “Early Historical Practices (1789–1860).”
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at least for many, a general principle that impeachment is not an appropriate remedy for
disagreement with a judge’s judicial philosophy or decisions.132
Requirement of Oath or Affirmation
The Constitution requires Senators sitting as an impeachment tribunal to take a special oath
distinct from the oath of office that all Members of Congress must take.133 This requirement
underscores the unique nature of the role the Senate plays in impeachment trials, at least in
comparison to its normal deliberative functions.134 The Senate practice has been to require each
Senator to swear or affirm that he will “do impartial justice according to the Constitution and
laws.”135 The oath was originally adopted by the Senate before proceedings in the impeachment
of Senator Blount in 1798 and has remained largely unchanged since.136
Judgment in Cases of Impeachment
The Constitution provides that “Judgment in Cases of Impeachment shall not extend further than
to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit
under the United States.”137 While the Constitution authorizes the Senate, following an
individual’s conviction in an impeachment trial, to bar an individual from holding office in the
future, the text of the Constitution does not make clear that a vote for disqualification from future
office must be taken separately from the initial vote for conviction. Instead, the potential for a
separate vote for disqualification has arisen through the historical practice of the Senate.138 The
Senate did not choose to disqualify an impeached individual from holding future office until the
Civil War era. Federal district judge West H. Humphreys took a position as a judge in the
Confederate government but did not resign his seat in the U.S. government.139 The House
impeached Humphreys in 1862. The Senate then voted unanimously to convict Judge Humphreys
and separately voted to disqualify him from holding office in the future.140 Senate practice since
the Humphreys case has been to require a simple majority vote to disqualify an individual from
holding future office, rather than the supermajority required by the Constitution’s text for
removal, but it is unclear what justifies this result beyond historical practice.141

132 See GERHARDT, supra note 15, at 3–11; WILLIAM H. REHNQUIST, GRAND INQUESTS: THE HISTORIC IMPEACHMENTS
134 (1992). For a discussion of the “constitutional constructions” developed by the Chase impeachment, including the
standard of impeachable offenses and the role of the judiciary in the Republic, see WHITTINGTON, supra note 13, at 20–
71.
133 U.S. CONST. art. I, § 3, cl. 6.
134 See BLACK, supra note 42, at 9–10.
135 See S. DOC. NO. 99-33, at 61 (1986).
136 3 HINDS, supra note 5, § 2303.
137 U.S. CONST. art. I, § 3, cl. 7.
138 See 6 CANNON, supra note 5, § 512, pp. 705–08. See, e.g., 49 CONG. REC. 1447–48 (1913) (vote to disqualify Judge
Robert W. Archbald, thirty-nine yeas, thirty-five nays).
139 EMILY F.V. TASSEL & PAUL FINKELMAN, IMPEACHABLE OFFENSES: A DOCUMENTARY HISTORY FROM 1787 TO THE
PRESENT 114–16 (1999).
140 ELEANORE BUSHNELL, CRIMES, FOLLIES, AND MISFORTUNES: THE FEDERAL IMPEACHMENT TRIALS 123 (1992); see
U.S. CONST. art. I, § 3, cl. 7 (“Judgment in Cases of Impeachment shall not extend further than to removal from Office,
and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.”) [hereinafter
BUSHNELL].
141 U.S. CONST. art. I, § 3, cl. 7.
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The Constitution also distinguishes the impeachment remedy from the criminal process,
providing that an individual removed from office following impeachment “shall nevertheless be
liable and subject to indictment.”142 The Senate’s power to convict and remove individuals from
office, as well as to bar them from holding office in the future, thus does not overlap with
criminal remedies for misconduct. The unique nature of impeachment as a political remedy
distinct from criminal proceedings ensures that “the most powerful magistrates should be
amenable to the law.”143 Rather than helping police violations of strictly criminal activity,
impeachment is a “method of national inquest into the conduct of public men” for “the abuse or
violation of some public trust.”144 Impeachable offenses are those that “relate chiefly to injuries
done immediately to the society itself.”145 Put another way, the purpose of impeachment is to
protect the public interest, rather than impose a punitive measure on an individual.146 This
distinction was highlighted in the impeachment trial of federal district judge Alcee Hastings.
Judge Hastings had been indicted for a criminal offense, but was acquitted.147 In 1988, the House
impeached Hastings for much of the same conduct for which he had been indicted. Judge
Hastings argued that the impeachment proceedings constituted “double jeopardy” because of his
previous acquittal in a criminal proceeding.148 The Senate rejected his motion to dismiss the
articles against him.149 The Senate voted to convict and remove Judge Hastings on eight articles,
but it did not disqualify him from holding office in the future.150 Judge Hastings was later elected
to the House of Representatives.151
History of Impeachment in Congress
The Constitution provides that the President, Vice President, and all civil officers are subject to
impeachment for “treason, bribery, or other high Crimes and Misdemeanors.”152 The meaning of
high crimes and misdemeanors, like the other provisions in the Constitution relevant to
impeachment, is not primarily determined through the development of jurisprudence in the courts.
Instead, the meaning of the Constitution’s impeachment clauses is “liquidated” over time, or
determined through historical practice.153 The Framers did not delineate with specificity the
complete range of behavior that would merit impeachment, as the scope of possible “offenses
committed by federal officers are myriad and unpredictable.”154 According to one scholar,

142 See id. art. I, § 3, cl. 7.
143 WILSON, supra note 85, at 425–26.
144 See THE FEDERALIST NO. 65 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
145 Id.
146 8 ANNALS OF CONG. 2251 (1798).
147 H.R. Res. 499, 100th Cong., 2d Sess. (1988); H. COMM. ON THE JUDICIARY, IMPEACHMENT OF JUDGE ALCEE L.
HASTINGS, REPORT OF THE COMM. ON THE JUDICIARY TO ACCOMPANY H. RES. 499, 100TH CONG., 2D SESS., H.R. REP.
NO. 100-810, at 1–5, 66 (1988) [hereinafter HASTINGS IMPEACHMENT].
148 IMPEACHMENT OF JUDGE ALCEE L. HASTINGS, MOTIONS OF JUDGE ALEE L. HASTINGS TO DISMISS ARTICLES I–XV AND
XVII OF THE ARTICLES OF IMPEACHMENT AGAINST HIM AND SUPPORTING AND OPPOSING MEMORANDA, 101ST CONG., 1ST
SESS., S. DOC. NO. 101-4, at 48–65 (1989).
149 The Impeachment Trial of Alcee L. Hastings (1989) U.S. District Judge, Florida, U.S. SENATE,
https://www.senate.gov/artandhistory/history/common/briefing/Impeachment_Hastings.htm (last visited Oct. 25, 2019).
150 135 CONG. REC. S13, 783–88 (daily ed. Oct. 20, 1989).
151 See Waggoner v. Hastings, 816 F. Supp. 716 (S.D. Fla. 1993).
152 U.S. CONST. art. II, § 4.
153 THE FEDERALIST NO. 37 (James Madison); Letter from James Madison to Spencer Roane, supra note 14, at 450.
154 Keith E. Whittington, A Formidable Weapon of Faction? The Law and Politics of Impeachment, 55 WAKE FOREST
(continued...)
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impeachments are sometimes “aimed at articulating, establishing, preserving, and protecting
constitutional norms,” or “‘constructing’ constitutional meaning and practices.”155 At times,
impeachment might be used to reinforce an existing norm, indicating that certain behavior
continues to constitute grounds for removal; in others, it may be used to establish a new norm,
setting a marker that signifies what practices are impeachable for the future.156 Examining the
history of impeachment in Congress can thus illuminate the constitutional meaning of
impeachment, including when Congress has established or reaffirmed a particular norm.
Early Historical Practices (1789–1860)
Congressional understanding of the scope of activities subject to impeachment and the potential
persons who may be impeached was first put to the test during the Adams Administration. In
1797, letters sent to President Adams revealed a conspiracy by Senator William Blount—in
violation of the U.S. government’s policy of neutrality on the matter and the Neutrality Act157—to
organize a military expedition with the British to invade land in the American Southwest under
Spanish control.158 The House voted to impeach Senator Blount on July 7, 1797,159 while the
Senate voted to expel Senator William Blount the next day.160 Before impeaching Senator Blount,
several House Members questioned whether Senators were “civil officers” subject to
impeachment.161 Samuel W. Dana of Connecticut argued that Members of Congress must be civil
officers because other provisions of the Constitution that mention offices appear to include
holding legislative office.162 Despite already having voted to impeach Senator Blount, it was not
until early in the next year that the House adopted specific articles of impeachment against
him.163
At the Senate impeachment trial in 1799, Blount’s attorneys argued that impeachment was
improper because Blount had already been expelled from his Senate seat and had not been
charged with a crime.164 The primary issue of debate, however, was whether Members of
Congress qualified as civil officers subject to impeachment. The House prosecutors argued that
under the American system, as in England, virtually anyone was subject to impeachment.165 The

L. REV. 381, 396 (2020); III STORY, supra note 13, § 764 (“Not but that crimes of a strictly legal character fall within
the scope of the power, (for, as we shall presently see, treason, bribery, and other high crimes and misdemeanours are
expressly within it;) but that it has a more enlarged operation, and reaches, what are aptly termed, political offences,
growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests, in the
discharge of the duties of political office. These are so various in their character, and so indefinable in their actual
involutions, that it is almost impossible to provide systematically for them by positive law.”); id. § 797 (“Again, there
are many offences, purely political, which have been held to be within the reach of parliamentary impeachments, not
one of which is in the slightest manner alluded to in our statute book. And, indeed, political offences are of so various
and complex a character, so utterly incapable of being defined, or classified, that the task of positive legislation would
be impracticable, if it were not almost absurd to attempt it.”).
155 Whittington, supra note 154, at 17–18 (quoting WHITTINGTON, supra note 13).
156 Id.
157 1 Stat. 381, 384 § 5 (June 5, 1794) (codified as amended at 18 U.S.C. § 960).
158 See generally BUCKNER F. MELTON, THE FIRST IMPEACHMENT: THE CONSTITUTION’S FRAMERS AND THE CASE OF
SENATOR WILLIAM BLOUNT 60–103 (1998); GERHARDT, supra note 15, at 48; CURRIE, supra note 129, at 275–81.
159 TASSEL & FINKELMAN, supra note 139, at 87–88.
160 GERHARDT, supra note 15, at 48; see U.S. CONST. art. I, § 5.
161 CURRIE, supra note 129, at 276.
162 Id. (citing U.S. CONST. art. I, §§ 3–9).
163 TASSEL & FINKELMAN, supra note 139, at 87–88; see generally MELTON, supra note 158, at 104–89.
164 CURRIE, supra note 129, at 277.
165 Id. at 279.
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defense responded that this broad interpretation of the impeachment power would enable
Congress to impeach state officials as well as federal, upending the proper division of federal and
state authorities in the young Republic.166 The Senate voted to defeat a resolution that declared
Blount was a “civil officer” and therefore subject to impeachment.167 The Senate ultimately voted
to dismiss the impeachment articles brought against Blount because it lacked jurisdiction over the
matter, although the impeachment record does not reveal the precise basis for this conclusion.168
The House has not impeached a Member of Congress since.
The first federal official to be impeached and removed from office was John Pickering, a federal
district judge. The election of President Thomas Jefferson in 1800, along with Jeffersonian
Republican majorities in both Houses of Congress, signaled a shift from Federalist party control
of government.169 Much of the federal judiciary at this early stage of the Republic were members
of the Federalist party, and the new Jeffersonian Republican majority strongly opposed the
Federalist-controlled courts.170 John Pickering was impeached by the House of Representatives in
1803171 and convicted by the Senate on March 12, 1804.172 The circumstances of Judge
Pickering’s impeachment are somewhat unique as it appears that the judge had been mentally ill
for some time, although the articles of impeachment did not address Pickering’s mental faculties
but instead accused him of drunkenness, blasphemy on the bench, and refusing to follow legal
precedent.173 Judge Pickering did not appear at his trial, and Senator John Quincy Adams
apparently served as a defense counsel.174 Following debate in a closed session, the Senate voted
to permit evidence of Judge Pickering’s insanity, drunkenness, and behavior on the bench.175 The
Senate also rejected a resolution to disqualify three Senators, who were previously in the House
and had voted to impeach Judge Pickering, from participating in the impeachment trial.176 The
Senate voted to convict Judge Pickering guilty as charged, but the articles did not explicitly
specify that any of Pickering’s behavior constituted a high crime or misdemeanor.177 Objections
to the framing of the question at issue caused several Senators to withdraw from the trial.178

166 Id.
167 8 ANNALS OF CONG. 2317–18 (1799).
168 HOFFER & HULL, supra note 19, at 155, 161. 9 ANNALS OF CONG. 2648–49 (1799). CURRIE, supra note 129, at 280–
81. While the Senate’s vote to dismiss for lack of jurisdiction might also be based on the fact that the Senator had been
expelled from Congress, and therefore did not occupy an “office,” it is generally accepted that the Senate’s decision
stands for the proposition that impeachment does not extend to Members of Congress. See HOUSE PRACTICE, supra note
6, at ch. 27 §§ 2–3.; H. COMM. ON THE JUDICIARY, 93D CONG., IMPEACHMENT, SELECTED MATERIAL 692 (Comm. Print
1973) [hereinafter IMPEACHMENT, SELECTED MATERIALS]; Motions Sys. Corp. v. Bush, 437 F.3d 1356, 1373 (Fed. Cir.
2006) (per curiam) (“This principle has been accepted since 1799, when the Senate, presented with articles of
impeachment against Senator William Blount, concluded after four days of debate that a Senator was not a civil officer
. . . for purposes of the Impeachment Clause.”)
169 HOFFER & HULL, supra note 19, at 181.
170 Id. at 206.
171 See 12 ANNALS OF CONG. 642 (1803); 13 ANNALS OF CONG. 380 (1803).
172 See 13 ANNALS OF CONG. 368 (1804); HOFFER & HULL, supra note 19, at 208, 216–17.
173 BUSHNELL, supra note 140, at 45–46.
174 HOFFER & HULL, supra note 19, at 211–13.
175 BUSHNELL, supra note 140, at 48–51. Scholars have noted that the Senate vote in favor of admitting evidence of
insanity likely stemmed from two opposing reasons. The minority party Federalists—of which Judge Pickering was a
member—considered evidence of insanity a reason to acquit the judge because it was not an impeachable offense. The
majority party Republicans, in contrast, considered insanity a reason to remove him from the bench. Id. at 48–49.
176 Id. at 46–47.
177 13 ANNALS OF CONG. 367 (1804); BUSHNELL, supra note 140, at 53–54.
178 BUSHNELL, supra note 140, at 53–54.
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On the same day the Senate convicted Judge Pickering, the House of Representatives impeached
Supreme Court Justice Samuel Chase.179 Like the impeachment trial of Judge Pickering, the
proceedings occurred following the election of President Thomas Jefferson and amid intense
conflict between the Federalists and Jeffersonian Republicans.180 Justice Chase was viewed by
Jeffersonian Republicans as openly partisan, and in fact the Justice openly campaigned for
Federalist John Adams in the presidential election of 1800.181 Republicans also took issue with
Justice Chase’s aggressive approach to jury instructions in Sedition Act prosecutions.182 The eight
articles of impeachment accused him of acting in an “arbitrary, oppressive, and unjust” manner at
trial, misapplying the law, and expressing partisan political views to a grand jury.183 The Senate
trial began on February 4, 1805. Both the House Managers and defense counsel for Justice Chase
presented witnesses detailing the Justice’s behavior.184 While some aspects of the dispute focused
on whether Justice Chase took certain actions, the primary conflict centered on whether his
behavior was impeachable.185 Before reaching a verdict, the Senate approved a motion from
Senator James Bayard, a Federalist from Delaware, that the underlying question be whether
Justice Chase was guilty of high crimes and misdemeanors, rather than guilty as charged.186 Of
the eight articles, a majority of Senators voted to convict on three, while the remaining five did
not muster a majority for conviction.187 Despite that majority, the Senate vote ultimately fell short
of the necessary two-thirds majority to secure a conviction on any of the articles.188
The trial raised several questions that have recurred throughout the history of impeachments. For
example, is impeachment limited to criminal acts, or does it extend to noncriminal behavior?189
The opposing sides in the Chase case took differing views on this matter, as they would in later
impeachments to come.190 Due in part to the charged political atmosphere of the historical
context, the attempted impeachment of Justice Chase has also come to represent an important
limit on the scope of the impeachment remedy. Commentators have interpreted the acquittal of
Justice Chase as establishing that impeachment does not extend to congressional disagreement

179 TASSEL & FINKELMAN, supra note 139, at 101; 13 ANNALS OF CONG. 363–68 (1804) (Senate conviction of Judge
Pickering); 13 ANNALS OF CONG. 1180–81 (1804) (House impeachment of Justice Chase).
180 HOFFER & HULL, supra note 19, at 228–38.
181 BUSHNELL, supra note 140, at 62–63.
182 See CHAFETZ, supra note 20, at 108.
183 IMPEACHMENT, SELECTED MATERIALS, supra note 168, at 133–35.
184 BUSHNELL, supra note 140, at 63–73.
185 Id. at 67–84; see GERHARDT, supra note 15, at 181.
186 BUSHNELL, supra note 140, at 84.
187 14 ANNALS OF CONG. 664–69 (1804); TASSEL & FINKELMAN, supra note 139, at 103.
188 TASSEL & FINKELMAN, supra note 139, at 103.
189 BUSHNELL, supra note 140, at 82–87.
190 See NIXON IMPEACHMENT, supra note 116, at 362–72 (minority views); 3 DESCHLER, supra note 95, at Ch. 14 §§
3.8–3.11, pp. 1996–2003.
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with a judge’s opinions or judicial philosophy.191 At least some Senators who voted to acquit did
not consider the alleged offenses as rising to the level of impeachable behavior.192
By the time of the next impeachment in 1830, both houses of Congress were controlled by
Jacksonian Democrats, and the federal courts were unpopular with Congress and the public.193
The House of Representatives impeached James Peck, a federal district judge, for abusing his
judicial authority. The sole article accused the judge of holding an attorney in contempt for
publishing an article critical of Peck and barring the attorney from practicing law for eighteen
months. The context surrounding Judge Peck’s actions involved disputes over French and Spanish
land grant titles following the transfer of land in the Louisiana territory from French to U.S.
control.194 Shortly after Missouri was admitted to the United States as part of the Missouri
Compromise in 1821, Judge Peck decided a land rights case against the claimants in favor of the
United States.195 The attorney for the plaintiffs wrote an article critical of the decision in a local
paper.196 Judge Peck held the attorney in contempt, sentenced him to jail for twenty-four hours,
and barred him from practicing law for eighteen months.197
The House impeached Judge Peck by a wide margin.198 Of central concern during the Senate trial
were the limits of a judge’s common law contempt power, a matter that appeared to be in
dispute.199 The Senate ultimately acquitted Judge Peck, with roughly half of the Jacksonian
Democrats voting against conviction.200 Shortly thereafter, Congress passed a law reforming and
defining the scope of the judicial contempt power.201
In the midst of the Civil War, federal district judge West H. Humphreys was appointed to a
position as a judge in the Confederate government, but he did not resign as a U.S. federal
judge.202 In 1862, the House impeached and the Senate convicted Judge Humphreys for joining
the Confederate government and abandoning his position.203 As in the trial of Judge Pickering
previously, Judge Humphreys did not attend the proceedings.204 Unlike in the case of Judge
Pickering, however, no defense was offered in the impeachment trial of Judge Humphreys.205

191 See David P. Currie, The Constitution in Congress: The Most Endangered Branch, 1801–1805, 33 WAKE FOREST L.
REV. 219, 259 (1998); REHNQUIST, supra note 132, at 114, 125; CHAFETZ, supra note 20, at 150. This is not to say that
impeachment had no effect on Justice Chase, see id. at 109 (arguing that Justice Chase returned to the bench “humbled”
and that one result of the affair was that the Marshall Court “made its peace with Republican politics); or the judiciary
more broadly. See REHNQUIST, supra note 132, at 125; Gene Healy, Indispensable Remedy: The Broad Scope of the
Constitution’s Impeachment Power, CATO INST. 21–22 (2018), https://www.cato.org/sites/cato.org/files/pubs/pdf/gene-
healy-indispensable-remedy-white-paper.pdf (noting that a result of the Chase impeachment was to “foster a new norm
against blatant partisanship from the bench”). For a discussion of the implications of the Chase impeachment for the
judiciary, see WHITTINGTON, supra note 13, at 20–71.
192 See Gerhardt, Perspective, supra note 34, at 921.
193 BUSHNELL, supra note 140, at 91.
194 TASSEL & FINKELMAN, supra note 139, at 108–09; BUSHNELL, supra note 140, at 92.
195 TASSEL & FINKELMAN, supra note 139, at 108–09.
196 Id.
197 Id.
198 6 CONG. DEB. 818–19 (1830).
199 BUSHNELL, supra note 140, at 91–113.
200 7 CONG. DEB. 45 (1831).
201 See Act of Mar. 2, 1831, ch. 98, 4 Stat. 487.
202 TASSEL & FINKELMAN, supra note 139, at 114–16.
203 3 HINDS, supra note 5, §§ 2385–86, pp. 805–07; see also id. § 2390, pp. 810–11; id. § 2396–97, pp. 817–20.
204 BUSHNELL, supra note 140, at 115.
205 Id.
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Impeachment of Andrew Johnson
The impeachment and trial of President Andrew Johnson took place in the shadow of the Civil
War and the assassination of President Abraham Lincoln.206 President Johnson was a Democrat
and former slave owner who was the only southern Senator to remain in his seat when the South
seceded from the Union.207 President Lincoln, a Republican, appointed Johnson military governor
of Tennessee in 1862,208 and Johnson was later selected as Lincoln’s second-term running mate
on a “Union” ticket.209 Given these unique circumstances, President Johnson lacked both a party
and geographic power base when in office, which likely isolated him when he assumed the
presidency following the assassination of President Lincoln.210
The majority Republican Congress and President Johnson clashed over, among other things,
Reconstruction policies implemented in the former slave states and control over officials in the
executive branch.211 President Johnson vetoed twenty-one bills while in office, compared to
thirty-six vetoes by all prior Presidents. Congress overrode fifteen of Johnson’s vetoes, compared
to just six with prior Presidents.212 On March 2, 1867, Congress reauthorized, over President
Johnson’s veto, the Tenure of Office Act, extending its protections for all officeholders.213 In
essence, the Act provided that all federal officeholders subject to Senate confirmation could not
be removed by the President except with Senate approval,214 although the reach of this
requirement to officials appointed by a prior administration was unclear.215 Congressional
Republicans apparently anticipated the possible impeachment of President Johnson when drafting
the legislation; Republicans already knew of President Johnson’s plans to fire Secretary of War
Edwin Stanton, and the Act provided that a violation of its terms constituted a “high
misdemeanor.”216
President Johnson then fired Secretary Stanton without the approval of the Senate. Importantly,
his Cabinet unanimously agreed that the new restrictions on the President’s removal power
imposed by the Tenure of Office Act were unconstitutional.217 Shortly thereafter, on February 24,
1868, the House voted to impeach President Johnson.218 The impeachment articles adopted by the
House against President Johnson included defying the Tenure of Office Act by removing Stanton
from office219 and violating (and encouraging others to violate) the Army Appropriations Act.220

206 See REHNQUIST, supra note 132, at 185–98.
207 BUSHNELL, supra note 140, at 128.
208 Id.
209 TASSEL & FINKELMAN, supra note 139, at 222.
210 BUSHNELL, supra note 140, at 128.
211 See WHITTINGTON, supra note 13, at 113–57; see generally MICHAEL LES BENEDICT, THE IMPEACHMENT AND TRIAL
OF ANDREW JOHNSON 1–25 (1973).
212 TASSEL & FINKELMAN, supra note 139, at 222–23.
213 Tenure of Office Act, 14 Stat. 430 (1867); TASSEL & FINKELMAN, supra note 139, at 224.
214 Tenure of Office Act, 14 Stat. 430 (1867); see Michael J. Gerhardt, Constitutional Arrogance, 164 U. PA. L. REV.
1649, 1663 (2016).
215 REHNQUIST, supra note 132, at 228.
216 LES BENEDICT, supra note 211, at 92–125.
217 REHNQUIST, supra note 132, at 230.
218 CONG. GLOBE, 40th Cong., 2nd Sess. 1400 (1868).
219 See Act of Mar. 2, 1867, ch. 154, § 6, 14 Stat. 430. Incidentally, such tenure protections were later invalidated as
unconstitutional by the Supreme Court. See Myers v. United States, 272 U.S. 52, 106–07 (1926).
220 TASSEL & FINKELMAN, supra note 139, at 226.
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One article of impeachment also accused the President of making “utterances, declarations,
threats, and harangues” against Congress.221
The Senate appointed a committee to recommend rules of procedure for the impeachment trial
which then were adopted by the Senate, including a one-hour time limit for each side to debate
questions of law that would arise during the trial.222 Chief Justice Salmon P. Chase presided over
the trial and was sworn in by Associate Justice Samuel Nelson.223 During the swearing-in of the
individual Senators, the body paused to debate whether Senator Benjamin Wade of Indiana, the
president pro tempore of the Senate, was eligible to participate in the trial. Because the office of
the Vice President was empty, under the laws of succession at that time Senator Wade would
assume the presidency upon a conviction of President Johnson. Ultimately, the Senator who
raised this point, Thomas Hendricks of Indiana, withdrew the issue and Senator Wade was sworn
in.224
An important point of contention at the trial was whether the Tenure of Office Act protected
Stanton at all because of his appointment by President Lincoln, rather than President Johnson.225
Counsel for President Johnson argued that impeachment for violating a statute whose meaning
was unclear was inappropriate, and the statute barring removal of the Secretary of War was an
unconstitutional intrusion into the President’s authority under Article II.226
The Senate failed to convict President Johnson with a two-thirds majority by one vote on three
articles, and it failed to vote on the remaining eight.227 Reports suggest that several Senators were
prepared to acquit if their votes were needed.228 Seven Republicans voted to acquit; of those
Senators, some thought it questionable whether the Tenure of Office Act applied to Stanton and
believe it was improper to impeach a President for incorrectly interpreting an arguably ambiguous
law.229
The implications of the acquittal of President Johnson are difficult to encapsulate neatly.230 Some
commentators have concluded that the failure to convict President Johnson coincides with a
general understanding that while impeachment is appropriate for abuses of power or violations of
the public trust, it does not pertain to political or policy disagreements with the President, no
matter how weighty.231 Of course, it bears mention that by the time of the Senate trial Johnson
was in the last year of his Presidency, was not going to receive a nomination for President by
either major political party for the next term, and appears to have promised in private to appoint a
replacement for Stanton that could be confirmable.232 More broadly, the Johnson impeachment

221 Id. at 235.
222 REHNQUIST, supra note 132, at 219–20.
223 Id. at 221.
224 See generally AKHIL REED AMAR, AMERICA’S UNWRITTEN CONSTITUTION (2012).
225 REHNQUIST, supra note 132, at 221.
226 Id. at 230–31.
227 3 HINDS, supra note 5, § 2440 (vote on article 11); id. § 2443, pp. 897–901 (vote on articles 2 and 3); see
REHNQUIST, supra note 132, at 234–35.
228 TASSEL & FINKELMAN, supra note 139, at 221; see generally HANS L. TREFOUSSE, IMPEACHMENT OF A PRESIDENT:
ANDREW JOHNSON, THE BLACKS, AND RECONSTRUCTION 169 (1975).
229 REHNQUIST, supra note 132, at 240–46.
230 See generally WHITTINGTON, supra note 13, at 115; TREFOUSSE, supra note 228, at 180–90.
231 HOFFER & HULL, supra note 19, at 101; Gerhardt, Perspective, supra note 34, at 921–22. This is not to say that the
acquittal of President Johnson necessarily was a triumph or vindication of his actions. See WHITTINGTON, supra note
13, at 152 (arguing that “Johnson had been disciplined and his actions repudiated, even if he had not been removed”).
232 REHNQUIST, supra note 132, at 247.
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also represented a larger struggle between Congress and the President over the scope of executive
power, one that arguably reconstituted their respective roles following the Civil War presidency
of Abraham Lincoln.233
Postbellum Practices (1865–1900)
The postbellum experience in American history saw a variety of government officials impeached
on several different grounds. These examples provide important principles that guide the practice
of impeachment through the present day. For example, the Senate has not always conducted a
trial following an impeachment by the House. In 1873, the House impeached federal district
judge Mark. H. Delahay for, among other things, drunkenness on and off the bench.234 The
impeachment followed an investigation by a subcommittee of the House Judiciary Committee
into his conduct.235 Following the House vote on impeachment, Judge Delahay resigned before
written impeachment articles were drawn up, and the Senate did not hold a trial.236 The
impeachment of Judge Delahay shows that the scope of impeachable behavior is not limited to
strictly criminal behavior; Congress has been willing to impeach individuals for behavior that is
not indictable, but still constitutes an abuse of an individual’s power and duties.
This period of American history was fraught with partisan conflict over Reconstruction.237
Besides President Johnson, a number of other individuals were investigated by Congress during
this time for purposes of impeachment. For example, in 1873, the House voted to authorize the
House Judiciary Committee to investigate the behavior of Edward H. Durrell, federal district
judge for Louisiana.238 A majority of the House Judiciary Committee reported in favor of
impeaching Judge Durell for corruption and usurpation of power, including interfering with the
state’s election.239 Judge Durrell resigned on December 1, 1874, and the House discontinued
impeachment proceedings.240
The first and only time a Cabinet-level official was impeached occurred during the presidential
administration of Ulysses S. Grant. Grant’s Secretary of War, William W. Belknap, was
impeached in 1876 for allegedly receiving payments in return for appointing an individual to
maintain a trading post in Indian territory.241 Belknap resigned two hours before the House
unanimously impeached him,242 but the Senate still conducted a trial in which Belknap was
acquitted.243 During the trial, upon objection by Belknap’s counsel that the Senate lacked
jurisdiction because Belknap was now a private citizen, the Senate voted 37–29 in favor of
jurisdiction.244 A majority of Senators voted to convict Belknap, but no article mustered a two-
thirds majority, resulting in acquittal. A number of Senators voting to acquit indicated that they

233 See WHITTINGTON, supra note 13, at 132–40.
234 3 HINDS, supra note 5, §§ 2504–05, pp. 1008–10; HOUSE PRACTICE, supra note 6, at ch. 27 § 4.
235 3 HINDS, supra note 5, §§ 2504–05, pp. 1008–10.
236 TASSEL & FINKELMAN, supra note 139, at 119.
237 See generally ERIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION, 1863–77 (1988).
238 3 HINDS, supra note 5, §§ 2506–08, pp. 1011–14.
239 Id.
240 Id. § 2509, pp. 1015–16. For a defense of Judge Durell’s actions in the matters in question, see Charles Lane,
Edward Henry Durell: A Study in Reputation, 13 GREEN BAG 2D 153, 153–68 (2010).
241 3 HINDS, supra note 5, §§ 2444–46, pp. 902–06; see CONSTITUTIONAL GROUNDS supra note 18, at 20.
242 BUSHNELL, supra note 140, at 165.
243 3 HINDS, supra note 5, §§ 2446–68, pp. 906–47.
244 Id. §§ 2459–60, pp. 933–36. Two of the thirty-seven voting “guilty” and twenty-two of the twenty-five voting “not
guilty” stated that they believed the Senate lacked jurisdiction in the case. Id. § 2467, pp. 945–46.
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did so because the Senate lacked jurisdiction over an individual no longer in office.245 Although
bribery is explicitly included as an impeachable offense in the Constitution, the impeachment
articles brought against Belknap instead charged his behavior as constituting high crimes and
misdemeanors.246 Bribery was mentioned at the Senate trial, but it was not specifically referenced
in the impeachment articles themselves.247
Early Twentieth Century Practices
The twentieth century saw further development of the scope of conduct considered by Congress
to be impeachable, including the extent to which noncriminal conduct can constitute impeachable
behavior and the proper role of a federal judge. The question of judicial review of impeachments
also received its first treatment in the federal courts.
The question of whether Congress can designate particular behavior as a “high crime or
misdemeanor” by statute arose in the impeachment of Charles Swayne, a federal district judge for
the Northern District of Florida, during the first decade of the twentieth century. A federal statute
provided that federal district judges live in their districts and that anyone violating this
requirement was “guilty of a high misdemeanor.”248 Judge Swayne’s impeachment originated
from a resolution passed by the Florida legislature requesting the state’s congressional delegation
to recommend an investigation into his behavior.249 The procedures followed by the House in
impeaching Judge Swayne were somewhat unique. First, the House referred the impeachment
request to the Judiciary Committee for investigation. Following this investigation, the House
voted to impeach Judge Swayne based on the report prepared by the committee.250 The committee
was then tasked with preparing articles of impeachment to present to the Senate.251 The House
then voted again on these individual articles, each of which received less support than the single
prior impeachment vote had received.252 The impeachment articles accused Judge Swayne of a
variety of offenses, including misusing the office, abusing the contempt power, and living outside
his judicial district. At the trial in the Senate, Judge Swayne essentially admitted to certain
accused behavior, although his attorneys did dispute the residency charge, and Swayne instead
argued that his actions were not impeachable.253 The Senate vote failed to convict Judge Swayne
on any of the charges brought by the House.254
The impeachability of certain noncriminal behavior for federal judges was firmly established by
the impeachment of Judge Robert W. Archbald in 1912. Judge Archbald served as a federal
district judge before being appointed to the short-lived U.S. Commerce Court, which was created
to review decisions of the Interstate Commerce Commission.255 He was impeached by the House
for behavior occurring both as a federal district judge and as a judge on the Commerce Court.256

245 BUSHNELL, supra note 140, at 186.
246 See U.S. CONST. art. II, § 4.
247 BUSHNELL, supra note 140, at 170.
248 REVISED STATUTES OF THE UNITED STATES PASSED AT THE FIRST SESS. OF THE FORTY-THIRD CONG., 1873–’74, Title
XIII, Ch. 2 § 551 (2d ed., 1878); TASSEL & FINKELMAN, supra note 139, at 123–24.
249 BUSHNELL, supra note 140, at 191.
250 39 CONG. REC. 248 (1904).
251 BUSHNELL, supra note 140, at 191–92.
252 Id. at 191–93.
253 TASSEL & FINKELMAN, supra note 139, at 123–25.
254 39 CONG. REC. 3467–72 (1905).
255 TASSEL & FINKELMAN, supra note 139, at 132.
256 48 CONG. REC. 8904–34 (1912).
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The impeachment articles accused Judge Archbald of, among other things, using his position as a
judge to generate profitable business deals with potential future litigants in his court.257 This
behavior did not violate any criminal statute and did not appear to violate any laws regulating
judges.258 Judge Archbald argued at trial that noncriminal conduct was not impeachable. The
Senate voted to convict him on five articles and also voted to disqualify him from holding office
in the future.259 Four of those articles centered on behavior that occurred while Judge Archbald
sat on the Commerce Court, whereas the fifth described his conduct over the course of his
career.260
In the 1920s, a series of corruption scandals swirled around the administration of President
Warren G. Harding. Most prominently, the Teapot Dome Scandal, which involved the
noncompetitive lease of government land to oil companies, implicated many government officials
and led to resignations and the criminal conviction and incarceration of a Cabinet-level official.261
The Secretary of the Navy, at the time Edwin Denby, was entrusted with overseeing the
development of oil reserves that had recently been located. The Secretary of the Interior, Albert
Fall, convinced Denby that the Interior Department should assume responsibility for two of the
reserve locations, including in Teapot Dome, Wyoming.262 Secretary Fall then leased the reserves
to two of his friends, Harry F. Sinclair and Edward L. Doheny.263 Revelations of the lease without
competitive bidding launched a lengthy congressional investigation that sparked the eventual
criminal conviction of Fall for bribery and conspiracy and Sinclair for jury tampering.264
President Harding, however, died in 1923, before congressional hearings began. The affair also
generated significant judicial decisions examining the scope of Congress’s investigatory
powers.265
One aspect of the controversy included an impeachment investigation into the decisions of then-
Attorney General Harry M. Daugherty.266 In 1922, the House of Representatives referred a
resolution to impeach Daugherty for a variety of activities, including his failure to prosecute those
involved in the Teapot Dome Scandal, to the House Judiciary Committee.267 The House Judiciary
Committee eventually found there was not sufficient evidence to impeach Daugherty. But in
1924, a Senate special committee was formed to investigate similar matters.268 That investigation

257 TASSEL & FINKELMAN, supra note 139, at 133.
258 Id. at 134.
259 49 CONG. REC. 1438–48 (1913).
260 BUSHNELL, supra note 140, at 221.
261 See HASIA DINER, THE TEAPOT DOME SCANDAL, 1922–24, in 1 CONGRESS INVESTIGATES: A CRITICAL AND
DOCUMENTARY HISTORY 460–74 (Roger A. Brunset al. eds., 2011) [hereinafter DINER].
262 Id. at 461.
263 Id.
264 Id. at 463–74.
265 See McGrain v. Daugherty, 273 U.S. 135, 174–75 (1927) (“We are of opinion that the power of inquiry-with process
to enforce it-is an essential and appropriate auxiliary to the legislative function.”); Sinclair v. United States, 279 U.S.
263, 295 (1929) (observing that Congress has authority to require disclosures in aid of its constitutional powers),
overruled on other grounds by United States v. Gaudin, 515 U.S. 506 (1995).
266 6 CANNON, supra note 5, §§ 536–38, pp. 769–73.
267 See 62 CONG. REC. 12,381 (1922); see generally H. COMM. ON THE JUDICIARY, 67TH CONG., CHARGES OF HON.
OSCAR E. KELLER AGAINST THE ATTORNEY GENERAL AND THE ATTORNEY GENERAL’S ANSWERS THERETO BEFORE THE
COMMITTEE ON THE JUDICIARY, HOUSE OF REPRESENTATIVES, SIXTY-SEVENTH CONG., THIRD SESS. ON H. RES. 425
(Comm. Print 1922).
268 S. Res. 157, 68th Cong., 1st Sess. (1924); Hearings Before the Select Committee on Investigation of the Attorney
General, United States Senate, Investigation of Hon. Harry M. Daugherty, Formerly Attorney General of the United
States, 68th Cong., 1st Sess. (1924).
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spawned allegations of many improper activities in the Justice Department. Daugherty resigned
on March 28, 1924.269
In 1926, federal district judge George W. English was impeached for a variety of alleged offenses,
including (1) directing a U.S. marshal to gather a number of state and local officials into court in
an imaginary case in which Judge English proceeded to denounce them; (2) threatening two
members of the press with imprisonment without sufficient cause; and (3) showing favoritism to
certain litigants before his court.270 Judge English resigned before a trial in the Senate occurred;
and the Senate dismissed the charges without conducting a trial in his absence.271
Federal district judge Harold Louderback was impeached in 1933 for showing favoritism in the
appointment of bankruptcy receivers, which were coveted positions following the stock market
crash of 1929 and the ensuing Depression.272 The House authorized a subcommittee to
investigate, which held hearings and recommended to the Judiciary Committee that Judge
Louderback be impeached.273 The Judiciary Committee actually voted against recommending
impeachment, urging censure of Judge Louderback instead, but permitted the minority report that
favored impeachment to be reported to the House together with the majority report.274 The full
House voted to impeach anyway,275 but the Senate failed to convict him.276
Shortly thereafter, the House impeached federal district judge Halsted L. Ritter for showing
favoritism in and profiting from appointing receivers in bankruptcy proceedings; practicing law
while a judge; and failing to fully report his income on his tax returns.277 The Senate acquitted
Judge Ritter on each individual count alleging specific behavior, but convicted him on the final
count which referenced the previous articles, and charged him with bringing his court into
disrepute and undermining the public’s confidence in the judiciary.278
Congress’s impeachment of Judge Ritter was the first to be challenged in court.279 Judge Ritter
sued in the Federal Court of Claims seeking back pay, arguing that the charges brought against
him were not impeachable under the Constitution and that the Senate improperly voted to acquit
on six specific articles but to convict on a single omnibus article.280 In rejecting Judge Ritter’s
suit, the court held that the Senate has exclusive jurisdiction over impeachments and courts lack
authority to review the Senate’s verdict.281

269 See DINER, supra note 261, at 471.
270 67 CONG. REC. 6705–55 (1926); 6 CANNON, supra note 5, §§ 544–45, pp. 778–81.
271 TASSEL & FINKELMAN, supra note 139, at 144–46.
272 76 CONG. REC. 4913–26 (1933); 6 CANNON, supra note 5, §§ 513–20, pp. 709–30.
273 BUSHNELL, supra note 140, at 245.
274 Id. at 246.
275 Id. at 247.
276 77 CONG. REC. 4064–88 (1933).
277 80 CONG. REC. 3066–92 (1936); TASSEL & FINKELMAN, supra note 139, at 157.
278 80 CONG. REC. 5602–08 (1936); See PROCEEDINGS OF THE U.S. SENATE IN THE TRIAL OF IMPEACHMENT OF HALSTED
L. RITTER, UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA, 74TH CONG., 2D SESS., S. DOC.
NO. 74-200, at 637–38 (1936) [hereinafter RITTER IMPEACHMENT]; TASSEL & FINKELMAN, supra note 139, at 158–59.
279 Ritter v. United States, 84 Ct. Cl. 293, 296 (1936).
280 BUSHNELL, supra note 140, at 286–87.
281 Ritter, 84 Ct. Cl. at 298.
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Effort to Impeach President Richard Nixon
The impeachment investigation and ensuing resignation of President Richard Nixon stands out as
a profoundly important experience informing the standard for the impeachment of Presidents.282
Although President Nixon was never impeached by the House or subjected to a trial in the Senate,
his conduct exemplifies for many authorities, scholars, and members of the public the
quintessential case of impeachable behavior in a President.
Less than two years after a landslide reelection as President, Richard Nixon resigned following
the House Judiciary Committee’s adoption of three articles of impeachment against him.283 The
circumstances surrounding the impeachment of President Nixon were sparked by the arrest of
five men for breaking into the Democratic National Committee Headquarters at the Watergate
Hotel and Office Building. The arrested men were employed by the committee to Re-Elect the
President (CRP), a campaign organization formed to support President Nixon’s reelection.284
In the early summer of 1973, Attorney General Elliot Richardson appointed Archibald Cox as a
special prosecutor to investigate the connection between the five burglars and CRP. Likewise, the
Senate Select Committee on Presidential Campaign Activities began its own investigation.285
After President Nixon fired various staffers allegedly involved in covering up the incident, he
spoke on national television disclaiming knowledge of the cover-up. But the investigations
uncovered evidence that President Nixon was involved, that he illegally harassed his enemies
through, among other things, the use of tax audits, and that the men arrested for the Watergate
break-in—the “plumbers unit,” because they were used to “plug leaks” considered damaging to
the Nixon Administration—had committed burglaries before.286 Eventually a White House aide
revealed that the President had a tape recording system in his office, raising the possibility that
many of Nixon’s conversations about the Watergate incident were recorded.287
The President refused to hand over such tapes to the special prosecutor or Congress. In his
capacity as special prosecutor, Cox then subpoenaed tapes of conversations in the Oval Office on
Saturday, October 20, 1973. This sparked the sequence of events commonly known as the
Saturday Night Massacre.288 In response to the subpoena, President Nixon ordered Attorney
General Elliot Richardson to fire Special Prosecutor Cox. Richardson refused and resigned.
Nixon ordered Deputy Attorney General William D. Ruckelshaus to fire the special prosecutor,
but Ruckelshaus also refused to do so and resigned. Solicitor General Robert Bork, in his capacity
as Acting Attorney General, then fired the special prosecutor.289 Nixon eventually agreed to
deliver some of the subpoenaed tapes to the judge supervising the grand jury. The Justice
Department appointed Leon Jaworski to replace Cox as special prosecutor.
The House Judiciary Committee began an official investigation of the Watergate issue and
commenced impeachment hearings in April 1974.290 On March 1, 1974, a grand jury indicted
seven individuals connected to the larger Watergate investigation and named the President as an

282 For a more detailed account of the Watergate Scandal, see STANLEY I. KUTLER, THE WARS OF WATERGATE (1990).
283 See Carroll Kilpatrick, Nixon Resigns, WASH. POST, Aug. 9, 1974, at A1.
284 KUTLER, supra note 282, at 187–211.
285 Id. at 323–49; TASSEL & FINKELMAN, supra note 139, at 255–56.
286 TASSEL & FINKELMAN, supra note 139, at 255–56; KUTLER, supra note 282, at 111–16, 351–72.
287 TASSEL & FINKELMAN, supra note 139, at 256–57.
288 JERRY ZEIFMAN, WITHOUT HONOR: CRIMES OF CAMELOT AND THE IMPEACHMENT OF PRESIDENT NIXON 59 (1995).
289 See Carroll Kilpatrick, Nixon Forces Firing of Cox; Richardson, Ruckelshaus Quit, WASH. POST (Oct. 21, 1973), at
A1.
290 TASSEL & FINKELMAN, supra note 139, at 258–59.
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unindicted coconspirator.291 On April 18, a subpoena was issued, upon the motion of the special
prosecutor, by the United States District Court for the District of Columbia requiring the
production of tapes and various items relating to meetings between the President and other
individuals. Following a challenge to the subpoena in district court, the Supreme Court reviewed
the case. On July 24, 1974, the Supreme Court affirmed the district court’s order.292
In late July, following its investigation and hearings, the House Judiciary Committee voted to
adopt three articles of impeachment against President Nixon.293 The first impeachment article
alleged that the President obstructed justice by attempting to impede the investigation into the
Watergate break-in.294 The second charged the President with abuse of power for using federal
agencies to harass his political enemies and authorizing burglaries of private citizens who
opposed the President.295 The third article accused the President of refusing to cooperate with the
Judiciary Committee’s investigation.296
The committee considered but rejected two proposed articles of impeachment. The first rejected
article accused the President of concealing from Congress the bombing operations in Cambodia
during the Vietnam conflict.297 This article was rejected for two primary reasons: some Members
thought (1) the President was performing his constitutional duty as Commander-in-Chief and (2)
Congress was given sufficient notice of these operations.298
The second rejected article concerned receiving compensation in the form of government
expenditures at President Nixon’s private properties in California and Florida—which allegedly
constituted an emolument from the United States in violation of Article II, Section 1, Clause 7 of
the Constitution—and tax evasion.299 Those Members opposed to the portion of the charge
alleging receipt of federal funds argued that most of the President’s expenditures were made
pursuant to a request from the Secret Service; that there was no direct evidence the President
knew at the time that the source of these funds was public, rather than private; and that this
conduct failed to rise to the level of an impeachable offense.300 Some Members opposed to the tax
evasion charge argued that the evidence was insufficient to impeach; others that tax fraud is not
the type of behavior “at which the remedy of impeachment is directed.”301
President Nixon resigned on August 9, 1974, before the full House voted on the articles.302 The
lessons and standards established by the Nixon impeachment investigation and resignation are
disputed. On the one hand, the behavior alleged in the approved articles against President Nixon
is arguably a “paradigmatic” case of impeachment, constituting actions that are almost certainly
impeachable conduct for the President.303

291 United States v. Nixon, 418 U.S. 683, 686–87 (1974).
292 Id. at 713–14.
293 NIXON IMPEACHMENT, supra note 116, at 6–11.
294 Id. at 1–2.
295 Id. at 3–4.
296 Id. at 4.
297 Id. at 217–19.
298 Id. at 219.
299 NIXON, supra note 116, at 220–23.
300 Id. at 221.
301 Id. at 223.
302 Kilpatrick, supra note 283.
303 Michael J. Gerhardt, The Lessons of Impeachment History, 67 GEO. WASH. L. REV. 603, 604 (1999).
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On the other hand, the significance of the House Judiciary Committee’s rejection of certain
impeachment articles is unclear. In particular, whether conduct considered unrelated to the
performance of official duties, such as the rejected article alleging tax evasion, can constitute an
impeachable offense for the President is disputed. During the later impeachment of President Bill
Clinton, for example, the majority and minority reports of the House Judiciary Committee on the
committee’s impeachment recommendation took different views on when conduct that might
traditionally be viewed as private or unrelated to the functions of the presidency constitutes an
impeachable offense.304 The House Judiciary Committee report that recommended articles of
impeachment argued that perjury by the President was an impeachable offense, even if committed
with regard to matters outside his official duties.305 In contrast, the minority views in the report
argued that impeachment was reserved for “conduct that constitutes an egregious abuse or
subversion of the powers of the executive office.”306 The minority noted that the Judiciary
Committee had rejected an article of impeachment against President Nixon alleging that he
committed tax fraud, mainly because that “related to the President’s private conduct, not to an
abuse of his authority as President.”307
Impeachment of President Bill Clinton
The impeachment of President Bill Clinton stemmed from an investigation that originally
centered on financial transactions occurring years before President Clinton took federal office.308
Attorney General Janet Reno appointed Robert Fiske Jr. as a special prosecutor in January 1994
to investigate the dealings of President Clinton and his wife with the “Whitewater” real estate
development during the President’s tenure as attorney general and then governor of Arkansas.309
Following the reauthorization of the Independent Counsel Act in June, the Special Division of the
United States Court of Appeals for the District of Columbia Circuit replaced Fiske in August with
Independent Counsel Kenneth W. Starr, a former Solicitor General in the George H.W. Bush
Administration and federal appellate judge.310
During the Whitewater investigation, Paula Jones, an Arkansas state employee, filed a civil suit
against President Clinton in May 1994 alleging that he sexually harassed her in 1991 while
governor of Arkansas.311 Lawyers for Jones deposed President Clinton at the White House and
asked questions about the President’s relationship with staffers, including an intern named
Monica Lewinsky.312 Independent Counsel Starr received information alleging that Lewinsky had
tried to influence the testimony of a witness in the Jones litigation,313 along with tapes of

304 Compare CLINTON IMPEACHMENT, supra note 92, at 110–18 (majority views), with id. at 204–07 (minority views).
305 See id. at 108.
306 Id. at 205.
307 Id. at 207.
308 See generally KEN GORMLEY, THE DEATH OF AMERICAN VIRTUE: CLINTON VS. STARR 33–114 (2010).
309 TASSEL & FINKELMAN, supra note 139, at 267; see generally Whitewater: Timeline, WASH. POST (1998).
310 See generally GORMLEY, supra note 308, at 143–69. A previous version of the statute under which the independent
counsel was appointed was challenged as unconstitutional in Morrison v. Olson, 487 U.S. 654 (1998). The Supreme
Court upheld the statute. Id. at 685–96.
311 In Clinton v. Jones, the Supreme Court held that the President was not immune from suit for unofficial acts. 520
U.S. 681, 684–85 (1997).
312 TASSEL & FINKELMAN, supra note 139, at 268.
313 Kenneth W. Starr, Communication from Kenneth W. Starr, Independent Counsel, Transmitting a Referral to the
United States House of Representatives Filed in Conformity with the Requirements of Title 28, United States Code,
Section 595(C) (“Starr Report”), H.R. Doc. No. 105–310, Vol. I at 3 (1998).
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recordings between Monica Lewinsky and former White House employee Linda Tripp.314 Tripp
had recorded conversations between herself and Lewinsky about Lewinsky’s relationship with the
President and hope of obtaining a job outside the White House. Starr presented this information to
Attorney General Reno. Reno petitioned the Special Division of the United States Court of
Appeals for the District of Columbia Circuit to expand the independent counsel’s jurisdiction, and
the Special Division issued an order on January 16, 1998, permitting the expansion of Starr’s
investigation into President Clinton’s response to the Paula Jones case.315 Over the course of the
spring and summer a grand jury investigated whether President Clinton committed perjury in his
response to the Jones suit and whether he obstructed justice by encouraging others to lie about his
relationship with Lewinsky.316 President Clinton appeared by video before the grand jury and
testified about the Lewinsky relationship.317
Independent Counsel Starr referred his report to the House of Representatives on September 9,
1998, noting that under the independent counsel statute, his office was required to do so because
President Clinton engaged in behavior that might constitute grounds for impeachment.318 The
House then voted to open an impeachment investigation into President Clinton’s behavior,
released the Starr Report publicly, and the House Judiciary Committee voted to release the tape of
the President’s grand jury testimony.319
Although the House Judiciary Committee had already conducted several hearings on the
possibility of impeachment,320 the committee did not engage in an independent fact-finding
investigation or call any live witnesses to testify about the President’s conduct.321 Instead, the
Judiciary Committee largely relied on the Starr Report to inform the committee’s own report
recommending impeachment, released December 16, 1998.322 The committee report
recommended impeachment of President Clinton on four counts.323 The first article alleged that
President Clinton perjured himself when testifying to a criminal grand jury about his response to
the Jones lawsuit and his relationship with Lewinsky.324 The second alleged that the President
committed perjury during a deposition in the civil suit brought against him by Paula Jones.325 The
third alleged that President Clinton obstructed justice in the suit brought against him by Jones and
in the investigation by Independent Counsel Starr.326 The fourth alleged that the President abused

314 See GORMLEY, supra note 308, at 304–06.
315 Id.
316 TASSEL & FINKELMAN, supra note 139, at 269.
317 CLINTON IMPEACHMENT, supra note 92, at 28; The Starr Report: Grounds for Impeachment, No. II, WASH. POST
(1998), http://www.washingtonpost.com/wp-srv/politics/special/clinton/icreport/7groundsii.htm (last visited Oct. 25,
2019).
318 The Starr Report: Introduction, WASH. POST (1998), http://www.washingtonpost.com/wp-
srv/politics/special/clinton/icreport/5intro.htm (last visited Oct. 25, 2019); see 28 U.S.C. § 595(c).
319 TASSEL & FINKELMAN, supra note 139, at 271.
320 See Background and History of Impeachment, Hearing Before the Subcomm. on the Constitution of the H. Comm.
on the Judiciary, 105th Cong. (1998); Impeachment Inquiry: William Jefferson Clinton, President of the United States,
Hearing Before the H. Comm. on the Judiciary, 105th Cong. (1998).
321 GERHARDT, supra note 15, at 176–77.
322 See CLINTON IMPEACHMENT, supra note 92, at 200–02 (minority views).
323 Id. at 128.
324 Id. at 2.
325 Id. at 2–3.
326 Id. at 3–4.
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his office by refusing to respond to certain requests for admission from Congress and making
untruthful responses to Congress during the investigation into his behavior.327
On December 19, 1998, in a lame-duck session, the House voted to approve the first and third
articles.328 After trial in the Senate, the President was acquitted on February 12, 1999.329
Statements of the Senators entered into the record on the impeachment reflect disagreement about
what constitutes an impeachable offense for the President and whether Clinton’s behavior rose to
this level.330 For instance, Republican Senator Richard G. Lugar voted to convict on both articles,
noting in his statement the gravity of the “presidential misconduct at issue” and arguing that the
case was “not about adultery.”331 Instead, it centered on the obstruction of justice that occurred
when the President “lied to a federal grand jury and worked to induce others to give false
testimony.”332 For Senator Lugar, the President ultimately “betrayed [the] trust” of the nation
through his actions and should be removed from office.333 In contrast, Republican Senator
Olympia Snowe voted to acquit on both articles. In her statement, she admonished the President’s
“lowly conduct,” but concluded there was “insufficient evidence of the requisite untruth and the
requisite intent” to establish perjury with regard to the concealment of his relationship with a
subordinate; and the perjury charges regarding his relationship with a subordinate concerned
statements that were largely “ruled irrelevant and inadmissible in the underlying civil case” which
“undermine[d] [their] materiality.”334 She also stated that she thought one of the allegations in the
second impeachment article had been proven—the President’s attempt to influence the testimony
of his personal assistant—but that the proper remedy for this was a criminal prosecution.335 A
number of Senators indicated that they did not consider the President’s behavior to constitute an
impeachable offense because the President’s conduct was not of a distinctly public nature.336 For
instance, Democratic Senator Byron L. Dorgan voted to acquit on both articles.337 He described
Clinton’s behavior as “reprehensible,” but concluded that it did not constitute “a grave danger to
the nation.”338
The significance of the Clinton impeachment experience to informing the understanding of what
constitutes an impeachable offense is thus open to debate. One might point to the impeachment
articles recommended by the House Judiciary Committee, but not adopted by the full House, as
concerning conduct insufficient to establish an impeachable offense. Specifically, the House
declined to impeach President Clinton for his alleged perjury in a civil suit against him as well as
for alleged untruthful statements made in response to congressional requests.339 Likewise, some
scholars have pointed to the acquittal in the Senate of both impeachment articles brought by the

327 Id. at 4–5.
328 144 CONG. REC. 28,035–113 (1998).
329 145 CONG. REC. 2375–78 (1999); Alison Mitchell, Clinton is Acquitted Decisively by Senate on Both Charges, N.Y.
TIMES (Feb. 13, 1999) at A1.
330 See 145 CONG. REC. S1471–1637 (daily ed. Feb. 12, 1999); GERHARDT, supra note 15, at 175.
331 PROCEEDINGS OF THE UNITED STATES SENATE IN THE IMPEACHMENT TRIAL OF PRESIDENT WILLIAM JEFFERSON
CLINTON, VOLUME IV: STATEMENTS OF SENATORS REGARDING THE IMPEACHMENT TRIAL, 106TH CONG., 1ST SESS., S.
DOC. NO. 106-4, at 2571–72 (1999) [hereinafter CLINTON PROCEEDINGS].
332 Id.
333 Id. at 2573.
334 Id. at 3001–02.
335 Id. at 3004.
336 See 145 CONG. REC. S1471–1637 (daily ed. Feb. 12, 1999); GERHARDT, supra note 15, at 175.
337 CLINTON PROCEEDINGS, supra note 331, at 2942.
338 Id.
339 144 CONG. REC. 28, 110–12 (1998).
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House as evidence that the Clinton impeachment articles lacked merit or were adopted on purely
partisan grounds.340 The statements of some Senators mentioned above, reasoning that Clinton’s
conduct did not qualify as an impeachable offense, may support arguments that impeachment is
not an appropriate tool to address at least some sphere of conduct by a President not directly tied
to his official duties.341 Even so, the failure to convict President Clinton might instead simply
reflect the failure of the House Managers to prove their case,342 or simply bare political
calculation by some Senators.343 Ultimately, the lessons of the Clinton impeachment experience
will be revealed in the future practice of Congress when assessing whether similar conduct is
impeachable if committed by future Presidents.
Contemporary Judicial Impeachments
Congress has impeached federal judges with comparatively greater frequency in recent decades,
and some of these impeachments appear to augur important consequences for the practice in the
future. In particular, within three years in the 1980s the House voted to impeach three federal
judges, each occurring after a criminal prosecution of the judge. One impeached federal judge
was not barred from future office and later was elected to serve in the House of Representatives,
the body that had earlier impeached him.344 Another judge challenged the adequacy of his
impeachment trial in a case that ultimately reached the Supreme Court, which ruled that the case
was nonjusticiable.345
The House of Representatives impeached federal district judge Harry E. Claiborne in 1986,
following his criminal conviction and imprisonment for providing false statements on his tax
returns.346 Despite his incarceration, Judge Claiborne did not resign his seat and continued to
collect his judicial salary.347 The House unanimously voted in favor of four articles of
impeachment against him.348 The first two articles against Judge Claiborne simply laid out the
underlying behavior that had led to his criminal prosecution.349 The third article “rest[ed] entirely
on the conviction itself” and stood for the principle that “by conviction alone he is guilty of . . .
‘high crimes’ in office.”350 The fourth alleged that Judge Claiborne’s actions brought the

340 Miller, supra note 115 at 728 (“President Clinton's acquittal, a constitutional law decision by the Senate—the final
arbiter of the impeachment law—will reaffirm Congress’s prior “holdings” that impeachment carries a “substantiality”
requirement. Impeachable offenses are offenses seriously incompatible with the institutions of government or those that
substantially impair a president’s ability to perform his constitutional duties. President Clinton’s conduct falls short of
this extraordinarily high threshold.”). But see Charles J. Cooper, A Perjurer in the White House?: The Constitutional
Case for Perjury and Obstruction of Justice As High Crimes and Misdemeanors, 22 HARV. J.L. & PUB. POL'Y 619, 621
(1999) (“[T]he crimes alleged against the President . . . plainly do involve the derelict violation of executive duties.
Those crimes are plainly impeachable offenses.”).
341 Michael J. Gerhardt, The Perils of Presidential Impeachment, 67 U. CHI. L. REV. 293, 299–301 (2000).
342 See 145 CONG. REC. S1577 (daily ed. Feb. 12, 1999).
343 GERHARDT, supra note 15, at 175–76.
344 See H.R. Res. 499, 100th Cong., 2d Sess. (1988); HASTINGS IMPEACHMENT, supra note 147, at 8, 66; see also The
Impeachment Trial of Alcee L. Hastings (1989) U.S. District Judge, Florida, U.S. SENATE,
https://www.senate.gov/artandhistory/history/common/briefing/Impeachment_Hastings.htm (last visited Oct. 25, 2019).
345 Nixon v. United States, 506 U.S. 224, 237–38 (1993).
346 United States v. Claiborne, 727 F.2d 842 (9th Cir. 1984) (per curiam).
347 TASSEL & FINKELMAN, supra note 139, at 168.
348 132 CONG. REC. H4710–22 (daily ed. July 22, 1986).
349 H. COMM. ON THE JUDICIARY, IMPEACHMENT OF JUDGE HARRY E. CLAIBORNE, REPORT TO ACCOMPANY H. RES. 461,
99TH CONG., 2D SESS., H.R. REP. NO. 99-688, at 1–2 (1986) [hereinafter CLAIBORNE IMPEACHMENT].
350 Id. at 22.
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“judiciary into disrepute, thereby undermining public confidence in the integrity and impartiality
of the administration of justice” which amounted to a “misdemeanor.”351
The Senate impeachment trial of Judge Claiborne was the first in which that body used a
committee to take evidence. Rather than conducting a full trial with the entire Senate, the
committee took testimony, received evidence, and voted on pretrial motions regarding evidence
and discovery.352 The committee then reported a transcript of the proceedings to the full Senate,
without recommending whether impeachment was warranted.353 The Senate voted to convict
Judge Claiborne on the first, second, and fourth articles.354
In 1988, the House impeached a federal district judge who had been indicted for a criminal
offense but was acquitted. Judge Alcee L. Hastings was acquitted in a criminal trial where he was
accused of conspiracy and obstruction of justice for soliciting a bribe in return for reducing the
sentences of two felons.355 After his acquittal, a judicial committee investigated the case and
concluded that Judge Hastings’s behavior might merit impeachment. The Judicial Conference (a
national entity composed of federal judges that reviews investigations of judges and may refer
recommendations to Congress) eventually referred the matter to the House of Representatives,
noting that impeachment might be warranted.356 The House of Representatives approved
seventeen impeachment articles against Judge Hastings, including for perjury, bribery, and
conspiracy.357
Judge Hastings objected to the impeachment proceedings as “double jeopardy” because he had
already been acquitted in a previous criminal proceeding.358 The Senate, however, rejected his
motion to dismiss the articles against him.359 The Senate again used a trial committee to receive
evidence. That body voted to convict and remove Judge Hastings on eight articles, but did not
vote to disqualify him from holding future office.360 Judge Hastings was later elected to the House
of Representatives.361
Before the trial of Judge Hastings even began in the Senate, the House impeached Judge Walter
L. Nixon. Judge Nixon was convicted in a criminal trial of perjury to a grand jury and
imprisoned.362 Following an investigation by the House Judiciary Committee’s Subcommittee on
Civil and Constitutional Rights, the Judiciary Committee reported a resolution to the full House
recommending impeachment on three articles.363 The full House approved three articles of

351 Id. at 23.
352 STAFF FROM THE S. IMPEACHMENT TRIAL COMM., ON THE IMPEACHMENT OF HARRY E. CLAIBORNE, 99TH CONG., 2D
SESS., S. REP. NO. 99-511, at 1–4 (1986).
353 Id. at 1.
354 132 CONG. REC. 29, 870–72 (1986).
355 HASTINGS IMPEACHMENT, supra note 147, at 8.
356 Id. at 8. The Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 authorizes the Judicial
Conference to forward a certification to the House that impeachment of a federal judge may be warranted. 28 U.S.C. §
355.
357 H.R. Res. 499, 100th Cong., 2d Sess. (1988); HASTINGS IMPEACHMENT, supra note 147, at 1–5, 8.
358 IMPEACHMENT OF JUDGE ALCEE L. HASTINGS, MOTIONS TO DISMISS, supra note 148, at 48–65.
359 The Impeachment Trial of Alcee L. Hastings (1989) U.S. District Judge, Florida, U.S. SENATE,
https://www.senate.gov/artandhistory/history/common/briefing/Impeachment_Hastings.htm (last visited Oct. 25, 2019).
360 135 CONG. REC. S13,783–87 (daily ed. Oct. 20, 1989).
361 TASSEL & FINKELMAN, supra note 139, at 173.
362 H. COMM. ON THE JUDICIARY, IMPEACHMENT OF WALTER L. NIXON, JR., REPORT TO ACCOMPANY H. RES. 87, 101ST
CONG. 1ST SESS., H.R. REP. NO. 101-36, at 12–13 (1989) [hereinafter NIXON JR. IMPEACHMENT].
363 Id. at 14–16.
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impeachment, the first two involving lying to a grand jury and the last for undermining the
integrity of and bringing disrepute on the federal judicial system.364 The Senate convicted Judge
Nixon on the first two articles but acquitted him on the third.365
Judge Nixon challenged the Senate’s use of a committee to receive evidence and conduct
hearings. He sued in federal court arguing that the use of a committee, rather than the full Senate,
to take evidence violated the Constitution's provision that the Senate “try” all impeachments.366
The Supreme Court ultimately rejected his challenge in Nixon v. United States, ruling that the
issue was a nonjusticiable political question because the Constitution grants the power to try
impeachments “in the Senate and nowhere else”; and the word “try” “lacks sufficient precision to
afford any judicially manageable standard of review of the Senate’s actions.”367 As a result of this
decision, impeachment proceedings appear largely immune from judicial review.368
Two judges have been impeached in the twenty-first century. As with the three impeachments of
judges in the 1980s, the first followed a criminal indictment. District Judge Samuel B. Kent
pleaded guilty to obstruction of justice for lying to a judicial investigation into alleged sexual
misconduct and was sentenced to thirty-three months in prison.369 The House impeached Judge
Kent for sexually assaulting two court employees, obstructing the judicial investigation of his
behavior, and making false and misleading statements to agents of the Federal Bureau of
Investigation about the activity.370 Judge Kent resigned his office before a Senate trial.371 The
Senate declined to conduct a trial following his resignation.
Although the four previous impeachments of federal judges followed criminal proceedings, the
most recent impeachment did not.372 In 2010, Judge G. Thomas Porteous Jr. was impeached for
participating in a corrupt financial relationship with attorneys in a case before him, and engaging
in a corrupt relationship with bail bondsmen whereby he received things of value in return for
helping the bondsman develop corrupt relationships with state court judges.373 Judge Porteous
was the first individual impeached by the House374 and convicted by the Senate based in part on
conduct occurring before he began his tenure in federal office. The first and second articles of
impeachment each alleged misconduct by Judge Porteous during both his state and federal

364 See 135 CONG. REC. H1802–11 (daily ed. May 10, 1989).
365 135 CONG. REC. S14,633–39 (daily ed. Nov. 3, 1989).
366 Nixon v. United States, 506 U.S. 224, 226 (1993).
367 Id. at 229–30.
368 The U.S. District Court for the District of Columbia initially threw out Judge Hastings’ Senate impeachment
conviction, because the Senate had tried his impeachment before a committee rather than the full Senate. Hastings v.
United States, 802 F. Supp. 490, 505 (D.D.C. 1992), vacated, 988 F.2d 1280 (D.C. Cir. 1993). The decision was
vacated on appeal and remanded for reconsideration in light of Nixon v. United States. Hastings v. United States, 988
F.2d 1280 (D.C. Cir. 1993). The district court then dismissed the suit because it presented a nonjusticiable political
question. Hastings v. United States, 837 F. Supp. 3, 5–6 (D.D.C. 1993).
369 H. COMM. ON THE JUDICIARY, IMPEACHMENT OF JUDGE SAMUEL B. KENT, REPORT TO ACCOMPANY H. RES. 520, 11TH
CONG., 1ST SESS., H.R. REP. No. 111-159, at 6–13 (2009) [hereinafter KENT IMPEACHMENT].
370 155 CONG. REC. H7053–67 (daily ed. June 19, 2009); KENT IMPEACHMENT, supra note 369, at 2–3.
371 HOUSE PRACTICE, supra note 6, at ch. 27 §§ 3–4.
372 The FBI investigated judicial corruption in Louisiana’s 24th Judicial District, the court on which Judge Porteous
served before appointed to the District Court for the Eastern District of Louisiana. The Department of Justice declined
to seek criminal charges but did submit a complaint of judicial misconduct to the Fifth Circuit Court of Appeals.
PORTEOUS IMPEACHMENT, supra note 7, at 5.
373 Id. at 1–2.
374 See 156 CONG. REC. 3155–57 (2010).
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judgeships.375 The fourth alleged that Judge Porteous made false statements to the Senate and FBI
in connection with his nomination and confirmation to the U.S. District Court for the Eastern
District of Louisiana.376
Judge Porteous’s filings in answer to the articles of impeachment argued that conduct occurring
before he was appointed to the federal bench cannot constitute impeachable behavior.377 The
House Managers’ replication, or reply to this argument, argued that Porteous’s contention had no
basis in the Constitution.378 On December 8, 2010, he was convicted on all four articles, removed
from office, and disqualified from holding future federal offices.379 The first article, which
included conduct occurring before he was a federal judge, was affirmed 96–0.380 The second
article, approved 90–6, alleged that he lied to the Senate in his confirmation hearing to be a
federal judge.381 A number of Senators explicitly adopted the reasoning supplied by expert
witness testimony before the House that the crucial issue over the appropriateness of
impeachment was not the timing of the misconduct, but “whether Judge Porteous committed such
misconduct and whether such misconduct demonstrates the lack of integrity and judgment that
are required in order for him to continue to function” in office.382
Senator Claire McCaskill explained in her statement entered in the Congressional Record that
Judge Porteous’s argument for an “absolute, categorical rule that would preclude impeachment
and removal for any pre-federal conduct” should be rejected.383 “That should not be the rule,” she
noted, “any more than allowing impeachment for any pre-federal conduct that is entirely
unrelated to the federal office.”384 Senator Patrick Leahy agreed, noting that he “reject[ed] any
notion of impeachment immunity [for pre-federal behavior] if misconduct was hidden, or
otherwise went undiscovered during the confirmation process, and it is relevant to a judge’s
ability to serve as an impartial arbiter.”385

375 PORTEOUS IMPEACHMENT, supra note 7, at 1–2.
376 Id. at 2.
377 156 CONG. REC. S2183–84 (daily ed. Apr. 12, 2010). See also Judge G. Thomas Porteous Jr.’s Post-Trial Brief (Oct.
29, 2010), in PROCEEDINGS OF THE UNITED STATES SENATE IN THE IMPEACHMENT TRIAL OF G. THOMAS PORTEOUS, JR., A
JUDGE OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA, 111TH CONG., 2D SESS., S.
DOC. NO. 111-20, at 61–76 (2010) [hereinafter PORTEOUS PROCEEDINGS].
378 156 CONG. REC. S2358 (daily ed. Apr. 15, 2010). See also Post-Trial Memorandum of the House of Representatives
(Oct. 29, 2010), in PORTEOUS PROCEEDINGS, supra note 377, at 304–15.
379 156 CONG. REC. 19, 134–36 (2010).
380 Id. at 8609.
381 Id. at 8610.
382 To Consider Possible Impeachment of United States District Judge G. Thomas Porteous, Jr. (Part IV), Hearing
Before the Task Force on Judicial Impeachment of the H. Comm. on the Judiciary, 111th Cong. 1st Sess., H. Hrg. 111-
46, at 30 (Dec. 15, 2009) (statement of Michael J. Gerhardt, Professor of Law, University of North Carolina, Chapel
Hill School of Law); see, e.g., 156 CONG. REC. S10,285 (daily ed. Dec. 15, 2010) (statement of Senator Tom Udall); id.
S10,284 (statement of Senator Patrick Leahy).
383 156 CONG. REC. S10,282 (daily ed. Dec. 15, 2010).
384 Id.
385 Id. S10,284; see also id. S10,286 (statement of Senator Jeanne Shaheen) (“I was totally unpersuaded by the defense
team's argument that Judge Porteous’s ‘pre-Federal’ conduct should be outside the scope of our deliberation—I do not
believe the act of being confirmed to a Federal judgeship by the Senate erases or excuses an individual’s conduct up to
the point of confirmation.”); id. S10,405 (statement of Senator Jeff Sessions) (“The Constitution does not require that
all conduct be committed post Federal appointment nor does it stipulate at all when the conduct must occur.”).
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Impeachments of President Donald Trump
The House of Representatives impeached President Donald Trump twice during his term in
office. In both cases, the Senate acquitted him on all counts.
The first impeachment stemmed from a call President Trump had with President Volodymyr
Zelenskyy of Ukraine in which President Trump asked the Ukrainian president to announce two
investigations: one involving his potential opponent in the upcoming 2020 presidential election
and a second into unsubstantiated allegations that entities within Ukraine had interfered in the
2016 presidential election.386 At the time of the call, the Office of Management and Budget had
frozen $400 million in military aid to Ukraine at the direction of the President.387 The contents of
the call initially came to light through an intelligence community whistleblower report, but a
summary of the call was later made public by President Trump.388
The initial fact-finding portion of the investigation was primarily handled by the House
Intelligence Committee, in cooperation with the Committee on Oversight and Reform and the
Committee on Foreign Affairs.389 The early stages of this phase of the investigation saw some
controversy over whether the House must explicitly authorize the initiation of an impeachment
investigation. Although the Speaker of the House had announced that the committee
investigations constituted an official impeachment inquiry, the White House counsel objected to
the investigations on the ground that they lacked the necessary authorization for a valid
impeachment proceeding and violated the Due Process Clause.390 As a result, the President
instructed members of his Administration not to cooperate with the House’s inquiry.391
The House subsequently adopted a resolution authorizing the House committees to “continue
their ongoing investigations as part of the existing House of Representatives inquiry into whether
sufficient grounds exist . . . to impeach Donald John Trump.”392 The White House and other
executive branch offices generally refused to comply with the House investigators’ requests for
information, including subpoenas. Some executive branch officials, however, made the individual
determination to cooperate with the impeachment inquiry and, as a result, the Intelligence
Committee was able to hold a number of investigative hearings and issue a report outlining their
findings. The record established in the fact-finding phase was then provided to the Judiciary
Committee.
The next phase of the impeachment investigation was conducted by the Judiciary Committee.
This Committee focused on whether the President’s conduct, as uncovered in the fact-finding
phase of the inquiry, constituted an impeachable offense.393 Following a series of hearings, the
Committee recommended two articles of impeachment against the President, both of which were

386 H.R. Rep. No. 116-346, at 81-83 (2019).
387 Id. at 82.
388 Id. at 126.
389 Staff of H. Perm. Select Comm. on Intelligence, H. Comm. on Oversight and Reform, & H. Comm. on Foreign
Affairs, The Trump-Ukraine Impeachment Inquiry Report: Report for the H. Perm. Select Comm. on Intelligence
Pursuant to H. Res. 660 in Consultation with the H. Comm. on Oversight and Reform and the H. Comm. on Foreign
Affairs, 116th Cong. (Comm. Print 2019).
390 Press Release, Nancy Pelosi, Speaker of the House, Pelosi Remarks Announcing Impeachment Inquiry (Sept. 24,
2019), https://www.speaker.gov/newsroom/92419-0.
391 See Letter from Pat Cipollone, White House Counsel, to Nancy Pelosi, Speaker of the House of Representatives, et
al. (Oct. 8, 2019), https://s3.documentcloud.org/documents/6459967/PAC-Letter-10-08-2019.pdf.
392 H.R. Res. 660, 116th Cong. (2019).
393 H.R. Rep. No. 116-346; Report by the Majority Staff of the H. Comm. on the Judiciary, Constitutional Grounds for
Presidential Impeachment, 116th Cong. (Comm. Print 2019).
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ultimately approved by the House. The first charged the President with abuse of power, alleging
that he had used the powers of his office to solicit Ukraine’s interference in the 2020 election and
had conditioned official acts, such as the release of military aid to Ukraine and a White House
visit, on President Zelenskyy agreeing to announce the previously referenced
investigations.394 President Trump, the article alleged, engaged in this scheme or course of
conduct for corrupt purposes in pursuit of personal political benefit.395 The second article charged
the President with obstruction of the House impeachment investigation by “direct[ing]
the unprecedented, categorical” defiance of subpoenas issued by the House of
Representatives.396 This abuse of office, according to the article, was “subversive of constitutional
government” and “nullif[ied] a vital constitutional safeguard vested solely in the House of
Representatives.”397
The impeachment articles were adopted by the House on December 18, 2019, although managers
were not appointed and the articles not delivered to the Senate until January 15, 2020.398
One conflict that arose during the trial involved the proper relationship between impeachment and
criminal law. Trial briefs and debate made clear that the House managers and President Trump’s
attorneys reached very different conclusions on the question of whether high crimes and
misdemeanors require evidence of a criminal act or other legal violation.399 The House, consistent
with past impeachment practice, asserted that for purposes of Article II, high Crimes and
Misdemeanors need not be indictable criminal offenses.400 In response, however, the President’s
attorneys asserted that an impeachable offense must be a violation of established law, and that the
articles “fail[ed] to allege any crime or violation of law whatsoever, let alone ‘high Crimes and
Misdemeanors,’ as required by the Constitution.”401 The acquittal provided no clear resolution to
these conflicting positions, but the debate over a link between illegal acts and impeachable acts
appears to have had some impact on individual Senators. A number of Senators pointed to the
failure to allege an explicit criminal act as a primary reason for acquittal.402

394 H.R. Res. 755, 116th Cong. (2019).
395 Id.
396 Id.
397 Id.
398 H.R. Res. 798, 116th Cong. (2020).
399 U.S. CONST. art. II, § 4.
400 PROCEEDINGS OF THE UNITED STATES SENATE IN THE IMPEACHMENT TRIAL OF PRESIDENT DONALD JOHN TRUMP, VOL.
I: PRELIMINARY PROCEEDINGS, S. Doc. No. 116-18, 116th Cong. 416 (2020).
401 Id. at 471.
402 See, e.g., PROCEEDINGS OF THE UNITED STATES SENATE IN THE IMPEACHMENT TRIAL OF PRESIDENT DONALD JOHN
TRUMP, VOL. IV: STATEMENTS OF SENATORS, S. Doc. No. 116-18, 116th Cong. 1914 (2020) (statement of Senator
James M. Inhofe) (“Each of the past impeachment cases in the House of Representatives accused Presidents Johnson,
Nixon, and Clinton of committing a crime. This President didn’t commit a crime.”); id. at 1984 (statement of Senator
Ted Cruz) (“Indeed, in the Articles of Impeachment they sent over here, they don’t allege any crime whatsoever. They
don’t even allege a single Federal law that the President violated.”); id. at 1990 (statement of Senator David Perdue)
(“President Trump is the first President ever to face impeachment who was never accused of any crime in these
proceedings, whatsoever. These two Articles of Impeachment simply do not qualify as reasons to impeach any
President.”); id. at 2034 (statement of Senator John Cornyn) (“But they failed to bring forward compelling and
unassailable evidence of any crime—again, the Constitution talks about treason, bribery, or other high crimes and
misdemeanors; clearly, a criminal standard . . . .”). Other Senators identified the non-existence of a crime as an
important factor in their vote but made clear their belief that a crime is not constitutionally required. See, e.g., id. at
1937 (statement of Senator Mitch McConnell) (“Now, I do not subscribe to the legal theory that impeachment requires
a violation of a criminal statute, but there are powerful reasons why, for 230 years, every Presidential impeachment did
in fact allege a criminal violation.”); id. at 2016 (statement of Senator Rob Portman) (“In this case, no crime is alleged.
(continued...)
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During the trial, the House managers asked that the Senate authorize subpoenas for relevant
executive branch documents and for testimony from various White House officials, including
former National Security Advisor John Bolton.403 With only forty-nine Senators voting in favor,
the Senate chose not to approve the request, and the record was limited to the evidence provided
by the House.404 Ultimately, the Senate acquitted President Trump on both counts. Article I failed
by a vote of 48–52, while Article II failed by a vote of 47–53.405
The second impeachment of President Trump occurred a year later, in the waning days of his
presidency and following the events of January 6, 2021, at the U.S. Capitol. On that day,
supporters of President Trump attempted to disrupt the congressional certification of Joe Biden as
the winner of the 2020 presidential election. The House moved quickly following those events.
Foregoing an investigation, the House Judiciary Committee staff compiled publicly available
evidence relating to the President’s actions on January 6 and within one week, the House had
approved a single article of impeachment charging the President with incitement to
insurrection.406 The article alleged that in the months running up to January 6, the President had
consistently “issued false statements asserting that the presidential election results were the
product of widespread fraud and should not be accepted by the American people.”407 He then
repeated those claims when addressing a crowd on January 6 and “willfully made statements that,
in context, encouraged—and foreseeably resulted in—lawless action at the Capitol . . . .”408
Although the House ultimately impeached President Trump prior to the expiration of his term, the
Senate did not commence a trial until after President Trump had left office.409 The Senate trial
saw the chamber make two threshold determinations regarding trials of former Presidents. First,
although the Constitution clearly requires the Chief Justice to preside over presidential
impeachment trials, the Senate implicitly determined that that requirement does not extend to the
trial of a former President. At the opening of the trial, Senator Patrick Leahy, President pro
tempore of the U.S. Senate, was sworn in as presiding officer without objection.410
The Senate also made the threshold determination of whether it had the constitutional authority to
try a former President. After briefing and debate on the question of whether the Senate had
jurisdiction over a former President for acts that occurred during his tenure in office, the Senate
explicitly determined by a vote of 56–44 that it did.411 Thus a majority of Senators, as they have

Let me repeat. In the two Articles of Impeachment that came over to us from the House, there is no criminal law
violation alleged. Although I don’t think that that is always necessary—there could be circumstances where a crime
isn’t necessary in an impeachment . . . .”).
403 PROCEEDINGS OF THE UNITED STATES SENATE IN THE IMPEACHMENT TRIAL OF PRESIDENT DONALD JOHN TRUMP, VOL.
II: FLOOR AND TRIAL PROCEEDINGS, S. Doc. No. 116-18, 116th Cong. 1498–99 (2020).
404 Id. at 1499.
405 166 Cong. Rec. S937–38 (daily ed. Feb. 5, 2020).
406 Staff of H. Comm. on the Judiciary, Materials in Support of H. Res. 24 Impeaching Donald John Trump, President
of the United States, for High Crimes and Misdemeanors, 116th Cong. (Comm. Print 2021); H.R. Res. 24, 117th Cong.
(2021).
407 H.R. Res. 24, 117th Cong. (2021).
408 H.R. Res. 24, 117th Cong. (2021).
409 See PROCEEDINGS OF THE UNITED STATES SENATE IN THE IMPEACHMENT TRIAL OF DONALD JOHN TRUMP, VOL. I:
PRELIMINARY AND FLOOR TRIAL PROCEEDINGS, S. Doc. No. 117-3, 117th Cong. 23 (2021).
410 167 Cong. Rec. S142 (daily ed. Jan. 26, 2021) (swearing in Patrick Leahy (D-VT), President pro tempore of the
United States Senate, as presiding officer).
411 167 Cong. Rec. S609 (daily ed. Feb. 9, 2021) (determining that “Donald John Trump is subject to the jurisdiction of
a Court of Impeachment for acts committed while President of the United States, notwithstanding the expiration of his
term in that office”).
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on previous occasions, determined that former officials may be tried by the Senate and, though
not removable, remain subject to disqualification from holding future office if convicted.412
Regarding whether the President committed an impeachable offense, much of the debate during
the trial centered on the applicability of the First Amendment to President Trump’s statements and
actions.413 Although a majority of Senators voted to convict, former President Trump was
ultimately acquitted by a vote of 57–43.414
Recurring Questions About Impeachment
Who Counts as an Impeachable Officer?
The Constitution explicitly makes “[t]he President, Vice President and all civil Officers of the
United States” subject to impeachment and removal.415 Which officials are considered “civil
Officers of the United States” for purposes of impeachment is a significant constitutional question
that remains partly unresolved. Based on both the constitutional text and historical precedent,
federal judges416 and Cabinet-level officials417 are “civil Officers” subject to impeachment, while
military officers,418 state and local officials,419 purely private individuals,420 and Members of
Congress421 likely are not.
A question that neither the Constitution nor historical practice has answered is whether Congress
may impeach and remove lower-level, non-Cabinet executive branch officials. The Constitution
does not define “civil Officers of the United States.” Nor do the debates at the Constitutional

412 See infra “Impeachment After an Individual Leaves Office.”
413 PROCEEDINGS OF THE UNITED STATES SENATE IN THE IMPEACHMENT TRIAL OF DONALD JOHN TRUMP, Part II, S. Doc.
No. 117-2, 117th Cong. 146–75 (2021); PROCEEDINGS OF THE UNITED STATES SENATE IN THE IMPEACHMENT TRIAL OF
DONALD JOHN TRUMP, Part III, S. Doc. No. 117-2, 117th Cong. 208 (2021).
414 167 Cong. Rec. S733 (daily ed. Feb. 13, 2021).
415 U.S. CONST. art. II, § 4.
416 Federal judges—appointed by the President, confirmed by the Senate, and enjoying tenure and salary protection—
have consistently been considered civil officers; in fact, the vast majority of impeached individuals have been federal
judges. See generally PORTEOUS IMPEACHMENT, supra note 7; United States v. Claiborne, 727 F.2d 842, 845 n.3 (9th
Cir. 1984) (observing that “[f]ederal judges are ‘civil officers’ within the meaning of Art. II sec 4”).
417 3 HINDS, supra note 5, §§ 2444–68, pp. 902, 946–47.
418 Joseph Story has also suggested that “civil officers” was not intended to cover military officers. See III STORY,
supra note 13, § 791 (concluding that “[t]he sense, in which [civil] is used in the Constitution, seems to be in
contradistinction to military, to indicate the rights and duties relating to citizens generally, in contradistinction to those
of persons engaged in the land or naval service of the government.”).
419 See discussion supra “Postbellum Practices (1865–1900)”; CONSTITUTIONAL GROUNDS, supra note 18, at 20; 3
HINDS, supra note 5, §§ 2444–68, pp. 902, 946–47. A House committee concluded that a Commissioner of the District
of Columbia was not a civil officer for impeachment purposes because he was not a federal official, but a municipal
officer. See 6 CANNON, supra note 5, § 548.
420 3 HINDS, supra note 5, §§ 2007, 2315. For a discussion of impeachment proceedings following an official’s
resignation, see “Impeachment After an Individual Leaves Office.”
421 As previously discussed, the House impeached Senator William Blount in 1797. The Senate, however, voted to
defeat a resolution that declared Blount a “civil officer” and ultimately voted to dismiss the impeachment articles
brought against Blount because it lacked jurisdiction over the matter. Although the record does not indicate precisely
the basis for the Senate dismissal, it has generally been viewed as establishing that Members of Congress are not
subject to impeachment. See, e.g., Motions Sys. Corp. v. Bush, 437 F.3d 1356, 1373 (Fed. Cir. 2006) (“This principle
has been accepted since 1799, when the Senate, presented with articles of impeachment against Senator William
Blount, concluded after four days of debate that a Senator was not a civil officer . . . for purposes of the Impeachment
Clause.”).
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Convention provide significant evidence of which individuals (beyond the President and Vice
President) the Framers intended to be impeachable.422 Impeachment precedents in both the House
and Senate are of equally limited utility with respect to subordinate executive officials (i.e.,
executive branch officials other than the President and Vice President). In all of American history,
only one such official has been impeached: Secretary of War William Belknap. Thus, while it
seems that executive officials of the highest levels have been viewed as “civil Officers,” historical
precedent provides no examples of the impeachment power being used against lower-level
executive officials.423 One must therefore look to other sources for aid in determining precisely
how far down the federal bureaucracy the impeachment power might reach.
The general purposes of impeachment may assist in interpreting the proper scope of “civil
Officers of the United States.” The congressional power of impeachment constitutes an important
aspect of the various checks and balances built into the Constitution to preserve the separation of
powers. It is a tool, entrusted to the House and Senate alone, to remove government officials in
the other branches of government, who either abuse their power or engage in conduct that
warrants their dismissal from an office of public trust. At least one commentator has suggested
that the Framers recognized, particularly for executive branch officials, that there would be times
when it may not be in the President’s interest to remove a “favorite” from office, even when that
individual has violated the public trust.424 As such, the Framers “dwelt repeatedly on the need of
power to oust corrupt or oppressive ministers whom the President might seek to shelter.”425 If the
impeachment power were meant to ensure that Congress has the ability to impeach and remove
corrupt officials that the President was unwilling to dismiss, it would seem arguable that the
power should extend to officers exercising a degree of authority, the abuse of which would harm
the separation of powers and good government.
The writings of early constitutional commentators also arguably suggest a broad interpretation of
“civil Officers of the United States.” Joseph Story addressed the reach of the impeachment power
in his influential Commentaries on the Constitution, asserting that “all officers of the United
states [] who hold their appointments under the national government, whether their duties are
executive or judicial, in the highest or in the lowest departments of the government, with the
exception of officers in the army and navy, are properly civil officers within the meaning of the
constitution, and liable to impeachment.”426 Similarly, William Rawle reasoned that “civil
Officers” included “[a]ll executive and judicial officers, from the President downwards, from the
judges of the Supreme Court to those of the most inferior tribunals. . . .”427 Consistent with the
text of the Constitution, these early interpretations suggest the impeachment power was arguably
intended to extend to “all” executive officers, and not just Cabinet-level officials and other
executive officials at the highest levels.
The meaning of “officer of the United States” under the impeachment provisions may be
informed by other provisions of the Constitution that use the same phrase. Applying this
contextual approach, the most thorough, and perhaps most helpful, judicial elucidation of the

422 See Gerhardt, Constitutional Limits, supra note 60, at 10–19. For discussion of the impeachment clauses at the
Constitutional Convention see RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 46, at 53–54, 64–66, 550–
63.
423 Some non-Cabinet executive branch officials have been investigated for possible impeachable offenses. See
Impeachment Articles Referred on John Koskinen: Hearing Before the H. Comm. On the Judiciary, 114th Cong. (2016)
(focusing on allegations against the Commissioner of the Internal Revenue Service).
424 BERGER, supra note 18, at 101 (citing statement of James Madison, 1 ANNALS OF CONG. 372 (1789)).
425 Id. at 228–30.
426 III STORY, supra note 13, § 792 (emphasis added).
427 WILLIAM RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STATES 214 (1829) (emphasis added).
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definition of “Officers of the United States” comes in the Constitution’s Appointments Clause.428
Indeed, that provision, which establishes the methods by which “Officers of the United States”
may be appointed, has generally been viewed as a useful guidepost in establishing the definition
of “civil Officers” for purposes of impeachment.429
The Appointments Clause provides that the President
shall nominate, and by and with the Advice and Consent of the Senate, shall appoint
Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all
other Officers of the United States, whose Appointments are not herein otherwise provided
for, and which shall be established by Law: but the Congress may by Law vest the
Appointment of such inferior Officers, as they think proper, in the President alone, in the
Courts of Law, or in the Heads of Departments.430
In interpreting the Appointments Clause, the Court has distinguished “Officers of the United
States,” whose appointment is subject to the requirements of the Clause, and non-officers, also
known as employees, whose appointment is not.431 The amount of authority that an individual
exercises will generally determine his classification as either an officer or employee. As
established in Buckley v. Valeo, an officer is “any appointee exercising significant authority
pursuant to the laws of the United States,” while employees are viewed as “lesser functionaries
subordinate to officers of the United States,” who do not exercise “significant authority.”432
The Supreme Court has further subdivided “officers” into two categories: principal officers, who
may be appointed only by the President with the advice and consent of the Senate; and inferior
officers, whose appointment Congress may vest “in the President alone, in the Courts of Law, or
in the Heads of Departments.”433 The Court has acknowledged that its “cases have not set forth an
exclusive criterion for distinguishing between principal and inferior officers for Appointments
Clause purposes.”434 The clearest statement of the proper standard to be applied in differentiating
between the two types of officers appears to have been made in Edmond v. United States435 when
the Court noted that “[g]enerally speaking, the term ‘inferior officer’ connotes a relationship with
some higher ranking officer or officers below the President . . . [and] whose work is directed and
supervised at some level by others who were appointed by presidential nomination with the
advice and consent of the Senate.”436 Thus, in analyzing whether one may be properly
characterized as either an inferior or a principal officer, the Court’s decisions appear to focus on

428 See, e.g., DOJ, OFFICE OF LEGAL COUNSEL, Officers of the United States Within the Meaning of the Appointments
Clause (Apr. 16, 2007), http://www.justice.gov/sites/default/files/olc/opinions/attachments/2015/05/29/op-olc-v031-
p0083.pdf; Akhil Reed Amar, On Impeaching Presidents, 28 HOFSTRA L. REV. 291, 303 (1999); Michael J. Broyde &
Robert A. Schapiro, Impeachment and Accountability: The Case of the First Lady, 15 CONST. COMMENT. 479 (1998).
429 U.S. CONST. art. II, §2, cl. 2.
430 Id.
431 See, e.g., Edmond v. United States, 520 U.S. 651, 663 (1997) (declaring that the exercise of “‘significant authority
pursuant to the laws of the United States’ marks . . . the line between officer and non-officer.” (quoting Buckley v.
Valeo, 424 U.S. 1, 126 (1976)). The Department of Justice, Office of Legal Counsel has argued that an office is subject
to the Appointments Clause “if (1) it is invested by legal authority with a portion of the sovereign powers of the federal
Government, and (2) it is ‘continuing.’” Officers of the United States Within the Meaning of the Appointments Clause,
supra note 428.
432 Buckley, 424 U.S. at 126 & n.162.
433 U.S. CONST. art. II, §2, cl. 2.
434 Edmond, 520 U.S. at 661.
435 Id. at 659.
436 Id. at 662–63.
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the extent of the officer’s discretion to make autonomous policy choices and the authority of other
officials to supervise and to remove the officer.
Using the principles established in the Court’s Appointments Clause jurisprudence to interpret the
scope of “civil Officers” for purposes of impeachment, it would appear that employees, as non-
officers, would not be subject to impeachment. Thus, lesser functionaries—such as federal
employees who belong to the civil service, do not exercise “significant authority,” and are not
appointed by the President or an agency head—would not be subject to impeachment. At the
opposite end of the spectrum, it would seem that any official who qualifies as a principal officer,
including a head of an agency such as a Secretary, Administrator, or Commissioner, would be
impeachable.
The remaining question is whether inferior officers, or those officers who exercise significant
authority under the supervision of a principal officer, are subject to impeachment and removal. As
noted above, an argument can be made from the text and purpose of the impeachment clauses, as
well as early constitutional interpretations, that the impeachment power was intended to extend to
“all” officers of the United States, and not just those in the highest levels of government. Any
official exercising “significant authority,” including both principal and inferior officers, would
therefore qualify as a “civil Officer” subject to impeachment. This view would permit Congress
to impeach and remove any executive branch “officer,” including many deputy political
appointees and certain administrative judges.437
There is some historical evidence, however, to suggest that inferior officers were not meant to be
subject to impeachment.438 For example, a delegate at the North Carolina ratifying convention
asserted that “[i]t appears to me . . . the most horrid ignorance to suppose that every officer,
however trifling his office, is to be impeached for every petty offense . . . I hope every gentleman
. . . must see plainly that impeachments cannot extend to inferior officers of the United States.”439
Additionally, Governeur Morris, member of the Pennsylvania delegation to the Constitutional
Convention, arguably implied that inferior officers would not be subject to impeachment in
stating that “certain great officers of State; a minister of finance, of war, of foreign affairs, etc. . . .
will be amenable by impeachment to the public justice.”440
Despite this ongoing debate, the authority to resolve any ambiguity in the scope of “civil
Officers” for purposes of impeachment lays initially with the House, in adopting articles of
impeachment, and then with the Senate, in trying the officer.441

437 For additional examples of inferior officers see, Ex parte Hennen, 38 U.S. (13 Pet.) 225, 258 (1839) (a district court
clerk); Ex parte Siebold, 100 U.S. (10 Otto) 371, 397–98 (1879) (election supervisor); United States v. Eaton, 169 U.S.
331, 343 (1898) (vice consul charged temporarily with the duties of the consul); Go-Bart Importing Co. v. United
States, 282 U.S. 344, 252–54 (1931) (United States Commissioner in district court proceedings); Morrison v. Olson,
487 U.S. 654 (1988) (independent counsel).
438 See Raoul Berger, Impeachment of Judges and Good Behavior Tenure, 79 YALE L. J. 1475 (1970) (asserting that
impeachment was not intended to extend to inferior officers in either the executive or judicial branches.).
439 Id. at 1510 (statement of Archibald Maclaine).
440 Id. at n.176 (citing RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 46, at 53–54).
441 Although many decisions made by the House and Senate in the course of the impeachment process are not subject to
judicial review, it is unclear whether a federal court would be willing to review whether an individual is a “civil
Officer” subject to impeachment.
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Is Impeachment Limited to Criminal Acts?
The Constitution describes the grounds of impeachment as “Treason, Bribery, or other high
Crimes and Misdemeanors.”442 As discussed above, the meaning of “high Crimes and
Misdemeanors” is not defined in the Constitution or in statute.443
Some have argued that only criminal acts are impeachable offenses under the U.S. Constitution;
impeachment is therefore inappropriate for noncriminal activity.444 In support of this assertion,
one might note that the debate on impeachable offenses during the Constitutional Convention in
1787 shows that criminal conduct was encompassed in the “high crimes and misdemeanors”
standard.445
As described above,446 the notion that only criminal conduct can constitute sufficient grounds for
impeachment does not, however, track historical practice.447 A variety of congressional materials
support the notion that impeachment applies to certain noncriminal misconduct. For example,
House committee reports on potential grounds for impeachment have described the history of
English impeachment as including noncriminal conduct and noted that this tradition was adopted
by the Framers.448 In accordance with the understanding of “high” offenses in the English
tradition, impeachable offenses under this view are “constitutional wrongs that subvert the
structure of government, or undermine the integrity of office and even the Constitution itself.”449
“[O]ther high crimes and misdemeanor[s]” are not limited to indictable offenses, but apply to
“serious violations of the public trust.”450 Congressional materials take the view that
“‘Misdemeanor’ . . . does not mean a minor criminal offense as the term is generally employed in
the criminal law,” but refers instead to the behavior of public officials.451 “[H]igh Crimes and
Misdemeanors” may thus be characterized as “misconduct that damages the state and the
operations of governmental institutions.”452
According to congressional materials, the purposes underlying the impeachment process also
reflect that noncriminal activity may constitute sufficient grounds for impeachment.453 The

442 U.S. CONST. art. II, § 4.
443 See supra “High Crimes and Misdemeanors.”
444 See, e.g., NIXON IMPEACHMENT, supra note 116, at 362–72 (minority views); 3 DESCHLER, supra note 95, at Ch. 14 §
3.8, pp. 1992–94. See also CONSTITUTIONAL GROUNDS, supra note 18, at 22. As previously indicated, President
Trump’s attorneys asserted during his first impeachment trial that “an impeachable offense must be a violation of
established law,” and the House’s failure to allege a criminal act was one of various reasons given by those Senators
who ultimately voted to acquit the President. See PROCEEDINGS OF THE UNITED STATES SENATE IN THE IMPEACHMENT
TRIAL OF PRESIDENT DONALD JOHN TRUMP, VOL. I: PRELIMINARY PROCEEDINGS, S. Doc. No. 116-18, 116th Cong. 471
(2020).
445 See NIXON IMPEACHMENT, supra note 116, at 362–72 (citing RECORDS OF THE FEDERAL CONVENTION OF 1787, supra
note 46, at 64–70). For a discussion of presidential impeachment grounds, see 3 DESCHLER, supra note 95, at Ch. 14 §
3.7, pp. 1979–83.
446 See supra “History of Impeachment in Congress.”
447 See GERHARDT, supra note 15, at 53 (pointing to the impeachments and convictions of Judge Pickering, 2 ANNALS
OF CONG. 319–22 (1804), Judge West H. Humphreys, CONG. GLOBE, 37th Cong. 2d Sess. 2949–50 (1862), Judge
Robert Archbald, 48 CONG. REC. 8910 (1912), and Judge Halsted Ritter, 80 CONG. REC. 5606 (1936)); BLACK, supra
note 42, at 33–36; BERGER, supra note 18, at 55–59.
448 See CONSTITUTIONAL GROUNDS, supra note 18, at 22–24.
449 Id. at 26.
450 NIXON JR. IMPEACHMENT, supra note 362, at 5.
451 Id.
452 HASTINGS IMPEACHMENT, supra note 147, at 6.
453 See CONSTITUTIONAL GROUNDS, supra note 18, at 22–25.
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purpose of impeachment is not to inflict personal punishment for criminal activity. In fact, the
Constitution explicitly makes clear that impeached individuals are not immunized from criminal
liability once they are impeached for particular activity.454 Instead, impeachment is a “remedial”
tool; it serves to effectively “maintain constitutional government” by removing individuals unfit
for office.455 Grounds for impeachment include abuse of the particular powers of government
office or a violation of the “public trust”456—conduct that is unlikely to be barred by statute.457
Congressional practice also supports this position. Many impeachments approved by the House of
Representatives have included conduct that did not involve criminal activity.458 For example, in
1803, Judge John Pickering was impeached and convicted for, among other things, appearing on
the bench “in a state of total intoxication.”459 In 1912, Judge Robert W. Archbald was impeached
and convicted for abusing his position as a judge by inducing parties before him to enter financial
transactions with him.460 In 1936, Judge Halstead Ritter was impeached and convicted for
conduct that “br[ought] his court into scandal and disrepute, to the prejudice of said court and
public confidence in the administration of justice . . . and to the prejudice of public respect for
and confidence in the Federal judiciary.”461 And a number of judges were impeached for misusing
their position for personal profit.462
Are the Standards for Impeachable Offenses the Same for Judges
and Executive Branch Officials?
Some have suggested that the standard for impeaching a federal judge differs from an executive
branch official.463 While Article II, Section 1, of the Constitution specifies the grounds for the
impeachment of civil officers as “Treason, Bribery, or other high Crimes and Misdemeanors,”
Article III, Section 1, provides that federal judges “hold their Offices during good Behaviour.”464
One argument posits that these clauses should be read in conjunction, meaning that judges can be

454 U.S. CONST. art. I, § 3, cl. 6, 7.
455 See CONSTITUTIONAL GROUNDS, supra note 18, at 22–24.
456 NIXON JR. IMPEACHMENT, supra note 362, at 5.
457 See CONSTITUTIONAL GROUNDS, supra note 18, at 22–25.
458 See HASTINGS IMPEACHMENT, supra note 147, at 6 (“The rich body of precedent incorporated with the adoption of
the phrase ‘high Crimes and Misdemeanors’ makes clear that the phrase refers to misconduct that damages the state and
the operations of governmental institutions, and is not limited to criminal misconduct. Indeed, the phrase itself had no
roots in the ordinary criminal law, but was limited to parliamentary impeachments. In the United States ten of the
impeachments voted by the House of Representatives have involved one or more charges that did not allege a violation
of the criminal law.”).
459 See CONSTITUTIONAL GROUNDS, supra note 18, at 43. Judge Pickering did not appear himself or by counsel. In the
Senate trial, a written petition offered by Judge Pickering’s son, through Robert G. Harper, indicated that the Judge had
been under treatment for mental illness for over two years without success. 3 HINDS, supra note 5, §§ 2333–35, pp.
697–704. See supra “Early Historical Practices (1789–1860).”
460 CONSTITUTIONAL GROUNDS, supra note 18, at 51–52. At the time this was not a prosecutable offense. See
GERHARDT, supra note 15, at 53 (citing 48 CONG. REC. 8910 (1912)). See supra “Early Twentieth Century Practices.”
461 RITTER IMPEACHMENT, supra note 278, at 637–38. See supra “Early Twentieth Century Practices.”
462 See HOUSE PRACTICE, supra note 6, at ch. 27 § 4 (“The use of office for direct or indirect personal monetary gain
was also involved in the impeachments of Judges Charles Swayne (1903), Robert Archbald (1912), George English
(1926), Harold Louderback (1932), Halsted Ritter (1936), Samuel Kent (2009), and Thomas Porteous (2010)”).
463 See 3 DESCHLER, supra note 95, at Ch. 14 § 3.9, pp. 1994–98; GERHARDT, supra note 15, at 106–07.
464 U.S. CONST. art. II, § 4; art. III, § 1.
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impeached and removed from office if they fail to exhibit good behavior or if they are guilty of
“treason, bribery, or other high Crimes and Misdemeanors.”465
But while one might find some support for the notion that the “good behavior” clause constitutes
an additional ground for impeachment in early twentieth century practice,466 the “modern view”
of Congress appears to be that the phrase “good behavior” simply designates judicial tenure.467
Under this reasoning, rather than functioning as a ground for impeachment, the “good behavior”
phrase simply makes clear that federal judges retain their office for life unless they are removed
through a proper constitutional mechanism. For example, a 1973 discussion of impeachment
grounds released by the House Judiciary Committee reviewed the history of the phrase and
concluded that the “Constitutional Convention . . . quite clearly rejected” a “dual standard” for
judges and civil officers.468 The next year, the House Judiciary Committee’s Impeachment Inquiry
asked whether the “good behavior” clause provides another ground for impeachment of judges
and concluded that “[i]t does not.”469 It emphasized that the House’s impeachment of judges was
“consistent” with impeachment of “non-judicial officers.”470 Finally, the House Report on the
Impeachment of President Clinton affirmed this reading of the Constitution, stating that
impeachable conduct for judges mirrored impeachable conduct for other civil officers in the
government.471 The “treason, bribery, and high Crimes and Misdemeanors” clause thus serves as
the sole standard for impeachable conduct for both executive branch officials and federal
judges.472
Still, even if the “good behavior” clause does not delineate a standard for impeachment and
removal for federal judges, as a practical matter, one might argue that the range of impeachable
conduct differs between judges and executive branch officials because of the differing nature of
each office. For example, one might argue that a federal judge could be impeached for perjury or
fraud because of the importance of trustworthiness and impartiality to the judiciary, while the
same behavior might not always constitute impeachable conduct for an executive branch official.
But given the varied factors at issue—including political calculations, the relative paucity of
impeachments of nonjudicial officers compared to judges, and the fact that a nonjudicial officer
has never been convicted by the Senate—it is uncertain if conduct meriting impeachment and
conviction for a judge would fail to qualify for a nonjudicial officer.
The impeachment and acquittal of President Clinton highlights this difficulty. The House of
Representatives impeached President Clinton for (1) providing perjurious and misleading
testimony to a federal grand jury and (2) obstruction of justice in regards to a civil rights action
against him.473 The House Judiciary Committee report that recommended articles of impeachment
argued that perjury by the President was an impeachable offense, even if committed with regard
to matters outside his official duties.474 The report rejected the notion that conduct such as perjury
was “more detrimental when committed by judges and therefore only impeachable when

465 See HOUSE PRACTICE, supra note 6, at ch. 27 § 3.
466 See IMPEACHMENT, SELECTED MATERIALS, supra note 168, at 666.
467 HOUSE PRACTICE, supra note 6, at ch. 27 § 4.
468 See IMPEACHMENT, SELECTED MATERIALS, supra note 168, at 667.
469 See CONSTITUTIONAL GROUNDS, supra note 18, at 17.
470 Id.
471 CLINTON IMPEACHMENT, supra note 92, at 110–18.
472 See IMPEACHMENT, SELECTED MATERIALS, supra note 168, at 666.
473 See id. at 108, 119.
474 See id. at 108.
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committed by judges.”475 The report pointed to the impeachment of Judge Claiborne, who was
impeached and convicted for falsifying his income tax returns—an act which “betrayed the trust
of the people of the United States and reduced confidence in the integrity and impartiality of the
judiciary.”476 While it is “devastating” for the judiciary when judges are perceived as dishonest,
the report argued, perjury by the President is “just as devastating to our system of government.”477
And, the report continued, both Judge Claiborne and Judge Nixon were impeached and convicted
for perjury and false statements in matters distinct from their official duties.478 Likewise, the
report concluded that President Clinton’s perjurious conduct, though seemingly falling outside his
official duties as President, nonetheless constituted grounds for impeachment.
In contrast, the minority views from the report opposing impeachment reasoned that “not all
impeachable offenses are crimes and not all crimes are impeachable offenses.”479 The minority
argued that the President is not impeachable for all potential crimes, no matter how minor;
impeachment is reserved for “conduct that constitutes an egregious abuse or subversion of the
powers of the executive office.”480 Examining the impeachment of President Andrew Johnson and
the articles of impeachment drawn up for President Richard Nixon, the minority concluded that
both were accused of committing “public misconduct” integral to their “official duties.”481 The
minority noted that the Judiciary Committee had rejected an article of impeachment against
President Nixon alleging that he committed tax fraud, primarily because that “related to the
President’s private conduct, not to an abuse of his authority as President.”482
The minority did not explicitly claim that the grounds for impeachment might be different
between federal judges and executive branch officials, but its reasoning at least hints in that
direction. Its rejection of nonpublic behavior as sufficient grounds for impeachment of the
President—including its example of tax fraud as nonpublic behavior that does not qualify—
appears to conflict with the past impeachment and conviction of federal judges on just this
basis.483 One reading of the minority’s position is that certain behavior might be impeachable
conduct for a federal judge, but not for the President.
While two articles of impeachment were approved by the House, the Senate acquitted President
Clinton on both charges.484 Even so, generating firm conclusions from this result is difficult, as
there may have been varying motivations for these votes.485 One possibility is that the acquittal
occurred because some Senators—though agreeing that the conduct merited impeachment—
thought the House Managers failed to prove their case. Another is that certain Senators disagreed
that the behavior was impeachable at all. Yet another possibility is that neither ideological stance
was considered and voting was conducted solely according to political calculations.

475 Id. at 112.
476 Id. (quoting 132 CONG. REC. S15, 760–62 (daily ed. Oct. 9, 1986)).
477 Id. at 113.
478 IMPEACHMENT, SELECTED MATERIALS, supra note 168, at 118.
479 Id. at 204 (minority views).
480 Id. at 205.
481 Id. at 206–07.
482 Id. at 207.
483 Id. Cf. discussion supra “Contemporary Judicial Impeachments.”
484 145 CONG. REC. 2375–78 (1999).
485 See generally GERHARDT, supra note 15, at 175–79.
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What Is the Constitutional Definition of Bribery?
Civil officers are subject to impeachment for treason, bribery, or “other high Crimes and
Misdemeanors.”486 Treason is defined in the constitutional text, but bribery is not.487 As this report
has discussed, Congress has substantial discretion in determining what misconduct constitutes
“high Crimes and Misdemeanors” meriting impeachment and removal for government officials.
Likewise, Congress could presumably look to several different sources to inform its
understanding of what behavior qualifies as bribery under the Constitution.488
One source might be the current federal criminal code.489 Under federal statute, it is a criminal
offense for a public official to corruptly seek or receive bribes in return for official acts.490
Another might be the understanding of the crime of bribery at the nation’s Founding. At the time
of the Constitutional Convention, bribery was a common law crime,491 although its precise scope
is somewhat difficult to determine. According to Blackstone, it included situations where a judge,
or other person involved in the administration of justice, took “any undue reward to influence his
behavior in office.”492 Though the scope of the crime of bribery was initially narrow,493 it appears
to have expanded to include giving as well as receiving bribes, as well as attempted bribery in
certain situations.494 Some commentators assert that, at the time of the Founding, the English and

486 U.S. CONST. art. II, § 4.
487 Id. art. III, § 3, cl. 1.
488 Compare S. Doc. No. 1140, at 1695 (1913) (“The offense of bribery had a fixed status in the parliamentary law as
well as the criminal law of England when our Constitution was adopted, and there is little difficulty in determining its
nature and extent in the application of the law of impeachments in this country.”), with HASTINGS IMPEACHMENT, supra
note 147, at 1, 8 (framing an impeachment article alleging a conspiracy to obtain money in return for a lenient sentence
as a general impeachable offense, rather than explicitly in terms of the bribery provision in the Constitution).
489 See generally Constitutional Limits, supra note 60, at 87 (“Violations of federal criminal statutes, such as the
bribery statute represent abuses against the state sufficient to subject the perpetrator to impeachment and removal,
because bribery demonstrates serious lack of judgment and respect for the law and because bribery lowers respect for
the office.”).
490 18 U.S.C. § 201. The statute defines a “public official” as a “Member of Congress, Delegate, or Resident
Commissioner, either before or after such official has qualified, or an officer or employee or person acting for or on
behalf of the United States, or any department, agency or branch of Government thereof, including the District of
Columbia, in any official function, under or by authority of any such department, agency, or branch of Government, or
a juror. . . .” Id. § 201(a).
491 FRANK O. BOWMAN III, HIGH CRIMES AND MISDEMEANORS: A HISTORY OF IMPEACHMENT FOR THE AGE OF TRUMP
243 (2019).
492 IV WILLIAM BLACKSTONE, COMMENTARIES ON THE LAW OF ENGLAND: IN FOUR BOOKS 129 (1765-69).
493 See EDWARD COKE, THIRD PART OF THE INSTITUTES OF THE LAWS OF ENGLAND: CONCERNING HIGH TREASON, AND
OTHER PLEAS OF THE CROWN AND CRIMINAL CAUSES 147 (1644) (noting that “bribery is only committed by him, that
hath a judicial place, and extortion may be committed both by him that hath a judicial place, or by him that hath a
ministerial office”).
494 GILES JACOB, BRIBERY, A NEW-LAW DICTIONARY (1744); STANDISH GROVE GRADY & COLLEY HARMAN SCOTLAND,
THE LAW AND PRACTICE IN PROCEEDINGS ON THE CROWN SIDE OF THE COURT OF THE QUEEN’S BENCH 11 (1844)
(“Wherever it is a crime to take, it is a crime to give. They are reciprocal. And in many cases, especially in bribery at
elections to parliament, the attempt is a crime. It is complete on his side who offers it.” (quoting R. v. Vaughan (1769)
4 Burr. 2494, 2500)) (italics removed). See also WILLIAM OLDNALL RUSSELL, A TREATISE ON CRIMES AND
MISDEMEANORS 239-41 (1819) (“Bribery is the receiving or offering any undue reward by or to any person whatsoever,
whose ordinary profession or business relates to the administration of public justice, in order to influence his behaviour
in office, and incline him to act contrary to the known rules of honesty and integrity. . . . And it seems that this offence
will be committed by any person in an official situation, who shall corruptly use the power or interest of his place for
rewards or promises. . . . attempts to bribe, though unsuccessful, have in several cases been held to be criminal.”)
(italics in original).
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American common law definition of bribery had developed to apply not just to judges, but also to
executive officers.495
No matter the precise scope of bribery in the common law courts, in Parliamentary practice496 it
was understood to constitute an impeachable offense in England at the time of the nation’s
Founding.497 In 1624, the House of Commons impeached the Lord Treasurer (one of the King’s
ministers) for bribery.498
Actual debate on the meaning of bribery at the Constitutional Convention was limited. As
mentioned above, while discussing presidential impeachment, Gouverneur Morris asserted that
the President should be subject to the impeachment process because he might “be bribed by a
greater interest to betray his trust,” noting the example of Charles II receiving a bribe from Louis
XIV.499
The First Congress enacted a federal bribery statute for customs officers, which provided that
those officers convicted of taking or receiving a bribe be fined and barred from holding office in
the future, while the payer of a bribe would be fined as well.500 The same Congress passed another

495 See ROLLIN M. PERKINS & RONALD N. BOYCE, CRIMINAL LAW 527 (3d. ed. 1982) (noting that “English law,
however, developed . . . to extend beyond the bribery of a judicial officer” to include, for instance, bribery of a privy
counsellor); JOEL PRENTISS BISHOP, COMMENTARIES ON THE CRIMINAL LAW 50 (1882) (claiming that Blackstone’s
definition of bribery as too narrow because the offense “extends to all officers connected with the administration of the
government”). But see James Lindgren, The Theory, History, and Practice of the Bribery-Extortion Distinction, 141 U.
PA. L. REV. 1695, 1696–97 (1993) (“In England and the United States, the primary public corruption offense over most
of the last 700 years has been extortion, though in recent years bribery prosecutions appear to be at least as common.
As an offense called bribery, this crime probably appeared relatively late (mid-1500s) and may not have been routinely
applied to administrative officials until the 1800s. Obviously, there was always a need to punish bribery-type behavior
by public officials. Continuously since the 1200s, extortion has met that need.”). It bears mention that the line between
“judicial” and “executive” officers in England at this time was not as clear cut as the division is under the U.S.
constitutional system. Judges in England “remained in many ways royal servants like any other” and could be removed
from their position by the Crown. See CHAFETZ, supra note 20, at 81.
496 See Note, The Scope of the Power to Impeach, 84 YALE L.J. 1316, 1328 (1975) (“[T]he jurisdiction of Parliament as
a court of impeachment was separate, and was not bound by the precedents of the King's courts. Impeachable offenses
within the jurisdiction of Parliament were governed only by the law of Parliament.”); Grantham v. Gordon, 24 Eng.
Rep. 539, 541 (H.L. 1719) (“[I]mpeachments in Parliament differed from indictments, and might be justified by the law
and course of Parliament.”); see also 2 RICHARD WOODDESON, A SYSTEMATICAL VIEW OF THE LAWS OF ENGLAND 605-
06 (1792) (noting that in English practice, articles of impeachment need not take the strict form of an indictment and
“the particular words supposed to be criminal are not necessary to be expressly specified in such impeachments”); S.
DOC. NO. 1140, at 1695 (1913) (“The provision in . . . the Constitution . . . defining impeachable offenses . . . was taken
from the British parliamentary law established and prevailing at the time of the formation of our Government. It must,
therefore, be interpreted by the light of time-honored parliamentary usage, as contradistinguished from the common
municipal law of England.”).
497 See WOODDESON, supra note 466, at 602 (noting that a lord chancellor could be impeached for bribery); CLAYTON
ROBERTS, THE GROWTH OF RESPONSIBLE GOVERNMENT IN STUART ENGLAND 31 (1966) (describing how the House of
Commons “showed no reluctance to punish extortionists and receivers of bribes” via impeachment); III STORY, supra
note 13, § 800 (“In examining the parliamentary history of impeachments, it will be found, that many offences, not
easily definable by law, and many of a purely political character, have been deemed high crimes and misdemeanours
worthy of this extraordinary remedy. Thus, lord chancellors, and judges, and other magistrates, have not only been
impeached for bribery, and acting grossly contrary to the duties of their office; but for misleading their sovereign by
unconstitutional opinions, and for attempts to subvert the fundamental laws, and introduce arbitrary power.”).
498 See 3 H.L. JOUR. 380 (1624) (convicting Lionel Cranfield, Earl of Middlesex and Lord Treasurer on various articles
including bribery and extortion).
499 5 ELLIOT’S DEBATES, supra note 59.
500 See Act of July 31, 1789 ch. 5, § 35, 1 Stat. 29 (1789). The Supreme Court has acknowledged that actions taken by
the First Congress can reveal the original understanding of the Constitution, as twenty of its members were delegates at
the Constitutional Convention. See Bowsher v. Synar, 478 U.S. 714, 724 n.3 (1986); McCulloch v. Maryland, 17 U.S.
(4 Wheat.) 316, 424 (1819).
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bribery statute that applied to anyone who “directly or indirectly, give[s] any sum or sums of
money, or any other bribe, present or reward, or any promise, contract, obligation or security, for
the payment or delivery of any money, present or reward, or any other thing to obtain or procure
the opinion, judgment or decree of any judge or judges of the United States” as well as the judge
who accepted the bribe.501 Other officers of the United States were added to the federal statute’s
provisions in 1853.502 And the states passed their own laws about the time of the Constitution’s
drafting that prohibited bribery and the closely related crime of extortion503 by state officers and
judges.504
A number of impeachments in the United States have charged individuals with misconduct that
was viewed as bribery. In most of those instances, however, the specific articles of impeachment
were framed as “high crimes and misdemeanors” or an “impeachable offense.”505 For instance,
the House of Representatives approved articles of impeachment against then-Judge Hastings,
including one for the “impeachable offense” of participating in a “corrupt conspiracy to obtain
$150,000 from defendants [in a case before him] in return for the imposition of [lighter]
sentences.”506 Although the article did not mention bribery, the Judiciary Committee report
analyzing the article described Judge Hastings as participating in a “bribery conspiracy” or a
“bribery scheme.”507 The Senate convicted Hastings on this article.508 Likewise, the first article of
impeachment against Judge Porteous charged him with “solicit[ing] and accept[ing] things of
value” from attorneys without disclosure and ruling in those clients favor.509 The second charged
him with “solicit[ing] and accept[ing] things of value . . . for his personal use and benefit, while at
the same time taking official actions that benefitted” a bail bondman and his sister.510 Neither
article explicitly referenced bribery, but much like the Hastings impeachment, the Judiciary
Committee report analyzing the articles alleged that Judge Porteous had participated in a “bribery
scheme.”511

501 Crimes Act of 1790, ch. 9, § 21, 1 Stat. 112 (1790).
502 Act of Feb. 26. 1853, ch. 81, § 6, 10 Stat. 171 (1853).
503 See James Lindgren, The Elusive Distinction Between Bribery and Extortion: From the Common Law to the Hobbs
Act, 35 UCLA L. REV. 815, 875 (1988) (“Since bribery law remained undeveloped for so long, another crime was
needed to fill the gap-especially against corruption by nonjudicial officers. That crime was extortion. From the 13th
century to the present day, much common behavior that we now call bribery has been punished as common law
extortion.”).
504 See, e.g., Laws of New York, ch. 19, at 632 (1788); 12 Va. Stat. at Large 796 (1788) (correcting 11 Va. Stat. at
Large 335-36 (1786)).
505 See, e.g., 3 HINDS, supra note 5, §§ 2385–86, pp. 805–07; see also id. § 2390, pp. 810–11 (impeachment of Judge
Humphreys); 132 CONG. REC. H4710–22 (daily ed. July 22, 1986) (impeachment of Judge Claiborne). For instance,
President Grant’s Secretary of War, William W. Belknap, was impeached in 1876 for allegedly receiving payments in
return for appointing an individual to maintain a trading post in Indian territory. 3 Hinds, supra note 5, §§ 2444–46, pp.
902–06. See DOJ, OFFICE OF LEGAL COUNSEL, Legal Aspects of Impeachment: An Overview, at 30 (1974) (describing
the impeachment of Belknap “on grounds which amounted to bribery”).
506 H.R. Res. 499, 100th Cong., 2d Sess. (1988); HASTINGS IMPEACHMENT, supra note 147, at 1–5, 8.
507 HASTINGS IMPEACHMENT, supra note 147, at 41.
508 135 Cong. Rec. S13, 783–88 (daily ed. Oct. 20, 1989).
509 See, e.g., PORTEOUS IMPEACHMENT, supra note 7, at 7 (“Judge Porteous . . . solicited and accepted things of value
from both Amato and his law partner Creely, including a payment of thousands of dollars in cash. Thereafter, and
without disclosing his corrupt relationship with the attorneys of Amato & Creely PLC or his receipt from them of cash
and other things of value, Judge Porteous ruled in favor of their client, Liljeberg.”).
510 Id. at 16.
511 Id. at 17 (“This type of conduct is specifically set forth in Article II, Section 4 of the Constitution as a grounds for
impeachment—that is ‘Treason, Bribery, or other high Crimes and Misdemeanors.’”). In addressing Judge Porteous’s
(continued...)
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In sum, the Framers provided that bribery was an impeachable offense for the President, Vice
President, and other civil officers. At the time of the Constitution’s drafting, bribery was a
common law crime whose scope had expanded from its earlier roots. And Parliament had
impeached ministers of the Crown for bribery.512 But the Framers did not adopt a formal
definition of bribery in the Constitution, and the debates at the Constitutional Convention and
during ratification do not clearly indicate the intended meaning of bribery for impeachment
purposes.513 In any case, the practice of impeachment in the United States has tended to envelop
charges of bribery within the broader standard of “other high Crimes and Misdemeanors.”514
Impeachment for Behavior Prior to Assuming Office
Most impeachments have concerned behavior occurring while an individual is in a federal office.
But some have addressed, at least in part, conduct before individuals assumed their positions. For
example, in 1912, a resolution515 impeaching Judge Robert W. Archbald and setting forth thirteen
articles of impeachment was reported out of the House Judiciary Committee and agreed to by the
House.516 The Senate convicted Judge Archbald in January the next year. At the time that Judge
Archbald was impeached by the House and tried by the Senate in the 62nd Congress, he was U.S.
Circuit Judge for the Third Circuit and a designated judge of the U.S. Commerce Court. The
articles of impeachment brought against him alleged misconduct in those positions as well as in
his previous position as U.S. District Court Judge of the Middle District of Pennsylvania.517 Judge
Archbald was convicted on four articles alleging misconduct in his then-current positions as a
circuit judge and Commerce Court judge, and on a fifth article that alleged misuse of his office
both in his then-current positions and in his previous position as U.S. District Judge.518
While Judge Archbald was impeached and convicted in part for behavior occurring before he
assumed his then-current position, that behavior occurred while he held a prior federal office.
Judge G. Thomas Porteous, in contrast, is the first individual to be impeached by the House519 and
convicted by the Senate based in part on conduct occurring before he began his tenure in federal
office. Article II alleged misconduct beginning while Judge Porteous was a state court judge as
well as misconduct while he was a federal judge.520 Article IV alleged that Judge Porteous made
false statements to the Senate and FBI in connection with his nomination and confirmation to the

conduct, the report also “note[d] by way of reference” judicial interpretations of “federal bribery laws.” Id. at 86 n.
397.
512 See discussion infra notes 466–67.
513 See discussion infra note 468.
514 See discussion infra notes 474–80.
515 In response to H. Res. 511, 62d Cong. (1912), see 48 CONG. REC. 5242 (1912), President William Howard Taft
transmitted to the House Judiciary Committee information related to an investigation by the U.S. Department of Justice
of charges of improper conduct by Judge Robert W. Archbald, which had been brought to the President’s attention by
the Commissioner of the Interstate Commerce Commission. 6 CANNON, supra note 5, § 498, pp. 684–85.
516 6 CANNON, supra note 5, §§ 499–500, pp. 686–87.
517 H. Res. 622, 62d Cong. (1912).
518 Thirteen articles of impeachment were brought against Judge Archbald. He was convicted on articles I, III, IV, V,
and XIII, acquitted on the remaining articles, removed from office, and disqualified from holding further offices of
honor, trust, or profit under the United States. 6 CANNON, supra note 5, § 499–501, pp. 686–89; id. § 512, pp. 705–08.
519 156 CONG. REC. 3155–157 (2010).
520 PORTEOUS IMPEACHMENT, supra note 7, at 16–17.
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U.S. District Court for the Eastern District of Louisiana.521 He was convicted on all four articles,
removed from office, and disqualified from holding future federal offices.522
On the other hand, it does not appear that any President, Vice President, or other civil officer of
the United States has been impeached by the House solely based on conduct occurring before he
began his tenure in the office held at the time of the impeachment investigation, although the
House has, on occasion, investigated such allegations.523
Impeachment After an Individual Leaves Office
It appears that federal officials who have resigned have still been thought to be susceptible to
impeachment and a ban on holding future office.524 Secretary of War William W. Belknap
resigned hours before the House impeached him,525 but the Senate still conducted a trial in which

521 Id. at 52–53.
522 156 CONG. REC. 19, 134–36 (2010).
523 For example, in 1826, the House of Representatives responded to a letter from Vice President John C. Calhoun
requesting an impeachment investigation into whether his prior conduct as Secretary of War constituted an
impeachable offense by referring the matter to a select committee. After an extensive investigation, the select
committee reported back, recommending that the House take no action. The House laid the measure on the table. 3
HINDS, supra note 5, § 1736, pp. 97–99.
Several decades later, the House declined to pursue impeachment charges against Vice President Schuyler Colfax for
activity occurring while he was Speaker of the House. Pursuant to a resolution agreed to on December 2, 1872, the
Speaker pro tempore of the House appointed a special committee “to investigate and ascertain whether any member of
this House was bribed by Oakes Ames or any other person in any matter touching his legislative duty.” 46 CONG.
GLOBE, 42d Cong., 3d Sess. 11 (1872). Allegations had been made during the preceding presidential campaign
suggesting that Representative Oakes Ames of Massachusetts had bribed several Members of the House to perform
certain legislative acts for the benefit of the Union Pacific Railroad Company by giving them presents of stock in a
corporation known as the “Credit Mobilier of America” or by presents derived therefrom. Id. at 11–12. On February 20,
1873—apparently at Colfax’s request after leaving his position as Speaker and becoming Vice President —the House
agreed to a resolution directing that the testimony taken by the special committee be referred to the House Judiciary
Committee “to inquire whether anything in such testimony warrants articles of impeachment of any officer of the
United States not a member of this House, or makes it proper that further investigation be ordered in this case.” 46
CONG. GLOBE, 42d Cong., 3d Sess. 1545 (1873); see 3 DESCHLER, supra note 95, at Ch. 14, § 5.14, pp. 2035–36. After
a review of past federal, state, and British impeachment precedents, the House Judiciary Committee stated that, in light
of the pertinent U.S. constitutional language and the remedial nature of impeachment, impeachment “should only be
applied to high crimes and misdemeanors committed while in office, and which alone affect the officer in discharge of
his duties as such, whatever may have been their effect upon him as a man, for impeachment touches the office only
and qualifications for the office, and not the man himself.” 46 CONG. GLOBE, 42d Cong., 3d Sess. 1652 (1873). See also
3 HINDS, supra note 5, § 2510, pp. 1016–19. The committee’s report was made in the House on February 24, 1873,
briefly debated, and then postponed to February 26, 1873. 46 CONG. GLOBE, 42d Cong., 3d Sess. 1655–57 (1873).
However, it does not appear to have been taken up again. 3 HINDS, supra note 5, § 2510, pp. 1016–19.
Finally, in the 93rd Congress, then-Vice President Spiro Agnew wrote a letter to the House seeking an impeachment
investigation of allegations against him concerning his conduct while Governor of Maryland. The Speaker declined to
take up the matter because it was pending before the courts. The House took no substantive action on seven related
resolutions, seemingly because of concerns regarding the matter’s pendency in the courts and regarding the fact that the
conduct involved occurred before Agnew began his tenure as Vice President. 3 DESCHLER, supra note 95, at Ch. 14 §
5.14.
524 See HOUSE PRACTICE, supra note 6, at ch. 27 § 2. (“The House and Senate have the power to impeach and try an
accused official who has resigned.”); GERHARDT, supra note 15, at 79 (noting “surprising consensus among
commentators that resignation does not necessarily preclude impeachment and disqualification”); Brian C. Kalt, The
Constitutional Case for the Impeachability of Former Federal Officials: An Analysis of the Law, History, and Practice
of Late Impeachment, 6 TEX. REV. L. & POL. 13, 18 (2001); RAWLE, supra note 427, at 210. But see III STORY, supra
note 13, § 803; Robert C. Steele, Note, Defining High Crimes and Misdemeanors: A Call for Stare Decisis, 15 J.L. &
POL. 309, 358 (1999).
525 TASSEL & FINKELMAN, supra note 139, at 192–93.
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Belknap was acquitted.526 During the trial, upon objection by Belknap’s counsel that the Senate
lacked jurisdiction because Belknap was now a private citizen, the Senate voted in favor of
jurisdiction.527
More recently, the second impeachment trial of President Donald Trump took place after he had
left office.528 Following debate on whether the Senate had jurisdiction over the former President
for acts occurring while in office, the Senate voted that it did by a vote of 56–44.529
That said, the resignation of an official under investigation for impeachment often ends
impeachment proceedings. For example, no impeachment vote was taken following President
Richard Nixon’s resignation after the House Judiciary Committee decided to report articles of
impeachment to the House.530 And proceedings were ended following the resignation of Judges
English,531 Delahay,532 and Kent.533
What Is the Standard of Proof in House and Senate Impeachment
Proceedings?
In the judicial system, the degree of certainty with which parties must prove their allegations
through the production of evidence—what is known as the burden of persuasion or the standard
of proof—varies depending on the type of proceeding.534 In a criminal trial, in which a defendant
risks deprivation of life and liberty, the prosecutor’s burden of proof is high. Each element of the
offense must be proved “beyond a reasonable doubt.”535 In civil litigation between private parties,
in which the potential harm to a defendant is less severe, the plaintiff’s burden of proof is
reduced. The allegations generally need only be proved by a “preponderance of the evidence.”536
An even more generous standard is used by federal grand juries, who may issue an indictment on
a finding that there is “probable cause” to believe that a crime has occurred.537 In yet other

526 3 HINDS, supra note 5, §§ 2444–68, pp. 902, 946–47.
527 Id. §§ 2459–60, pp. 933–36. As mentioned above, Belknap was acquitted of the charges against him in the articles
of impeachment. This acquittal seems to have reflected, in part, a residual level of concern on the part of some of the
Senators as to the wisdom of trying an impeachment of a person no longer in office. Two of the thirty-seven voting
“guilty” and twenty-two of the twenty-five voting “not guilty” stated that they believed the Senate lacked jurisdiction in
the case. Id. § 2467, pp. 945–46.
528 See supra “Impeachments of President Donald Trump.”
529 167 Cong. Rec. S609 (daily ed. Feb. 9, 2021) (determining that “Donald John Trump is subject to the jurisdiction of
a Court of Impeachment for acts committed while President of the United States, notwithstanding the expiration of his
term in that office”).
530 See HOUSE PRACTICE, supra note 6, at ch. 27 § 2.
531 6 CANNON, supra note 5, § 547, pp. 783–86.
532 HOUSE PRACTICE, supra note 6, at ch. 27 § 4; 3 HINDS, supra note 5, §§ 2504–05, pp. 1008–10.
533 HOUSE PRACTICE, supra note 6, at ch. 27 § 4.
534 See Burden of Persuasion, BLACK’S LAW DICTIONARY (7th ed. 1999) 190 (defining burden of persuasion as “[a]
party’s duty to convince the fact finder to view the facts in a way that favors that party.”); Addington v. Texas, 441
U.S. 418, 423 (1979) (“The function of a standard of proof, as that concept is embodied in the Due Process Clause and
in the realm of factfinding, is to ‘instruct the factfinder concerning the degree of confidence our society thinks he
should have in the correctness of factual conclusions for a particular type of adjudication.’”) (citations omitted).
535 See In re Winship, 397 U.S. 358, 362 (1970) (“Expressions in many opinions of this Court indicate that it has long
been assumed that proof of a criminal charge beyond a reasonable doubt is constitutionally required.”).
536 Concrete Pipe & Prods. v. Constr. Laborers Pension Tr., 508 U.S. 602, 622 (1993).
537 United States v. Calandra, 414 U.S. 338, 343 (1974) (describing the responsibility of the grand jury as determining
“whether there is probable cause believe a crime has been committed”).
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settings, an intermediate standard of “clear and convincing evidence” is used.538 This burden is
somewhere below “reasonable doubt” but higher than “preponderance.”
The Constitution establishes no clear standard of proof to be applied in the impeachment process.
Neither has the House in its decision to impeach, nor the Senate in its decision to convict, chosen
to establish (either by rule or precedent) a particular governing standard. The question has been
repeatedly debated in both chambers, but ultimately individual Members have been free to use
any standard they wish in deciding how to cast their respective votes. In short, when deciding
questions of impeachment and removal, historical practice seems to indicate that Members need
be convinced only to their own satisfaction. Moreover, even if the House or Senate chose to
establish a governing standard of proof, it may be hard for such a rule to be enforced.539
Standard of Proof in the House
In the House, the debate over the standard of proof that should be applied in determining whether
the evidence supports approval of articles of impeachment has generally focused on the lower end
of the standards-of-proof spectrum.540
Those who have argued for the most easily satisfied probable cause standard have often
analogized the House’s decision to impeach to that of a grand jury’s decision to indict.541 Like a
grand jury, the House’s role is to ascertain whether sufficient evidence exists to charge an official
with an impeachable offense, not to determine guilt. That role is reserved to the Senate, which
may apply a different, potentially higher standard of proof. As such, some argue that the House
should apply a similar standard to what is applied by an investigating grand jury—a standard such
as preponderance of the evidence or “probable cause.”542 This position was perhaps most clearly
articulated during the Judiciary Committee’s consideration of the impeachment of Judge Charles
Swayne in 1904 by Representative Powers, who argued the following:
This House has no constitutional power to pass upon the question of the guilt or the
innocent of the respondent. He is not on trial before us. We have no right to take from him
the presumption of innocence which he enjoys under the law. All we have the right to do
is to say whether there has been made out such probable cause of guilt as to entitle the
American people to the right to have the case tried before the Senate of the United States.543

538 See Addington, 441 U.S. at 425 (stating that the “intermediate standard of clear and convincing evidence” lies
“between a preponderance of the evidence and proof beyond a reasonable doubt”).
539 This is both because impeachment proceedings are largely shielded from judicial review, see discussion supra “Are
Impeachment Proceedings Subject to Judicial Review?” but also because absent a Member affirmatively identifying the
standard they applied, it is difficult to determine the reasoning that led to a Member’s vote.
540 It has also been suggested that Members of the House should ask whether there exists “satisfactory evidence
sufficient to support a conviction upon a trial by the Senate…” H. R. REP. NO. 63-1176, at 164; 39 Cong. Rec. 245–46
(Dec. 13, 1904) (statement of Rep. Littlefield) (“I cannot vote for … any charge unless, in my judgment, the Senate of
the United States, upon the record as it stands before us, would be required in honor and in conscience to find the
charge sustained.”). This standard would appear to be dependent on what an individual Member determines the
appropriate standard of proof to be in a Senate trial. While some Members have employed this standard, see id., the
approach has been criticized by some as creating a scenario in which the House was simply “duplicating,” or perhaps
even usurping, the role of the Senate in determining guilt. See JOHN R. LABOVITZ, PRESIDENTIAL IMPEACHMENT 192
(1978).
541 See In re Rep. & Recommendation of June 5, 1972 Grand Jury, 370 F. Supp. 1219, 1230 (D.D.C. 1974) (concluding
that a committee engaged in an impeachment investigation “acts simply as another grand jury”). But as one district
court has stated, “[t]he grand jury analogy is not perfect.” In re Application of the Comm. on the Judiciary, U.S. House
of Representatives, 414 F. Supp. 3d 129, 165 n.32 (D.D.C. 2019), vacated, 142 S. Ct. 46 (2021).
542 39 CONG. REC. 244–46 (Dec. 13, 1904).
543 Id. at 244.
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Those who have argued for the more demanding clear and convincing standard have often
focused on the gravity of the impeachment process and its impact not only on the impeached
official, but in the case of a presidential impeachment, on the entire executive branch. For
example, during the House’s consideration of articles of impeachment against President Clinton,
the President’s counsel asserted that the clear and convincing standard was “commensurate with
the gravity of impeachment.”544 “Lower standards,” it was argued, “are simply not demanding
enough to justify the fateful step of an impeachment trial.”545
The House Judiciary Committee’s report issued in connection with its approval of articles of
impeachment against President Nixon displays the House’s historical reluctance to impose any
formalized burden of proof on Members. In describing the articles, the report noted that the
committee had found “clear and convincing evidence” of the individual impeachable offenses, but
did not explicitly contend that such a finding was required, or that “clear and convincing” should
represent the governing standard of proof in House impeachments.546 The dissenting Members
took a different approach, arguing that they were persuaded that the applicable standard for proof
in House impeachments “must be no less rigorous than proof by ‘clear and convincing
evidence.’”547 Even so, the minority not only acknowledged that the House has never sought to
“fix by rule” an applicable standard of proof, but also explicitly stated that they would not
“advocate such a rule.”548 “The question,” the minority concluded, “is properly left to the
discretion of individual Members.”549
Standard of Proof in the Senate
Much like Members of the House, Senators are not bound by any specific burden of proof in the
trial of an impeached official. Counsel for the impeached official have generally asserted that
individual Senators should adopt the most demanding standard of “beyond a reasonable doubt,”
while the House Managers have generally urged a lower standard.550
The Constitution’s use of words like “try” and “convicted” could be read to suggest an intent that
the Senate adopt a criminal-like standard in impeachment trials.551 Counsel for President Clinton
took this position, at least with respect to presidential impeachments, asserting that the
Constitution’s phrasing “strongly suggests that an impeachment trial is akin to a criminal
proceeding and that the beyond-a-reasonable-doubt standard of criminal proceedings should be
used.”552 House Managers, on the other hand, have generally posited that use of the “beyond
reasonable doubt” standard is inappropriate. They have noted that “an impeachment trial is not a

544 H. COMM. ON THE JUDICIARY, 105TH CONG., SUBMISSION BY COUNSEL FOR PRESIDENT CLINTON TO THE COMMITTEE
ON THE JUDICIARY 20 (Comm. Print 1998).
545 Id.
546 H.R. REP. NO. 93-1305, at 133, 183 (1974).
547 Id. at 377 (minority views of Messrs. Hutchinson, Smith, Sandman, Wiggins, Dennis, Mayne, Lott, Moorhead,
Maraziti an Latta).
548 Id.
549 Id.
550 Compare Trial Memorandum of President William Jefferson Clinton, in 2 CLINTON PROCEEDINGS, supra note 331,
at 938 (arguing for use of reasonable doubt standard) with Reply of the United States House of Representatives to the
Trial Memorandum of President William Jefferson Clinton, in 2 CLINTON PROCEEDINGS, supra note 331, at 1000–01
(arguing that beyond a reasonable doubt is an “inappropriate” standard for impeachment trials).
551 U.S. CONST. art. I, § 2; id. at art II, § 4.
552 2 CLINTON PROCEEDINGS, supra note 331, at 952.
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criminal trial,” nor are the consequences of a conviction—which are limited to removal from
office and possible disqualification from holding future federal office—criminal in nature.553
The Senate’s approach of ensuring that its Members retain the ability to make individualized
decisions on the standard of proof necessary for conviction was perhaps best exhibited during the
impeachment trial of Judge Claiborne. There, counsel for Judge Claiborne submitted a motion to
establish “beyond a reasonable doubt” as the applicable standard of proof in the trial.554 The
House Managers disagreed, arguing that standard was inappropriate, and that setting any
standards would prevent individual members from exercising their own personal judgment.555
Judge Claiborne’s motion was ultimately rejected by the Presiding Officer, who held that the
standard of proof to be applied was left to the discretion of each individual Senator.556
This approach was affirmed in the Senate’s most recent statement on the standard of proof in a
Senate trial. During Judge Porteous’s trial, the Senate trial committee referenced the resolution of
the Claiborne motion, noting that the Senate had “declin[ed] to establish an obligatory
standard.”557 Accordingly, the committee report concluded that “Each Senator may, therefore, use
the standard of proof that he or she feels is appropriate.”558
As such, rather than impose a specific standard of proof on its members, both the House and
Senate have sought to ensure that individual Members remain free to make their own
determinations, guided by their individual conscience and judgment, and their oath to do
“impartial justice.”559
What Are the Applicable Evidentiary Rules and Standards in a
Senate Impeachment Trial?
Like most aspects of the Senate impeachment trial, the body’s approach to evidentiary questions
is unique. The Senate has not bound itself to any specific controlling set of evidentiary rules.
Instead, the admissibility of evidence is primarily based on Senate precedent, with objections first
ruled on by the Presiding Officer, but ultimately settled by a majority vote of the Senate.560
The present Senate Impeachment Rules provide a basic procedural framework for how
evidentiary questions are to be handled. Under the Rules, objections to the admissibility of
evidence “may be made by the parties or their counsel.”561 Those objections are directed to the
Presiding Officer who “may rule on all questions of evidence.”562 That ruling is given effect
unless challenged by an individual Senator. At that point, the Rules provide that the question be
“submitted to the Senate for decision without debate.”563

553 Id. at 758.
554 S. DOC. NO. 99-48, at 105 (1986).
555 Id. at 107.
556 132 CONG. REC. S15,506–07 (daily ed. Oct. 7, 1986).
557 PORTEOUS IMPEACHMENT, supra note 7, at 4.
558 Id.
559 See S. DOC. NO. 99-33, at 7 (1986).
560 SENATE MANUAL, supra note 9, at VII.
561 Id. at XVI.
562 Id. at VII.
563 Id.; S. DOC. NO. 99-33, at 64 (1986) (“The intent of this change is to make it clear that a decision by the Senate to
overrule or sustain a ruling of the Presiding Officer is not to be deliberated in open session.”).
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The Rules set the process by which evidentiary questions are to be decided, but provide only the
most basic guidance on the substantive standards to be applied by either the Presiding Officer or
individual Senators in making such decisions. The Rules state only that the Presiding Officer’s
authority to rule on questions of evidence includes, but is not limited to, “questions of relevancy,
materiality, and redundancy of evidence and incidental questions.”564 Similarly, the Senate
reserves the right to “determine competency, relevancy, and materiality.”565 The Rules therefore
suggest only that evidence should meet basic relevancy requirements.
To the extent there are additional substantive standards for either the Presiding Officer or
individual Senators to apply in making evidentiary determinations, they appear to derive
primarily from Senate precedent. Evaluating and understanding those precedents, however, is
difficult because evidentiary questions submitted to the Senate are generally made with no debate.
As such, the historical record of Senate deliberations on evidentiary questions typically includes
the final disposition of the question and perhaps only limited evidence of the particular reasoning
that led to the Senate’s decision.566
Given the quasi-judicial aspects of the Senate trial, the parties have often used judicial evidentiary
standards, including the Federal Rules of Evidence, to support their motions to either allow or
exclude evidence. The Senate has generally been receptive to this approach and in fact arguably
supported some adherence to judicial rules of evidence.567 More recent trials have made clear that
the Senate is “not bound by the Federal Rules of Evidence, although those rules may provide
some guidance.”568 According to one perspective, the Federal Rules of Evidence, which were
designed to protect jurors from prejudicial evidence and to help them judge evidence, have little if
any place in a Senate impeachment trial, where each individual Senator must weigh all relevant
evidence as he or she deems fit.569 This approach is consistent with Chief Justice Rehnquist’s
ruling during the Clinton impeachment trial that the Senators should not be referred to as “jurors”
because in an impeachment trial “the Senate is not simply a jury. It is a court. . . .”570 Accordingly,
while judicial principles may guide the Senate, the body primarily “determine[s] the admissibility
of evidence by looking to Senate precedents rather than court decisions. A Senate vote is the
ultimate authority for determining the admissibility of evidence.”571
In the end, viewing House and Senate impeachment proceedings through the lens of established
judicial constructs—including rules of procedure, evidence, and standards of proof—should be
undertaken with caution. The impeachment process does not fit into existing judicial molds of
either a criminal or civil proceeding. Indeed, it is not necessarily a judicial proceeding at all. It is
instead an exceptional proceeding defined by its distinctive combination of judicial and

564 SENATE MANUAL, supra note 9, at VII. The minimal standards of relevancy materiality and redundancy were not
added to the Senate rules until 1986. S. DOC. NO. 99-33, at 64.
565 SENATE MANUAL, supra note 9, at XI.
566 Light can be shed on an evidentiary question through arguments made by the parties or through written motions. See
id. at XVI (stating that the Presiding Officer, or any Senator, may require that any motion or objection be “committed
to writing.”).
567 See 3 HINDS, supra note 5, § 2395, at p. 817.
568 REPORT OF THE SENATE IMPEACHMENT TRIAL COMMITTEE ON THE ARTICLES AGAINST JUDGE ALCEE L. HASTINGS, S.
HRG. 101-194, Part 1 at 293 (1989).
569 Id. (“Precise rules of evidence are not needed in an impeachment trial to protect jurors, lay triers of fact, from
doubtful evidence.”); BLACK, supra note 42, at 18 (“Both the House and the Senate ought to hear and consider all
evidence which seems relevant, without regard to technical rules.”).
570 145 CONG. REC. S279 (daily ed. Jan. 15, 1999).
571 S. REP. NO. 101-1, at 111 (1989).
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legislative characteristics that has historically required a unique approach to procedural and
evidentiary questions.572
Are Impeachment Proceedings Subject to Judicial Review?
Impeachment proceedings have been challenged in federal court on a number of occasions.
Perhaps most significantly, the Supreme Court has ruled that a challenge to the Senate’s use of a
trial committee to take evidence posed a nonjusticiable political question.573 In Nixon v. United
States, Judge Walter L. Nixon had been convicted in a criminal trial on two counts of making
false statements before a grand jury and was sent to prison.574 He refused, however, to resign and
continued to receive his salary as a judge while in prison. The House of Representatives adopted
articles of impeachment against the judge and presented the Senate with the articles.575 The
Senate invoked Impeachment Rule XI, a Senate procedural rule which permits a committee to
take evidence and testimony. After the committee completed its proceedings, it presented the full
Senate with a transcript and report. Both sides presented briefs to the full Senate and delivered
arguments, and the Senate then voted to convict and remove him from office.576 The judge then
brought a suit arguing that the use of a committee to take evidence violated the Constitution’s
provision that the Senate “try” all impeachments.577
The Supreme Court wrote that the Constitution grants “the sole Power”578 to try impeachments
“in the Senate and nowhere else”;579 and the word “try” “lacks sufficient precision to afford any
judicially manageable standard of review of the Senate’s actions.”580 This constitutional grant of
sole authority, the Court reasoned, meant that the “Senate alone shall have authority to determine
whether an individual should be acquitted or convicted.”581 In addition, because impeachment
functions as the “only check on the Judicial Branch by the Legislature,”582 the Court noted the
important separation of powers concerns that would be implicated if the “final reviewing
authority with respect to impeachments [was placed] in the hands of the same body that the
impeachment process is meant to regulate.”583 Further, the Court explained that certain prudential
considerations—“the lack of finality and the difficulty of fashioning relief”—weighed against
adjudication of the case.584 Judicial review of impeachments could create considerable political
uncertainty, if, for example, an impeached President sued for judicial review.585
The Court in Nixon was careful to distinguish the situation from Powell v. McCormack, a case
also involving congressional procedure where the Court declined to apply the political question

572 For example, one commentator has asserted that “‘[o]verwhelming preponderance of the evidence’ comes perhaps
as close as can to denoting the desired standard.” BLACK, supra note 42, at 18.
573 Nixon v. United States, 506 U.S. 224, 237–38 (1993).
574 Id. at 226–27.
575 Id.
576 Id. at 227–28.
577 Id. at 228.
578 U.S. CONST. art. I. § 3, cl. 6.
579 Nixon, 506 U.S. at 229.
580 Id.
581 Id. at 231.
582 Id. at 235.
583 Id.
584 Id. at 236.
585 Nixon, 506 U.S. at 236.
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doctrine.586 That case involved a challenge brought by a Member-elect of the House of
Representatives, who had been excluded from his seat pursuant to a House Resolution.587 The
precise issue in Powell was whether the judiciary could review a congressional decision that the
plaintiff was “unqualified” to take his seat.588 That determination had turned, the Court explained,
“on whether the Constitution committed authority to the House to judge its Members’
qualifications, and if so, the extent of that commitment.”589 The Court noted that while Article I,
Section 5, does provide that Congress shall determine the qualifications of its Members,590 Article
I, Section 2, delineates the three requirements for House membership—Representatives must be
at least twenty-five years old, have been U.S. citizens for at least seven years, and inhabit the
states they represent.591 Therefore, the Powell Court concluded, the House’s claim that it
possessed unreviewable authority to determine the qualifications of its Members “was defeated
by . . . this separate provision specifying the only qualifications which might be imposed for
House membership.”592 In other words, finding that the House had unreviewable authority to
decide its Members’ qualifications would violate another provision of the Constitution. The Court
therefore concluded in Powell that whether the three requirements in the Constitution were
satisfied was textually committed to the House, “but the decision as to what these qualifications
consisted of was not.”593 Applying the logic of Powell to the case at hand, the Nixon Court noted
that here, in contrast, leaving the interpretation of the word “try” with the Senate did not violate
any “separate provision” of the Constitution.594
In addition, several other aspects of the impeachment process have been challenged. Judge G.
Thomas Porteous sued seeking to bar counsel for the Impeachment Task Force of the House
Judiciary Committee from using sworn testimony the judge had provided under a grant of
immunity.595 The impeachment proceedings were started after a judicial investigation of Judge
Porteous for alleged corruption on the bench. During that investigation, Judge Porteous testified
under oath to the Special Investigatory Committee under an order granting him immunity from
that information being used against him in a criminal case.596 Before the U.S. District Court for
the District of Columbia, Judge Porteous argued that the use of his immunized testimony during
an impeachment proceeding violated his Fifth Amendment right not to be compelled to serve as a
witness against himself.597 The court rejected his challenge, reasoning that because the use of the
testimony for an impeachment proceeding fell within the legislative sphere, the Speech or Debate

586 Id. at 236–38 (discussing Powell v. McCormack, 395 U.S. 486 (1969)).
587 See Powell, 395 U.S. at 489–95.
588 Nixon, 506 U.S. at 236–237 (discussing Powell).
589 Id. at 237.
590 Id.; See U.S. CONST. art. I. § 5.
591 Nixon, 506 U.S. at 236–37. See U.S. CONST. art. I. § 2.
592 Nixon, 506 U.S. at 236–37.
593 Id. (discussing Powell).
594 Id. Justice White, joined by Justice Blackmun, concurred in the judgment but argued that while the Senate’s use of
an impeachment committee was appropriate in this situation, questions concerning the impeachment power did not
necessarily pose nonjusticiable political questions. Id. at 239–52 (White, J. joined by Blackmun, J. concurring). In
addition, Justice Souter concurred in the judgment and claimed that this case presented a nonjusticiable political
question, but noted that “different and unusual circumstances . . . might justify a more searching review.” Id. at 253
(Souter, J., concurring). If the Senate were to convict on the basis of a coin flip, for example, or “a summary
determination that an officer of the United States was simply ‘a bad guy,’” then judicial review might be appropriate.
Id. at 253–54 (quoting id. at 239 (White, J., concurring)).
595 Porteous v. Baron, 729 F. Supp. 2d 158, 160–61 (D.D.C. 2010).
596 Id. at 160.
597 Id. at 161–62.
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Clause prevented the court from ordering the committee staff members to refrain from using the
testimony.598
Similarly, Judge Alcee L. Hastings sought to prevent the House Judiciary Committee from
obtaining the records of a grand jury inquiry during the committee’s impeachment
investigation.599 Prior to the impeachment proceedings, although ultimately acquitted, Judge
Hastings had been indicted by a federal grand jury for a conspiracy to commit bribery.600 Judge
Hastings’s argument was grounded in the separation of powers: he claimed that permitting
disclosure of grand jury records for an impeachment investigation risked improperly allowing the
executive and judicial branches to participate in the impeachment process—a tool reserved for the
legislature.601 The U.S. Court of Appeals for the Eleventh Circuit, however, rejected this
“absolutist” concept of the separation of powers and held that “a merely generalized assertion of
secrecy in grand jury materials must yield to a demonstrated, specific need for evidence in a
pending impeachment investigation.”602
The U.S. District Court for the District of Columbia initially threw out Judge Hastings’s Senate
impeachment conviction, because the Senate had tried his impeachment before a committee
rather than the full Senate.603 The decision was vacated on appeal and remanded for
reconsideration under Nixon v. United States.604 The district court then dismissed the suit because
it presented a nonjusticiable political question.605
Conclusion
Influenced by both English and colonial practice, the Framers of the Constitution crafted an
Americanized impeachment remedy that ultimately holds government officers accountable for
political offenses, or misdeeds committed by public officials against the state. The meaning of the
Constitution’s impeachment provisions has been worked out over time, informed by the historical
practices of the House and Senate in pursuing impeachment for the misconduct of government
officers. Impeachment is also generally immune from judicial review, meaning that Congress has
substantial discretion in how it structures impeachment proceedings.
The Constitution does not delineate the range of misconduct that qualifies as “high Crimes and
Misdemeanors,” perhaps because the scope of possible offenses by government officers is
impossible to delineate in advance. The history of impeachment in the United States shows that
the remedy has generally applied against government officers for abuses of power, corruption,
and conduct determined incompatible with an individual’s office, but does not extend to strictly
political or policy disagreements.

598 Id. at 165–67.
599 In re Request for Access to Grand Jury Materials, 833 F.2d 1438, 1439–41 (11th Cir. 1987) (upholding an order
granting the House Judiciary Committee access to grand jury materials in an impeachment investigation).
600 See id. at 1439.
601 See id. at 1442.
602 Id. at 1444.
603 Hastings v. United States, 802 F. Supp. 490, 505 (D.D.C. 1992), vacated, 988 F.2d 1280 (D.C. Cir. 1993).
604 Hastings v. United States, 988 F.2d 1280 (table) (D.C. Cir. 1993).
605 Hastings v. United States, 837 F. Supp. 3, 5–6 (D.D.C. 1993).
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Table 1. Impeachments in the United States
House Action and
Date of Final
Name
Office
Summary of Charge
Senate Action
Result
Blount, Wil iam
U.S. Senator from
Impeached July 7, 1797, on
January 11, 1799
Charges dismissed
Tennessee
charges of conspiring to
for want of
assist in the United
jurisdiction; Blount
Kingdom’s attempt to seize
had been expelled
Spanish-control ed
from the U.S.
territories in modern-day
Senate before his
Florida and Louisiana
trial
Pickering, John
Judge, U.S. district
Impeached March 2, 1803,
March 12, 1804
Guilty; removed
court, District of
on charges of intoxication
from office
New Hampshire
on the bench, refusing to
fol ow legal precedents, and
blasphemy
Chase, Samuel
Associate Justice,
Impeached March 12, 1804,
March 1, 1805
Not guilty;
U.S. Supreme
on charges of arbitrary and
acquitted
Court
oppressive conduct of trials
Peck, James H.
Judge, U.S. district
Impeached April 24, 1830,
January 31, 1831
Not guilty;
court, Western
on charges of abuse of the
acquitted
District of
contempt power
Tennessee
Humphreys, West H.
Judge, U.S. district
Impeached May 6, 1862, on
June 26, 1862
Guilty; removed
court, Western
charges of joining the
from office and
District of
Confederate government
disqualified from
Tennessee
and abandoning his position
future office
Johnson, Andrew
President of the
Impeached February 24,
May 16, 1868
Not guilty;
United States
1868, on charges of
(acquittal on art. 11)
acquitted
violating the Tenure of
May 26, 1868
Office Act by removing
(acquittal on arts. 2 and
Secretary of War Edwin
3)
Stanton from office
Delahay, Mark H.
Judge, U.S. district
Impeached February 28,
No Senate action taken
Resigned prior to
court, District of
1873, on charges of
due to Delahay's
trial
Kansas
intoxication on the bench
resignation on
December 12, 1873
Belknap, Wil iam W.
U.S. Secretary of
Impeached March 2, 1876,
August 1, 1876
Not guilty;
War
on charges of criminal
acquitted, resigned
disregard for his office and
before trial
accepting payments in
exchange for making official
appointments
Swayne, Charles
Judge, U.S. district
Impeached December 13,
February 27, 1905
Resigned before
court, Northern
1904, on charges of abuse
trial; acquitted
District of Florida
of contempt power and
other misuses of office
Archbald, Robert W.
Associate judge,
Impeached July 11, 1912, on
January 13, 1913
Guilty; removed
U.S. Commerce
charges of improper
from office and
Court
business relationship with
disqualified from
litigants
future office
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House Action and
Date of Final
Name
Office
Summary of Charge
Senate Action
Result
English, George W.
Judge, U.S. district Impeached April 1, 1926, on
December 13, 1926
Resigned November
court, Eastern
charges of abuse of judicial
4, 1926;
District of Il inois
power
proceedings
dismissed
December 13, 1926
Louderback, Harold
Judge, U.S. district
Impeached February 24,
May 24, 1933
Not guilty;
court, Northern
1933, on charges of
acquitted
District of
favoritism in the
California
appointment of bankruptcy
receivers
Ritter, Halsted L.
Judge, U.S. district
Impeached March 2, 1936,
April 17, 1936
Guilty; removed
court, Southern
on charges of favoritism in
from office
District of Florida
the appointment of
bankruptcy receivers and
practicing law as a sitting
judge
Claiborne, Harry E.
Judge, U.S. district
Impeached July 22, 1986, on
October 9, 1986
Guilty; removed
court, District of
charges of income tax
from office
Nevada
evasion
Hastings, Alcee L.
Judge, U.S. district
Impeached August 3, 1988,
October 20, 1989
Guilty; removed
court, Southern
on charges of perjury and
from office
District of Florida
conspiring to solicit a bribe
Nixon, Walter L.
Judge, U.S. district
Impeached May 10, 1989,
November 3, 1989
Guilty; removed
court, Southern
on charges of perjury
from office
District of
before a federal grand jury
Mississippi
Clinton, Wil iam J.
President of the
Impeached December 19,
February 12, 1999
Not guilty;
United States
1998, on charges of lying
acquitted
under oath to a federal
grand jury and obstruction
of justice
Kent, Samuel B.
Judge, U.S. district
Impeached June 19, 2009,
July 22, 2009
Resigned June 30,
court, Southern
on charges of sexual assault,
2009, before the
District of Texas
obstructing and impeding an
completion of the
official proceeding, and
trial
making false and misleading
statements
Porteous, G. Thomas Jr. Judge, U.S. district
Impeached March 11, 2010,
December 8, 2010
Guilty; removed
court, Eastern
on charges of accepting
from office
District of
bribes and making false
Louisiana
statements under penalty of
perjury
Trump, Donald J.
President of the
Impeached December 18,
Feb. 5, 2020
Not guilty;
United States
2019, on charges of abuse
acquitted
of power and obstruction of
Congress
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Trump, Donald J.
President of the
Impeached January 13,
Feb. 13, 2021
Not guilty;
United States
2021, on charge of
acquitted
incitement of insurrection
Source: Adapted from List of Individuals Impeached by the House of Representatives, U.S. HOUSE OF REPRESENTATIVES,
http://history.house.gov/Institution/Impeachment/Impeachment-List/ (last visited Nov. 1, 2023); Impeachment, Senate
Impeachment Trials, U.S. SENATE,
https://www.senate.gov/artandhistory/history/common/briefing/Senate_Impeachment_Role.htm#impeachment_trials (last
visited Nov. 1, 2023).

Author Information

Jared P. Cole
Todd Garvey
Legislative Attorney
Legislative Attorney

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