What body has the power to convict the president of charges brought against him in the impeachment

1.

U.S. Const. art. II, § 4. While this report focuses on the constitutional considerations relevant to impeachment, there are of course various other important 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. 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.

2.

See discussion infra "History of Impeachment in Congress."

3.

See id. art. I, § 2, cl. 5.

4.

U.S. Const. art. I, § 3, cls. 6, 7.

5.

See 3 Asher C. Hinds, Hinds' Precedents of the House of Representatives of the United States § 2397, pp. 818–20 [1907], //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. 706, 708 [1936], //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 note 5, at§ 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 infraTable 1. Wm. Holmes Brown et al., House Practice: A Guide to the Rules, Precedents, and Procedures of the House ch. 27 § 1 [2011], //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].

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], //www.govinfo.gov/content/pkg/SMAN-113/pdf/SMAN-113.pdf.

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]; Joseph Story, II Commentaries on the Constitution of the United States § 762 [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] [Clinton Rossiter ed., 1961]; see Letter from James Madison to Spencer Roane [Sept. 2, 1819], in 8 Writings of James Madison 450 [Gaillard Hunt ed. 1908]. 

15.

Story, supra note 13, at § 797; ["[N]o previous statute is necessary to authorize an impeachment for any official misconduct."]; id. § 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."]; see also Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 104–05 [2000].

16.

Story, supra note 13, at § 762 ["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. § 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 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."].

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], //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,at59–66; 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; Story, supra note 13, at § 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."].

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 Hoffer & Hull, supra note 19, 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.

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]; id. 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 [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].

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] [Clinton Rossiter ed., 1961].

49.

See The Federalist No. 81 [Alexander Hamilton] [Clinton Rossiter ed., 1961].

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] [Clinton Rossiter ed., 1961].

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 [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.

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.

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 [Alexander Hamilton] [Clinton Rossiter ed., 1961]; Gerhardt, supra note 15, at 104.

71.

5 Elliot's Debates, supra note 59, at 341.

72.

The Federalist No. 65 [Alexander Hamilton] [Clinton Rossiter ed., 1961].

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 note15, at 19 [quoting 4 Elliot's Debates, supra note 59, at 48 [statement of General Johnston]].

80.

See Gerhardt, supra note 15, at 19.

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.

Story, supra note 13, at § 744.

89.

Id. at § 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].

93.

U.S. Const. art. I, § 2, cl. 5.

94.

See 3 Hinds, supra note 5, at § 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, atch. 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], //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]. Cf. Press Release, Nancy Pelosi, Speaker of the House, Pelosi Remarks Announcing Impeachment Inquiry [Sept. 24, 2019] //www.speaker.gov/newsroom/92419-0 [announcing that various committee investigations of President Trump constitute an "official impeachment inquiry"]; 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"].

102.

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.

103.

House Practice, supra note 6, at ch. 27§§ 8–9.

104.

Gerhardt, supra note 15, at 33.

105.

3 Hinds, supra note 5, at § 2301, pp. 651–52; id. at § 2370, pp. 785–86, 788–89; id. at § 2390, pp. 809–10, 812; id. at § 2420, pp. 862–63, 869; id. at § 2449, pp. 909–10, 915.

106.

See Porteous Impeachment, supra note 7, at 1 n.1.

107.

House Practice, supra note 6, at ch. 27 § 4. For examples of impeachments that fit into these categories, see Cong. Globe, 40thCong., 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].

108.

Gerhardt, supra note 15, at 48–49.

109.

Constitutional Grounds, supra note 18, at 17.

110.

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].

111.

See generally Michael J. Gerhardt, Forgotten Presidents: Their Untold Constitutional Legacy 41–47 [2013].

112.

Oliver P. Chitwood, John Tyler: Champion of the Old South 299–300 [1939].

113.

Gerhardt, Forgotten Presidents, supra note 111, at 57.

114.

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."].

115.

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].

116.

See Nixon Impeachment, supra note 115, at 6–11.

117.

See discussion infra "Effort to Impeach President Richard Nixon."

118.

See Gerhardt, supra note 15, at 106.

119.

See Black, supra note 42, at 33–36.

120.

U.S. Const. art. I, § 3, cl. 6.

121.

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].

122.

Id. at 229–30.

123.

Id. at 230.

124.

Id.

125.

See infra Table 1. Impeachments in the United States.

126.

See id.

127.

U.S. Const. art. II, § 4.

128.

See David P. Currie, The Constitution in Congress: The Federalist Period 1789–1801 275–281 [1997].

129.

8 Annals of Cong. 2318–20 [1799].

130.

See discussion infra "Early Historical Practices [1789–1860]."

131.

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, seeWhittington, supra note 13, at 20–71.

132.

U.S. Const. art. I, § 3, cl. 6.

133.

See Black, supra note 42, at 9–10.

134.

See S. Doc. No. 99-33, at 61 [1986].

135.

See Senate Adopts First Impeachment Rules, U.S. Senate, //www.senate.gov/artandhistory/history/minute/Senate_Adopts_First_Impeachment_Rules.htm [last visited Oct. 25, 2019].

136.

U.S. Const. art. I, § 3, cl. 7.

137.

See 6 Cannon, supra note 5, at § 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].

138.

Emily F.V. Tassel & Paul Finkelman, Impeachable Offenses: A Documentary History from 1787 to the Present 114–16 [1999].

139.

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."].

140.

U.S. Const. art. I, § 3, cl. 7.

141.

See id.art. I, § 3, cl. 7.

142.

James Wilson, Lectures on Law, supra note 85, at425–26.

143.

See The Federalist No. 65 [Alexander Hamilton] [Clinton Rossiter ed., 1961].

144.

Id.

145.

8 Annals of Cong. 2251 [1798].

146.

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].

147.

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].

148.

The Impeachment Trial of Alcee L. Hastings [1989] U.S. District Judge, Florida, U.S. Senate, //www.senate.gov/artandhistory/history/common/briefing/Impeachment_Hastings.htm [last visited Oct. 25, 2019].

149.

135 Cong. Rec. S13, 783–88 [daily ed. Oct. 20, 1989].

150.

See Waggoner v. Hastings, 816 F. Supp. 716 [S.D. Fla. 1993].

151.

U.S. Const. art. II, § 4.

152.

The Federalist No. 37 [James Madison] [Clinton Rossiter ed., 1961]; Letter from James Madison to Spencer Roane, supra note 14, at 450. 

153.

Keith E. Whittington, A Formidable Weapon of Faction? The Law and Politics of Impeachment 13 [2019] [Law and Social Inquiry] [Forthcoming]; Story, supra note 13, at § 762 ["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. § 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 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."].

154.

Whittington, Formidable Weapon, supra note 153, at 17–18 [quoting Whittington, supra note 13].

155.

Id.

156.

1 Stat. 381, 384 § 5 [June 5, 1794] [codified as amended at 18 U.S.C. § 960].

157.

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 128, at 275–281.

158.

Tassel & Finkelman, supra note 138, at 87–88.

159.

Gerhardt, supra note 15, at 48; see U.S. Const. art. I, § 5.

160.

Currie, supra note 128, at 276.

161.

Id. [citing U.S. Const. art. I, §§ 3–9].

162.

Tassel & Finkelman, supra note 138, at 87–88; see generally Melton, supra note 157, at 104–89.

163.

Currie, supra note 128, at277.

164.

Id. at 279.

165.

Id.

166.

8 Annals of Cong. 2317–18 [1799].

167.

Hoffer & Hull, supra note 19, at 155, 161. 9 Annals of Cong. 2648–49 [1799]. Currie, supra note 128, 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] ["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."]

168.

Hoffer & Hull, supra note 19, at 181.

169.

Hoffer & Hull, supra note 19, at206.

170.

See 12 Annals of Cong. 642 [1803]; 13 Annals of Cong. 380 [1803].

171.

See 13 Annals of Cong. 368 [1804]; Hoffer & Hull, supra note 19, at 208, 216–17.

172.

Bushnell, supra note 139, at 45–46.

173.

Hoffer & Hull, supra note 19, at 211–13.

174.

Bushnell, supra note 139, 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.

175.

Id. at 46–47.

176.

13 Annals of Cong. 367 [1804]; Bushnell, supra note 139, at 53–54.

177.

Bushnell, supra note 139, at 53–54.

178.

Tassel & Finkelman, supra note 138, 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].

179.

Hoffer & Hull, supra note 19, at 228–38.

180.

Bushnell, supra note 139, at 62–63.

181.

See Chafetz, supra note 20, at 108.

182.

Impeachment, Selected Materials, supra note 167, at 133–35.

183.

Bushnell, supra note 139, at 63–73.

184.

Id. at 67–84; see Gerhardt, supra note 15, at 181.

185.

Bushnell, supra note 139, at 84.

186.

14 Annals of Cong. 664–69 [1804]; Tassel & Finkelman, supra note 138, at 103.

187.

Tassel & Finkelman, supra note 138, at 103.

188.

Bushnell, supra note 139, at 82–87.

189.

See Nixon Impeachment, supra note 115, at362–72 [minority views]; 3 Deschler, supra note 95, at Ch. 14 §§ 3.8–3.11, pp. 1996–2003.

190.

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 131, at 114;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. SeeRehnquist, supra note 131, at 125; Gene Healy, Indispensable Remedy: The Broad Scope of the Constitution's Impeachment Power, Cato Inst. 21–22 [2018], //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.

191.

See Gerhardt, Perspective, supra note 34, at 921.

192.

Bushnell, supra note 139, at 91.

193.

Tassel & Finkelman, supra note 138, at 108–09; Bushnell, supra note 139, at 92.

194.

Tassel & Finkelman, supra note 138, at 108–09.

195.

Id.

196.

Id.

197.

6 Cong. Deb. 818–19 [1830].

198.

Bushnell, supra note 139, at 91–113.

199.

7 Cong. Deb. 45 [1831].

200.

See Act of Mar. 2, 1831, ch. 98, 4 Stat. 487.

201.

Tassel & Finkelman, supra note 138, at 114–16.

202.

3 Hinds, supra note 5, at §§ 2385–86, pp. 805–07; see also id. § 2390, pp. 810–11; id. § 2396–97, pp. 817–20.

203.

Bushnell, supra note 139, at 115.

204.

Id.

205.

See Rehnquist, supra note 131, at185–98.

206.

Bushnell, supra note 139, at 128.

207.

Id.

208.

Tassel & Finkelman, supra note 138, at 222.

209.

Bushnell, supra note 139, at 128.

210.

SeeWhittington, supra note 13, at 113–57; see generally Michael Les Benedict, The Impeachment and Trial of Andrew Johnson 1–25 [1973].

211.

Tassel & Finkelman, supra note 138, at 222–23.

212.

Tenure of Office Act, 14 Stat. 430 [1867]; Tassel & Finkelman, supra note 138, at 224.

213.

Tenure of Office Act, 14 Stat. 430 [1867]; see Michael J. Gerhardt, Constitutional Arrogance, 164 U. Pa. L. Rev. 1649, 1663 [2016].

214.

Rehnquist, supra note 131, at 228.

215.

Les Benedict,supra note 210, at 92–125.

216.

Rehnquist, supra note 131, at 230.

217.

Cong. Globe, 40thCong., 2nd Sess. 1400 [1868].

218.

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].

219.

Tassel & Finkelman, supra note 138, at 226.

220.

Id. at 235.

221.

Rehnquist, supra note 131, at 219–20.

222.

Id. at 221.

223.

See generally Akhil Reed Amar, America's Unwritten Constitution [2012].

224.

Rehnquist, supra note 131, at 221.

225.

Id. at 230–31.

226.

3 Hinds, supra note 5, at § 2440 [vote on article 11]; id. at § 2443, pp. 897–901 [vote on articles 2 and 3]; see Rehnquist, supra note 131, at 234–35.

227.

Tassel & Finkelman, supra note 138, at 221; see generally Hans L. Trefousse, Impeachment of a President: Andrew Johnson, the Blacks, and Reconstruction 169 [1975].

228.

Rehnquist, supra note 131, at 240–46.

229.

See generally Whittington, supra note 13, at 115; Trefousse, supra note227, at 180–90.

230.

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"].

231.

Rehnquist, supra note 131, at 247.

232.

See Whittington, supra note 13, at 132–40.

233.

3 Hinds, supra note 5, at §§ 2504–05, pp. 1008–10; House Practice, supra note 6, at ch. 27 §4.

234.

3 Hinds, supra note 5, at §§ 2504–05, pp. 1008–10.

235.

Tassel & Finkelman, supra note 138, at 119.

236.

See generally Eric Foner, Reconstruction: America's Unfinished Revolution, 1863–77 [1988].

237.

3 Hinds, supra note 5, at §§ 2506–08, pp. 1011–14.

238.

Id.

239.

Id. at § 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].

240.

3 Hinds, supra note 5, at §§ 2444–46, pp. 902–06; see Constitutional Groundssupra note 18, at 20.

241.

Bushnell, supra note 139, at 165.

242.

3 Hinds, supra note 5, at §§ 2446–68, pp. 906–47.

243.

Id. at §§ 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. at § 2467, pp. 945–46.

244.

Bushnell, supra note 139, at 186.

245.

See U.S. Const. art. II, § 4.

246.

Bushnell, supra note 139, at 170.

247.

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 138, at 123–24.

248.

Bushnell, supra note 139, at 191.

249.

39 Cong. Rec. 248 [1904].

250.

Bushnell, supra note 139, at 191–92.

251.

Id. at 191–93.

252.

Tassel & Finkelman, supra note 138, at 123–25.

253.

39 Cong. Rec. 3467–72 [1905].

254.

Tassel & Finkelman, supra note 138, at 132.

255.

48 Cong. Rec. 8904–34 [1912].

256.

Tassel & Finkelman, supra note 138, at 133.

257.

Id. at 134.

258.

49 Cong. Rec. 1438–48 [1913].

259.

Bushnell, supra note 139, at 221.

260.

See Hasia Diner, The Teapot Dome Scandal, 1922–24, in 1CONGRESS INVESTIGATES: A CRITICAL AND DOCUMENTARY HISTORY 460–74 [Roger A. Bruns, David L. Hostetter, Raymond W. Smock eds., 2011].

261.

Id. at 461.

262.

Id.

263.

Id. at 463–74.

264.

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].

265.

6 Cannon, supra note 5, at §§ 536–38, pp. 769–73.

266.

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].

267.

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].

268.

See The Teapot Dome Scandal, supra note 260, at 471.

269.

67 Cong. Rec. 6705–55 [1926]; 6 Cannon, supra note 5, at §§ 544–45, pp. 778–81.

270.

Tassel & Finkelman, supra note 138, at 144–46.

271.

76 Cong. Rec. 4913–26 [1933]; 6 Cannon, supra note 5, at §§ 513–20, pp. 709–30.

272.

Bushnell, supra note 139, at 245.

273.

Id. at 246.

274.

Id. at 247.

275.

77 Cong. Rec. 4064–88 [1933].

276.

80 Cong. Rec. 3066–92 [1936]; Tassel & Finkelman, supra note 138, at 157.

277.

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 138, at 158–59.

278.

Ritter v. United States, 84 Ct. Cl. 293, 296 [1936], cert. denied, 300 U.S. 668 [1937].

279.

Bushnell, supra note 139, at 286–87.

280.

Ritter, 84 Ct. Cl. at 298.

281.

For a more detailed account of the Watergate Scandal, see Stanley I. Kutler, The Wars of Watergate [1990].

282.

See Carroll Kilpatrick, Nixon Resigns, Wash. Post [Aug. 9, 1974], //www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/080974-3.htm.

283.

Kutler, supra note 281, at 187–211.

284.

Id. at 323–49; Tassel & Finkelman, supra note 138, at 255–56.

285.

Tassel & Finkelman, supra note 138, at 255–56; Kutler, supra note 281, at 111–16, 351–72.

286.

Tassel & Finkelman, supra note 138, at 256–57.

287.

Jerry Zeifman, Without Honor: Crimes of Camelot and the Impeachment of President Nixon 59 [1995].

288.

See Carroll Kilpatrick, Nixon Forces Firing of Cox; Richardson, Ruckelshaus Quit, Wash. Post [Oct. 21, 1973], //www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/102173-2.htm.

289.

Tassel & Finkelman, supra note 138, at 258–59.

290.

United States v. Nixon, 418 U.S. 683, 686–87 [1974].

291.

Id. at 713–14.

292.

Nixon Impeachment, supra note 115, at 6–11.

293.

Id. at 1–2.

294.

Id. at 3–4.

295.

Id. at 4.

296.

Id. at 217–19.

297.

Id. at 219.

298.

Id. at 220–23.

299.

Id. at 221.

300.

Id. at 223.

301.

Kilpatrick, Nixon Resigns, supra note 282.

302.

Michael J. Gerhardt, The Lessons of Impeachment History, 67 Geo. Wash. L. Rev. 603, 604 [1999].

303.

Compare Clinton Impeachment, supra note 92, at 110–18 [majority views], with id. at 204–07 [minority views].

304.

See id. at 108.

305.

Id. at 205.

306.

Id. at 207.

307.

See generally Ken Gormley, The Death of American Virtue: Clinton vs. Starr 33–114 [2010].

308.

Tassel & Finkelman, supra note 138, at 267; see generally Whitewater: Timeline, Wash. Post [1998], //www.washingtonpost.com/wp-srv/politics/special/whitewater/timeline.htm [last visited Oct. 25, 2019].

309.

See generally Gormley, supra note 307, 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.

310.

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].

311.

Tassel & Finkelman, supra note 138, at 268.

312.

The Starr Report: Introduction, Wash. Post [1998], //www.washingtonpost.com/wp-srv/politics/special/clinton/icreport/5intro.htm [last visited Oct. 25, 2019].

313.

See Gormley, supra note 307, at 304–06.

314.

Id.

315.

Tassel & Finkelman, supra note 138, at 269.

316.

Clinton Impeachment, supra note 92, at 28; The Starr Report: Grounds For Impeachment, No. II, Wash. Post [1998], //www.washingtonpost.com/wp-srv/politics/special/clinton/icreport/7groundsii.htm [last visited Oct. 25, 2019].

317.

The Starr Report: Introduction, Wash. Post [1998], //www.washingtonpost.com/wp-srv/politics/special/clinton/icreport/5intro.htm [last visited Oct. 25, 2019]; see 28 U.S.C. § 595[c].

318.

Tassel & Finkelman, supra note 138, at 271.

319.

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].

320.

Gerhardt, supra note 15, at 176–77.

321.

See Clinton Impeachment, supra note 92, at 200–02 [minority views].

322.

Id. at 128.

323.

Id. at 2.

324.

Id. at 2–3.

325.

Id. at 3–4.

326.

Id. at 4–5.

327.

144 Cong. Rec. 28,035–113 [1998].

328.

145 Cong. Rec. 2375–78 [1999]; Alison Mitchell, Clinton is Acquitted Decisively by Senate on Both Charges, N.Y. Times [Feb. 13, 1999], //www.nytimes.com/learning/general/featured_articles/990216tuesday.html.

329.

See 145 Cong. Rec. S1471–1637 [daily ed. Feb. 12, 1999]; Gerhardt, supra note 15, at 175.

330.

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].

331.

Id.

332.

Id. at 2573.

333.

Id. at 3001–02.

334.

Id. at 3004.

335.

See 145 Cong. Rec. S1471–1637 [daily ed. Feb. 12, 1999]; Gerhardt, supra note 15, at 175.

336.

Clinton Proceedings, supra note 330, at 2942.

337.

Id.

338.

144 Cong. Rec. 28,110–12 [1998].

339.

Randall K. Miller, Presidential Sanctuaries After the Clinton Sex Scandals, 22 Harv. J.L. & Pub. Pol'y 647, 728 [1999] ["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 seeCharles 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."].

340.

Michael J. Gerhardt, The Perils of Presidential Impeachment, 67 U. Chi. L. Rev. 293, 299–301 [2000].

341.

See 145 Cong. Rec. S1577 [daily ed. Feb. 12, 1999].

342.

Gerhardt, supra note 15, at 175–76.

343.

See H.R. Res. 499, 100th Cong., 2d Sess. [1988]; Hastings Impeachment, supra note 146, at 8, 66; see also The Impeachment Trial of Alcee L. Hastings [1989] U.S. District Judge, Florida, U.S. Senate, //www.senate.gov/artandhistory/history/common/briefing/Impeachment_Hastings.htm [last visited Oct. 25, 2019].

344.

Nixon v. United States, 506 U.S. 224, 237–38 [1993].

345.

United States v. Claiborne, 727 F.2d 842 [9th Cir. 1984].

346.

Tassel & Finkelman, supra note 138, at 168.

347.

132 Cong. Rec. H4710–22 [daily ed. July 22, 1986].

348.

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].

349.

Id. at 22.

350.

Id. at 23.

351.

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].

352.

Id. at 1.

353.

132 Cong. Rec. 29,870–72 [1986].

354.

Hastings Impeachment, supra note 146, at 8.

355.

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.

356.

H.R. Res. 499, 100th Cong., 2d Sess. [1988]; Hastings Impeachment, supra note 146, at 1–5, 8.

357.

Impeachment of Judge Alcee L. Hastings, Motions to Dismiss, supra note 147, at 48–65.

358.

The Impeachment Trial of Alcee L. Hastings [1989] U.S. District Judge, Florida, U.S. Senate, //www.senate.gov/artandhistory/history/common/briefing/Impeachment_Hastings.htm [last visited Oct. 25, 2019].

359.

135 Cong. Rec. S13,783–87 [daily ed. Oct. 20, 1989].

360.

Tassel & Finkelman, supra note 138, at 173.

361.

H. Comm. on the Judiciary, Impeachment of Walter L. Nixon, Jr., Report to Accompany H. Res. 87, 101stCong. 1stsess., H.R. Rep. No. 101-36, at 12–13 [1989] [hereinafter Nixon Jr. Impeachment].

362.

Id. at 14–16.

363.

See 135 Cong. Rec. H1802–11 [daily ed. May 10, 1989].

364.

135 Cong. Rec. S14,633–39 [daily ed. Nov. 3, 1989].

365.

Nixon v. United States, 506 U.S. 224, 226 [1993].

366.

Id. at 229.

367.

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]. 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].

368.

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].

369.

155 Cong. Rec. H7053–67 [daily ed. June 19, 2009]; Kent Impeachment, supra note 368, at 2–3.

370.

House Practice, supra note6, at ch. 27 §§ 3–4.

371.

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.

372.

Id. at 1–2.

373.

See 156 Cong. Rec. 3155–57 [2010].

374.

Porteous Impeachment, supra note 7, at 1–2.

375.

Id. at 2.

376.

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].

377.

156 Cong. Rec. S2358 [daily ed. Apr. 15, 2010]. See also Post-Trial Memorandum of the House of Representatives [Oct. 29, 2010], inPorteous Proceedings, supra note 376, at 304–15.

378.

156 Cong. Rec. 19,134–36 [2010].

379.

Id. at 8609.

380.

Id. at 8610.

381.

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].

382.

156 Cong. Rec. S10,282 [daily ed. Dec. 15, 2010].

383.

Id.

384.

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."].

385.

U.S. Const. art. II, § 4.

386.

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 generallyPorteous 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"].

387.

3 Hinds, supra note 5, at §§ 2444–68, pp. 902, 946–47.

388.

Joseph Story has also suggested that "civil officers" was not intended to cover military officers. See Story, supra note 13, at § 789 [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."].

389.

See discussion infra "Postbellum Practices [1865–1900]"; Constitutional Grounds, supra note 18, at 20; 3 Hinds, supra note 5, at §§ 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. See6 Cannon, supra note 5, at§ 548.

390.

3 Hinds, supra note 5, at §§ 2007, 2315. For a discussion of impeachment proceedings following an official's resignation, see "Impeachment After an Individual Leaves Office."

391.

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."].

392.

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.

393.

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].

394.

Berger, supra note 18,at101 [citing statement of James Madison, 1 Annals of Cong. 372 [1789]].

395.

Id. at 228–30.

396.

Story, supra note 13, at § 790 [emphasis added].

397.

William Rawle, A View of the Constitution of the United States 214 [1829] [emphasis added].

398.

See, e.g., DOJ, Office of Legal Counsel, Officers of the United States Within the Meaning of the Appointments Clause [Apr. 16, 2007], //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].

399.

U.S. Const. art. II, §2, cl. 2.

400.

Id.

401.

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."]. 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 398.

402.

424 U.S. 1, 126 & n.162 [1976].

403.

U.S. Const. art. II, §2, cl. 2.

404.

Edmond, 520 U.S. at 661.

405.

Id. at 659.

406.

Id. at 662–63.

407.

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. 371, 397–98 [1880] [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].

408.

SeeRaoul 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.].

409.

Id. at 1510 [statement of Archibald Maclaine].

410.

Id. at n.176 [citing Records of the Federal Convention of 1787, supra note 46, at 53–54].

411.

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.

412.

U.S. Const. art. II § 4.

413.

See supra "High Crimes and Misdemeanors."

414.

See, e.g., Nixon Impeachment, supra note 115, at362–72 [minority views]; 3 Deschler, supra note 95, at Ch. 14 § 3.8, pp. 1992–94. See also Constitutional Grounds, supra note 18, at 22.

415.

See Nixon Impeachment, supra note 115, at362–72 [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.

416.

See supra "History of Impeachment in Congress."

417.

See Gerhardt, supra note15, 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.

418.

See Constitutional Grounds, supra note 18, at 22–24.

419.

Id. at 26.

420.

Nixon Jr. Impeachment, supra note 361, at 5.

421.

Id.

422.

Hastings Impeachment, supra note 146, at 6.

423.

See Constitutional Grounds, supra note 18, at 22–25.

424.

U.S. Const. art. I, § 3, cls. 6, 7.

425.

See Constitutional Grounds, supra note 18, at 22–24.

426.

Nixon Jr. Impeachment, supra note 361, at 5.

427.

See Constitutional Grounds, supra note 18, at 22–25.

428.

SeeHastings Impeachment, supra note 146, 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."].

429.

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, at §§ 2333–35, pp. 697–704. See supra "Early Historical Practices [1789–1860]."

430.

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."

431.

Ritter Impeachment,supra note 277, at 637–38. See supra "Early Twentieth Century Practices."

432.

See House Practice, supra note6, 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]"].

433.

See 3 Deschler, supra note 95, at Ch. 14 § 3.9, pp. 1994–98; Gerhardt, supra note15, at 106–07.

434.

U.S. Const. art. II, § 4; art. III, § 1.

435.

See House Practice, supra note6, at ch. 27 § 3.

436.

See Impeachment, Selected Materials, supra note 167, at 666.

437.

House Practice, supra note6, at ch. 27 § 4.

438.

See Impeachment, Selected Materials, supra note 167, at 667.

439.

See Constitutional Grounds, supra note 18, at 17.

440.

Id.

441.

Clinton Impeachment, supra note 92, at 110–18.

442.

See Impeachment, Selected Materials, supra note 167, at 666.

443.

See id. at 108, 119.

444.

See id. at 108.

445.

Id. at 112.

446.

Id. [quoting 132 Cong. Rec. S15, 760–62 [daily ed. Oct. 9, 1986]].

447.

Id. at 113.

448.

Id. at 118.

449.

Id. at 204 [minority views].

450.

Id. at 205.

451.

Id. at 206–07.

452.

Id. at 207.

453.

Id. Cf. discussion supra "Contemporary Judicial Impeachments."

454.

145 Cong. Rec. 2375–78 [1999].

455.

See generally Gerhardt, supra note 15, at 175–79.

456.

U.S. Const. art. II, § 4.

457.

Id. art. III, § 3, cl. 1.

458.

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."],withHastings Impeachment, supra note 146, 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].

459.

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."].

460.

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].

461.

Frank O. Bowman III, High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump 243 [2019].

462.

IV William Blackstone, Commentaries on the Law of England: In Four Books 129 [1765-69].

463.

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"].

464.

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 alsoWilliam 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].

465.

SeeRollin 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. SeeChafetz, supra note 20, at 81.

466.

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."].

467.

See Wooddeson, supra note 466, at602 [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]; Story, supra note 13, at § 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."].

468.

See 3 H.L. Jour. 380 [1624] [convicting Lionel Cranfield, Earl of Middlesex and Lord Treasurer on various articles including bribery and extortion].

469.

5 Elliot's Debates, supra note 59.

470.

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].

471.

Crimes Act of 1790, ch. 9, § 21, 1 Stat. 112 [1790].

472.

Act of Feb. 26. 1853, ch. 81, § 6, 10 Stat. 171 [1853].

473.

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."].

474.

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]].

475.

See, e.g., 3 Hinds, supra note 5, at §§ 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, at §§ 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"].

476.

H.R. Res. 499, 100th Cong., 2d Sess. [1988]; Hastings Impeachment, supra note 146, at 1–5, 8.

477.

Hastings Impeachment, supra note 146, at 41.

478.

135 Cong. Rec. S13, 783–88 [daily ed. Oct. 20, 1989].

479.

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."].

480.

Id. at 16.

481.

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 conduct, the report also "note[d] by way of reference" judicial interpretations of "federal bribery laws." Id. at 86 n. 397.  

482.

See discussion infra notes 466-67.

483.

See discussion infra note 468.

484.

See discussion infra notes 474-80.

485.

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, at § 498, pp. 684–85.

486.

6 Cannon, supra note 5, at §§ 499–500, pp. 686–87.

487.

H. Res. 622, 62d Cong. [1912].

488.

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, at§ 499–501, pp. 686–89; id. § 512, pp. 705–08.

489.

156 Cong. Rec. 3155–157 [2010].

490.

Porteous Impeachment, supra note 7, at 16–17.

491.

Id. at 52–53.

492.

156 Cong. Rec. 19,134–36 [2010].

493.

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, at § 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, at § 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, at§ 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.

494.

See House Practice, supra note6, at ch. 27 § 2. ["The House and Senate have the power to impeach and try an accused official who has resigned."]; Gerhardt, supra note15, 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 397, at 210. But see Story, supra note 13, at § 801; Robert C. Steele, Note, Defining High Crimes and Misdemeanors: A Call for Stare Decisis, 15 J.L. & Pol. 309, 358 [1999].

495.

Tassel & Finkelman, supra note 138, at 192–93.

496.

3 Hinds, supra note 5, at §§ 2444–68, pp. 902, 946–47.

497.

Id. at§§ 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. at§ 2467, pp. 945–46.

498.

See House Practice, supra note6, at ch. 27 § 2.

499.

6 Cannon, supra note 5, at§ 547, pp. 783–86.

500.

House Practice, supra note6, at ch. 27 § 4; 3 Hinds, supra note 5, at §§ 2504–05, pp. 1008–10.

501.

House Practice, supra note6, at ch. 27 § 4.

502.

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].

503.

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."].

504.

Concrete Pipe & Prods. v. Constr. Laborers Pension Tr., 508 U.S. 602, 622 [1993].

505.

United States v. Calandra, 414 U.S. 338, 343 [describing the responsibility of the grand jury as determining "whether there is probable cause believe a crime has been committed"].

506.

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"].

507.

This is both because impeachment proceedings are largely shielded from judicial review, see discussion infra "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.

508.

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].

509.

See In re Report & Recommendation of June 5, 1972 Grand Jury Concerning Transmission of Evidence to House of Representatives, 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, 2019 U.S. Dist. LEXIS 184857, at *65 n. 32 [D.D.C. Oct. 25, 2019].

510.

39 Cong. Rec. 244–46 [Dec. 13, 1904].

511.

Id. at 244.

512.

H. Comm. on the Judiciary, 105th Cong., Submission by Counsel for President Clinton to the Committee on the Judiciary 20 [Comm. Print 1998].

513.

Id.

514.

H.R. Rep. No. 93-1305, at 133, 183 [1974].

515.

Id. at 377 [minority views of Messrs. Hutchinson, Smith, Sandman, Wiggins, Dennis, Mayne, Lott, Moorhead, Maraziti an Latta].

516.

Id.

517.

Id.

518.

Compare Trial Memorandum of President William Jefferson Clinton, in 2 Clinton Proceedings, supra note 330, 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 330, at 1000–01 [arguing that beyond a reasonable doubt is an "inappropriate" standard for impeachment trials].

519.

U.S. Const. art I, § 2; id. at art II, § 4.

520.

2 Clinton Proceedings, supra note 330, at 952.

521.

1 id. at 758.

522.

S. Doc. No. 99-48, at 105 [1986].

523.

Id. at 107.

524.

132 Cong. Rec. S15,506–07 [daily ed. Oct. 7, 1986].

525.

Porteous Impeachment, supra note 7, at 4.

526.

Id.

527.

See S. Doc. No. 99-33, at 7 [1986].

528.

Senate Manual, supra note 9, at VII.

529.

Id. at XVI.

530.

Id. at VII.

531.

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."].

532.

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.

533.

Senate Manual, supra note 9, at XI.

534.

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."].

535.

See 3 Hinds, supra note 5, at § 2395, at p. 817.

536.

Report of the Senate Impeachment Trial Committee on the Articles Against Judge Alcee L. Hastings, S. Hrg. 101-194, Part 1 at 293 [1989].

537.

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."].

538.

145 Cong. Rec. S279 [daily ed. Jan. 15, 1999].

539.

S. Rep. No. 101-1, at 111 [1989].

540.

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, at18.

541.

Nixon v. United States, 506 U.S. 224, 237–38 [1993].

542.

506 U.S. at 226–27.

543.

Id.

544.

Id. at 227–28.

545.

Id. at 228.

546.

U.S. Const. art. I. § 3, cl. 6.

547.

Nixon, 506 U.S. at 229.

548.

Id.

549.

Id. at 231.

550.

Id. at 235.

551.

Id.

552.

Id. at 236.

553.

Id.

554.

Id. at 236–38 [discussing Powell v. McCormack, 395 U.S. 486 [1969]].

555.

See Powell, 395 U.S. at 489–95.

556.

Nixon, 506 U.S. at 236–237 [discussing Powell].

557.

Id. at 237.

558.

Id. See U.S. Const. art. I. § 5.

559.

Nixon, 506 U.S. at 236–37. See U.S. Const. art. I. § 2.

560.

Nixon, 506 U.S. at 236–37.

561.

Id. [discussing Powell].

562.

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]].

563.

Porteous v. Baron, 729 F. Supp. 2d 158, 160–61 [D.D.C. 2010].

564.

Id. at 160.

565.

Id. at 161–62.

566.

Id. at 165–67.

567.

In re Request for Access to Grand Jury Materials Grand Jury No. 81-1, Miami, 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].

568.

See id. at 1439.

569.

See id. at 1442.

570.

Id. at 1444.

571.

Hastings v. United States, 802 F. Supp. 490, 505 [D.D.C. 1992].

572.

Hastings v. United States, 988 F.2d 1280 [D.C. Cir. 1993].

573.

Hastings v. United States, 837 F. Supp. 3, 5–6 [D.D.C. 1993].