Impeachment Law: Breaking Rules, Breaking Office?

The impeachment process is a mechanism to hold government officers accountable for violations of the law and abuses of power. In the United States, impeachment is a two-step process: the House of Representatives impeaches, and the Senate tries the accused. The grounds for impeachment are treason, bribery, or other high crimes and misdemeanors, though the latter phrase is not explicitly defined in the Constitution. Impeachment is a remedial process intended to remove individuals unfit for office, and those impeached remain liable to criminal prosecution.

What constitutes high crimes and misdemeanors?

The US Constitution does not define "high crimes and misdemeanors", but the phrase is understood to cover allegations of misconduct by officials. The meaning of the phrase is informed by the history of congressional impeachments.

"High crimes and misdemeanors" refer to the activity of those in a unique position of political authority who circumvent justice. The phrase covers a broad range of crimes and does not require stringent criteria for determining guilt.

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.

The first impeachment conviction by the US Senate was in 1804, when Judge John Pickering of the US District Court for the District of New Hampshire was removed from office for chronic intoxication. Federal judges have also been impeached and removed for tax evasion, conspiracy to solicit a bribe, and making false statements to a grand jury.

In 1999, White House Counsel Charles Ruff described a "narrow" interpretation of "high crimes and misdemeanors" as requiring "a standard that the framers intentionally set at an extraordinarily high level". This interpretation is to ensure that only the most serious offences, particularly those that subvert the US system of government, would justify overturning a popular election.

Can a former president be prosecuted for crimes they were acquitted of by the Senate?

The question of whether a former president can be indicted and tried for the same offences for which they were impeached by the House of Representatives and acquitted by the Senate remains an uncertain area of constitutional law. The U.S. Constitution does not directly address indictments for either sitting or former presidents, and the Supreme Court has never ruled directly on the issue.

However, the Constitution does allow for courts to try a president after they have been removed from office by the Senate, which leads many to assume that courts must be able to do so for actions by a former president after they have left office. Indeed, the Department of Justice and President Gerald Ford, when he pardoned former President Richard Nixon, have both implicitly supported the indictment of a former president.

The Constitution does not grant immunities to former government officials after they have left office, and most of the arguments for granting such immunities to presidents or any official no longer exist once they leave office. Nevertheless, it is widely understood that presidents must receive some protection regarding suits related to official conduct, and the lines between official and unofficial conduct can be blurry. Therefore, only actions by a president clearly in a personal capacity should be indictable after leaving office, if at all.

The impeachment clause states:

> Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honour, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

This has been interpreted as saying that presidents are not above the law and may be tried for official actions that violate criminal law. Under this interpretation, the clause providing that presidents may be tried after being impeached and convicted is there to make it clear that trying a president who has been removed from office after impeachment and conviction does not constitute double jeopardy. It follows that trying a president who has been impeached and acquitted is similarly not barred by double jeopardy.

In the case of former President Donald Trump, who was impeached and tried in the Senate for his participation in the events of January 6, 2021, his attorneys argued that since his term in office had expired, the appropriate remedy was not a trial in the Senate but prosecution in a criminal case. A number of senators who voted to acquit Trump when he was impeached for the events surrounding January 6 seemed to accept this argument and indicated that they thought a criminal trial was the appropriate venue for assessing Trump's conduct.

Can members of Congress be impeached?

The Constitution gives Congress the authority to impeach and remove the President, Vice President, and all civil officers of the United States. However, the Constitution's structure and historical practice indicate that impeachment likely does not apply to Members of Congress.

Firstly, Article II, Section 3 provides that officers of the United States are commissioned by the President; Members of Congress receive no such commission. Secondly, Members of Congress may be removed from office by other means explicitly provided in the Constitution. Thirdly, the Ineligibility Clause bars any person holding any office under the United States from serving in any house of Congress, indicating that Members of Congress are not considered officers of the United States. Finally, congressional practice indicates that Members of Congress are not officers of the United States.

In 1797, the House of Representatives voted to impeach Senator William Blount, the first impeachment in the history of the young Republic. Two years later, the Senate concluded that Senator Blount was not a civil officer subject to impeachment and voted to dismiss the articles because that body lacked jurisdiction over the matter. This determination has been accepted ever since by the House and the Senate, and since then, the House has never again voted to impeach a Member of Congress.

What is the process of impeachment?

The impeachment process involves three steps, though it may end at any one of the three steps, depending on how the body in question votes.

Firstly, an investigation is carried out by the House of Representatives committees. This involves all relevant committees and is usually overseen by the House Judiciary Committee. The committees with investigatory powers are Foreign Affairs, Intelligence, and Oversight.

The second step is a vote of the House to pass articles of impeachment. Following the investigation, the Judiciary Committee determines through a majority vote if the public official has engaged in an impeachable offence. If so, the committee then sets forth the Articles of Impeachment, which detail the specific allegations of misconduct in the form of a resolution. The committee might find that there are no grounds for impeachment during the investigation and may choose not to generate a resolution. The House votes on the resolution created by the committee. They may vote on the resolution as a whole, or on the specific articles. A simple majority is needed to pass the resolution and move forward with the impeachment process. If a simple majority is reached in the House, they will then report back to the Senate with their findings. If a majority cannot be reached, then there is no impeachment and the process does not move forward to the Senate.

The third step is a trial and vote in the Senate to convict the official. The House sends its resolution(s) to the Senate. This is called the presentation of the articles of impeachment. Once received, the Senate issues a “writ of summons” to the official being impeached, calling them to answer to the articles. The accused official may appear in person or through an attorney on a set date in front of the Senate. If the official does not appear, the proceedings will move forward as if they pled “not guilty”. The official can also contest and say there are no sufficient grounds for impeachment. The Senate sets a date for the trial. If this is a trial for the President, then the Chief Justice of the Supreme Court presides over the trial. For all other impeachment hearings involving civil officers, the hearing is conducted by a Committee Chair or the President of the Senate. During this time, a group of Senators or the full Senate takes evidence, hears testimony, conducts questioning, and cross-examines the witnesses. During the trial, House managers or their counsel and the counsel of the respondent give opening remarks and present ongoing arguments outlining the charges. Evidence is presented and witnesses are examined by both sides. When the trial concludes, the Senate meets in a closed session to deliberate. Following deliberation, the Senate votes on conviction for the articles of impeachment in an open session with yeas and nays recorded on each article individually. A conviction on an article requires a two-thirds majority of those present. If the public official is convicted on at least one article of impeachment, the presiding officer announces the conviction and removal of the official from their office. The Senate can then decide if this person will be barred from public office permanently. If there is less than a two-thirds majority to convict on any of the articles of impeachment, then the accused official is acquitted and remains in office.

Can impeachment occur at the state level?

Yes, impeachment can occur at the state level in the United States if the state or commonwealth has provisions for it under its constitution. State legislatures can impeach state officials, including governors and judicial officers, in every state except Oregon.

The process of impeachment at the state level follows the same bifurcated model used by the federal government. This involves a legislative chamber first voting to impeach an official before an impeachment trial is held to determine whether to convict and remove that official from their position.

However, the procedure for impeachment can vary across different states and territories. While most states follow the federal model of having the lower chamber of the legislature hold the vote to impeach and the upper chamber hold the impeachment trial, some states differ. For example, in Alaska, the upper chamber of the legislature votes to impeach, while the lower chamber acts as the court of impeachment. In Missouri, after the lower chamber votes to impeach, an impeachment trial is held before the Supreme Court of Missouri, except for governors whose impeachments are tried by a panel of seven judges selected by the Missouri State Senate.

Impeachment is a process that originated in England and was later adopted by many American colonial and state governments. It serves as a "check and balance" mechanism, allowing legislatures to bring charges and hold trials against officeholders for misconduct with a penalty of removal.

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