Impeachment: Law-Abiding Or Not?

Impeachment is a process by which a legislative body or tribunal initiates charges against a public official for misconduct. In the United States, impeachment is a check on the Executive and Judicial Branches, holding government officers accountable for violations of the law and abuses of power. While the Constitution limits grounds for impeachment to treason, bribery, or other high crimes and misdemeanors, the scope of high crimes and misdemeanors is not formally defined, leaving it open to interpretation and debate. This raises the question: can someone be impeached without breaking the law? The answer is yes, as impeachment is a political process involving both political and legal elements, and the determination of impeachable conduct is influenced by competing political interests and changing institutional relationships.

Can someone be impeached without breaking the law?

In the United States, impeachment is the process of bringing charges against a government official for wrongdoing. It is a unique process involving both political and legal elements. While impeachment is typically associated with criminal behaviour, it can also be used to address serious offences against the system of government that may not be indictable criminal offences.

The Constitution gives Congress the power to impeach federal officials. An official can be impeached for treason, bribery, and "other high crimes and misdemeanors". The "high crimes and misdemeanors" referred to in the Constitution are not strictly defined but include offences against the government or the constitution, grave abuses of power, violations of the public trust, or other political crimes.

Impeachment may occur at the federal level, state level, or local level of government. At the federal level, the impeachment process typically involves three steps: an impeachment inquiry, impeachment by the House of Representatives, and a trial by the United States Senate. The House of Representatives brings articles of impeachment (charges) against an official, and if they are adopted by a simple majority vote, the official has been impeached. The Senate then holds an impeachment trial, and if the official is found guilty, they are removed from office and may be barred from holding future elected office.

While impeachment usually involves criminal behaviour, there have been cases where officials were impeached for conduct that may not have been strictly illegal but was deemed to warrant removal from office. For example, in 2018, the entire Supreme Court of Appeals of West Virginia was impeached, and in 1995, the former Minister of Justice in Denmark, Erik Ninn-Hansen, was impeached and found guilty of violating the Ministerial Responsibility Act, resulting in a suspended sentence.

In summary, while most impeachments are based on criminal behaviour, the broad scope of "high crimes and misdemeanors" allows for the impeachment of officials who have engaged in serious misconduct or abuses of power that may not necessarily violate a specific law.

What constitutes high crimes and misdemeanors?

The US Constitution does not define "high crimes and misdemeanors", but the phrase has been used in English law since the 14th century. "High crimes" are serious crimes committed by those with some office or rank. The phrase "high crimes and misdemeanors" is used to describe impeachment proceedings and covers a wide range of crimes.

In the US, impeachment is a process by which a legislature may bring charges against an officeholder for misconduct, with the penalty of removal. The US Constitution limits the grounds of impeachment to "treason, bribery, or other high crimes and misdemeanors". The Constitution gives Congress the power to impeach and remove "The President, Vice President, and all civil Officers of the United States" upon a determination that such officers have engaged in any of these acts.

The process of impeaching someone in the House of Representatives and convicting them in the Senate is complex and acts as a balance against efforts to remove people from office for minor reasons. The definition of "high crimes and misdemeanors" is open to interpretation by the House of Representatives and the Senate.

Impeachment has been used to remove government officers who abuse the power of their office, conduct themselves in a manner incompatible with the purpose and function of their office, or misuse the office for improper or personal gain.

Can a former official be impeached?

The impeachment of former officials is a complex and disputed topic. While some scholars argue that impeachment is only meant for current officeholders, others contend that the Constitution does not explicitly prohibit the impeachment of former officials.

The Constitution grants the House of Representatives the "sole Power of Impeachment" and the Senate the "sole Power to try all Impeachments". The process typically involves two stages: impeachment by the House, followed by a trial in the Senate. The text of the Constitution does not explicitly state who is subject to the jurisdiction of the House's impeachment power, nor does it explicitly prohibit the impeachment of former officials.

Some, like former Judge Michael Luttig, argue that the Senate's power is limited to convicting or not convicting an incumbent president. They believe that the purpose of impeachment is to remove an officeholder from their position to prevent further harm to the nation. However, others, like Princeton University professor Keith Whittington, counter that the "power of impeachment" is borrowed from British parliamentary practice, which includes the impeachment of former officials.

The question of whether a former official can be impeached is not settled, and it is a matter of interpretation of the Constitution. The Supreme Court has not provided a clear answer, and the Senate, as the constitutionally designated court of impeachment, has the final say over constitutional questions regarding the impeachment power.

In practice, the House has frequently chosen to drop impeachment efforts when an official resigns. However, there have been instances where the House continued with impeachment proceedings even after an official's resignation. For example, in 1876, William W. Belknap was impeached by the House hours after resigning as Secretary of War. The Senate held that it had jurisdiction to try Belknap, but ultimately acquitted him.

In summary, while there is disagreement among legal scholars and politicians, the impeachment of former officials is a complex issue that involves interpreting the Constitution. The Supreme Court has not provided a definitive answer, leaving the decision to the Senate, which has the power to try all impeachments.

What is the process of impeachment?

The process of impeachment is a way of addressing allegations of misconduct against a public official. It involves both political and legal elements.

In the United States, the House of Representatives has the "sole Power of Impeachment" and the Senate has the "sole Power to try all Impeachments". This means that the House of Representatives brings the charges, and the Senate holds the trial.

The process can be broken down into three steps:

• An investigation is carried out by the House of Representatives committees. This is usually overseen by the House Judiciary Committee.
• The House of Representatives then votes on whether to pass articles of impeachment. This requires a simple majority. If the vote passes, the official has been impeached.
• The Senate holds an impeachment trial, which may result in the removal of the official from office. This requires a two-thirds majority.

Impeachment does not always result in removal from office. It is possible for an official to be impeached but acquitted in the Senate trial, in which case they may continue to serve in office.

In addition to the federal level, impeachment can also occur at the state and local levels of government, as well as in tribal governments.

Who can be impeached?

In the United States, impeachment is a process that can be applied to "The President, Vice President and all civil Officers of the United States". Federal judges are also subject to impeachment.

The Constitution does not articulate who qualifies as a "civil officer of the United States". However, it is generally accepted that any presidentially appointed "principal officer", including a head of an agency such as a Secretary, Administrator, or Commissioner, is a "civil officer of the United States" subject to impeachment.

At the opposite end of the spectrum, lesser functionaries, such as federal civil service employees, do not exercise "significant authority", and are not appointed by the president or an agency head. These employees do not appear to be subject to impeachment, though that may be a matter of allocation of House floor debate time by the Speaker, rather than a matter of law.

The Senate has concluded that members of Congress (representatives and senators) are not "civil officers" for the purposes of impeachment.

In addition to federal impeachment, impeachment may also occur at the state level if the state or commonwealth has provisions for it under its constitution. Impeachment might also occur with tribal governments as well as at the local level of government.

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