The Constitution provides for the removal of the President from office through the congressional power of impeachment. Under Article 2, Section 4, the President, Vice President “and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.” The House of Representatives has the “sole Power of Impeachment.” After House action, the Senate has the “sole Power to try all Impeachments.” When sitting for that purpose, Senators shall be on oath or affirmation. If the President is on trial, the Chief Justice shall preside. No person shall be convicted without the concurrence of two-thirds of the Senators present. Judgment in cases of impeachment shall not extend further than removal from office “and disqualification to hold and enjoy any Office of honor, 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.”
The Constitutional Convention did not invent the concept of impeachment. Rather, as in so many areas of the Constitution, the Framers borrowed legal principles and practices from England, although shaping the principles to fit their creation of a republic. In crafting the Impeachment Clause, delegates to the Convention drew upon English principles, as well as impeachment practices under the state constitutions. The Framers’ reading of history and their familiarity with the contemporaneous impeachment in England of Warren Hastings guided their work in the area of impeachment. Edmund Burke, the great champion of the American colonists during the Revolutionary War, was the chief instigator of the Hastings impeachment. He described the engine of impeachment as the “great guardian of the purity of the constitution.”
Delegates to the Constitutional Convention had learned from history that it was necessary to hold the President and other high-ranking executive officials accountable for serious misconduct. All of the major plans introduced at the Convention made provision for an impeachment power. The New Jersey Plan would have left removal of the executive to Congress, “on application by a majority of the Executives of the several States.” The Virginia Plan called for removal on conviction after impeachment by the house for “malpractice of neglect of duty,” with trial by judiciary. Alexander Hamilton’s plan was influential. It called for removal of “all officers of the United States” on impeachment for “mal and corrupt conduct; and upon conviction to be removed from office & disqualified for [sic] holding any place of trust or profit,” and provided that impeachments should be tried by a court.
James Madison’s leadership, prominent throughout the summer of 1787, was particularly sharp in the debates on the impeachment power. Madison, and others, were more focused on the issue of removal than on the punishment that might be meted out to someone convicted of impeachable offenses. On June 2, 1787, Madison explained that it was “indispensable” to create a mechanism to protect the nation against the “incapacity, negligence or perfidy of the chief Magistrate.” Madison thought that the length of the President’s term was not a sufficient protection. “He might,” Madison said, “pervert his administration into a scheme of peculation or perversion. He might betray his trust to foreign powers.” Madison expressed concern that a single magistrate might be susceptible to bribery or other means of corruption, which, he declared, “might be fatal to the Republic.”
Various delegates shared Madison’s concerns. Elbridge Gerry “urged the necessity of impeachments. A good magistrate will not fear them. A bad one ought to be kept in fear of them.” In a reference to the English conception that the King “could do no wrong,” Gerry spoke of Republican values and said that he “hoped the maxim would never be adopted here that the chief Magistrate could do [no] wrong.” Edmund Randolph agreed that an impeachment power was necessary as a means of punishment.
But other delegates expressed worry about an impeachment provision. Gouverneur Morris, for example, was concerned that the legislature would reduce the executive to a state of dependency, and render him subordinate to the legislature. As a consequence, “he will be no check on the Legislature,” and cease to be “a firm guardian of the people and of the public interest.” Charles Pinckney “did not see the necessity of impeachments.” He was certain that the legislature would hold that “rod over the Executive and by that means effectively destroy his independence.”
As the debate moved toward conclusion, Morris changed his mind about the need for impeachment. After listening to the discussion, he was persuaded that the President “might be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay without being able to guard agst. it by displacing him.” Thus the President, Morris believed, should be vulnerable to impeachment for “treachery” as well as corruption and incapacity.
The Framers supported impeachment for treason and bribery. Bribery was clear and well understood. Treason against the United States, Article 3, Section 3 set forth, “shall consist only in levying war against them, or in adhering to their Enemies, giving them Aid and comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” But George Mason thought these grounds were insufficient. Treason might not reach many great and dangerous offences.” “Hastings,” he observed, was not guilty of Treason. He sought to add impeachment for “maladministration.” Madison objected: “So vague a term will be equivalent to tenure during pleasure of the Senate.” Mason agreed and withdrew his proposal, and substituted “other high crimes and misdemeanors” against the United States. The Convention’s history revealed that the Framers were familiar with the concept of high crimes and misdemeanors as utilize in English practice. The concern among delegates was the abuse of official authority, rather than concern about personal misbehavior of the office holder. They did not conceive of high crimes and misdemeanors as indictable crimes but rather those offenses that subverted the Constitution and rocked the foundation of the nation.
Again and again, delegates to the Constitutional Convention, as well as those serving their state ratifying conventions, expressed their concurrence in the Madisonian-Hamiltonian conception of the basis for impeachment—breach of trust and abuse of office. Charles Pinckney in South Carolina declared that impeachment would lie against those who betrayed their “public trust.” Edmund Randolph in Virginia talked about impeachment for misbehavior. James Iredell, a future member of the U.S. Supreme Court, told his colleagues in North Carolina that the President could be impeached for giving false information to the Senate, and for abusing his foreign affairs powers. Usurpation of power, abuse of power, failing to execute the laws were among the prominent offenses pricked out by the Framers that warranted impeachment.
For the sake of clarification, it should be emphasized that impeachment, in America, would be implemented for political high crimes and misdemeanors, not criminal acts. While some acts might, indeed, merit criminal sanctions, those would be carried out in the criminal justice system. Thus the Convention proceeded on the assumption that there were two realms—one for great political offenses, assessed by the impeachment power, and the other for criminal offenses. James Wilson, a leading delegate from James Wilson, explained in his lectures on the Constitution, that impeachments are “confined to political characters, to political crimes and misdemeanors, and to political punishments.” In his explanation that impeachment may lie for “malversation,” he meant “corrupt behavior in an office of trust.”
The Framers, then, were in agreement about the necessity of impeachment as a means of bringing an errant President to heel. Eighty-year old Benjamin Franklin told his colleagues in the Convention that impeachment was necessary, for without it, there would be no choice “ but recourse to assassination.” There remained, however, the question of the repository of the authority to impeach the President. The Framers were divided on this question.
The Convention considered giving the Supreme Court the jurisdiction over impeachments and decided against it. On September 8, just 10 days before the Convention adjourned, Madison, who was an advocate of vesting the trial authority in the Supreme Court, objected to the trial of the President by the Senate, “especially as he was to be impeached” by the House. In those circumstances, Madison stated, the President would be made “improperly dependent” on Congress. Morris thought that “no other tribunal than the Senate could be trusted.” Justices of the Supreme Court “were too few in number and might be warped or corrupted.” He thought it unlikely that members of the Senate “would say untruly on their oaths that the President was guilty of crimes or facts, especially as unlikely four years he can be turned out.” The various concerns about vesting the trial power in the Supreme Court, captured in Roger Sherman’s warning that it would be “improper” to assign the Court that role “because the judges would be appointed” by the President, combined with the perceived virtues of granting that role to the Senate, led the Framers to place the trial authority in the upper chamber of Congress.
In the course of American history, four Presidents—Andrew Johnson, Richard Nixon, Bill Clinton, and Donald Trump —have faced impeachment proceedings. Of the four, Johnson, Clinton, and Trump were impeached by the House of Representatives. All three Presidents were acquitted in the Senate trial. Nixon, it is to be recalled, was not impeached. The House Judiciary Committee had voted Articles of Impeachment against him, but he was spared impeachment and, very likely, conviction by the Senate and thus removal from office, by virtue of his resignation of the Presidency.
President Johnson was impeached by the House of Representatives in 1868, principally because he had violated the Tenure of Office Act. In 1867, Congress enacted the statute, which required that officers appointed with the advice and consent of the Senate would remain in place until their successors were similarly appointed. If the Senate was in recess and unable to act on the replacement, the President could suspend, but not remove, the official. Johnson believed the law encroached on his authority and he decided to challenge it in court. But when he unilaterally removed Secretary of War, Edwin Stanton, the House initiated impeachment proceedings. The House impeached Johnson but the Senate failed to muster the two-thirds majority for his removal. Each of the three articles of impeachment fell short by a single vote.
In August of 1867, President Johnson suspended Stanton from office. In January of 1868, the Senate refused to concur in the suspension. The Tenure of Office Act included a criminal penalty for violations, which it declared to be “high misdemeanors.”
On the same day that Johnson suspended Stanton, the Senate passed a resolution stating that “under the Constitution and laws . . . the President has no power to remove the Secretary of War and to designate any other officer to perform the duties of that office ad interim.” Two days later, the House impeached Johnson by a vote of 126 to 47.
The Senate trial focused on the removal of Stanton and the interim appointment of Thomas. President Johnson’s counsel offered several arguments in his defense. Johnson had not violated the act because there was only an attempt to remove Stanton, not an actual removal. The act was unconstitutional. If the President believed the statute encroached on his authority to remove cabinet officials, he had the right to challenge the statute. If he was mistaken about the constitutionality of the statute, he should not be impeached for his good faith error in interpretation. Lastly, there was no injury inflicted on the public. At most, his offense was minor in nature, and did not rise to the level of an impeachable offense. The Senate ultimately voted on three articles of impeachment, advanced by the House. Article 11 charged Johnson with falsely declaring that the 39th Congress was not authorized to execute legislative power for the entire nation, since it was only a Congress that was representative of some of the states. His false characterization was said to have scandalized Congress and caused its reputation to fall into a state of disrepute. The other two article of impeachment involved the appointment of Thomas. Each of the articles of impeachment failed by one vote to satisfy the to-thirds threshold.
On December 19, 1998, the House adopted two articles of impeachment against President Clinton, one for perjury and the other for obstruction of justice. The impeachment stemmed from an inquiry examining his statements regarding an affair with White House intern, Monica Lewinsky, and how they might have related to a previous case brought by Paula Jones. Jones had sued President Clinton for sexual harassment while he served as Governor of Arkansas. The Court, in 1997, in Clinton v. Jones, had upheld her right to bring a civil suit against President Clinton, rejecting his claims of immunity. On February 12, 1999, the Senate acquitted Clinton of both articles of impeachment. On the issue of perjury, 45 Senators voted guilty and 55 voted not guilty. On the obstruction of justice issue, the vote was 50-50.