The United States Of America

The Constitution And Democracy

Impeachment
Impeachment, a proceeding in which accusations are brought by a legislative branch of a government against civil officials (chiefs of state, cabinet members, and judges). Legally the term impeachment applies only to the indictment. In popular usage it embraces also the trial of the accused, usually conducted by the higher branch of a legislature. In the United States the power to impeach resides solely with the House of Representatives; the power to try an impeachment case resides solely with the Senate. In some countries, including Belgium, France, India, and Italy, and in some states of the United States, a court conducts the trial. In a few countries, including the Republic of China (Taiwan) and Cuba, impeachment proceedings may be brought by an executive body against civil officials. Although in most countries impeachment is a device for removing civil officers, in some countries, notably England, it applies also in theory to private citizens to commoners, for treason or other high crimes and misdemeanors; to peers, for any crime. 

Impeachment existed in ancient Greece, in a process called the eisangelia. The modern institution did not originate until the latter part of the 14th century, in England, and it spread throughout the world. In the modern world impeachment clauses appear in the constitutions of many political systems. 

The English system, which began as a means of enforcing responsibility of the king's ministers to Parliament, was used heavily for 200 years beginning with the accession of James I in 1603. With the rise of the doctrine of ministerial responsibility in the 19th century, however, whereby the cabinet holds executive authority and Parliament may enter a vote of censure or no confidence, the need for the procedure receded. It was last used in England in 1806, in an unsuccessful attempt to remove Lord Melville. 

Impeachment in the United States 
The writers of the U.S. Constitution adopted the British procedure with modifications primarily designed to discourage the practice (then common in England) of using impeachment as an instrument of political warfare. Six clauses in the federal Constitution embody the law: Article I, sections 2 and 3; Article II, sections 2 and 4. The House indicts, the Senate tries, and the chief justice of the United States presides over the inquiry in case of impeachment of the president. Those subject to impeachment include the president, vice president, cabinet members, justices of the Supreme Court, and other federal judges. (Both houses of Congress may punish or expel their own members without having recourse to impeachment.) Traditionally, the House, after drawing up and voting on articles of impeachment that specify the charges and their factual bases, assigns congressional "managers" (prosecutors) to present the case before the Senate. At the start of the trial, the members of the Senate are sworn in as "jurors" by the chief justice. A two-thirds vote of the senators present is required to convict. Punishment is limited to removal from office, though disqualification from future office is considered to fall within the discretion of the Senate, and the acts of the accused are still subject to criminal proceedings in the courts. Impeachable acts are "Treason, Bribery, or other high Crimes and Misdemeanors." The presidential power to grant pardons does not extend to impeached persons. 
One of the most vexing questions raised by these provisions is, What are high crimes and misdemeanors? In 1804 the House accused Supreme Court justice Samuel Chase of intemperate behavior on the bench and ill will toward Jeffersonian Democrats. In 1970 the House minority leader (and future president) Gerald R. Ford, leading a failed campaign to impeach Supreme Court justice William O. Douglas, claimed that "an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history." Few have questioned that the actions attributed to Pres. Richard Nixon during the Watergate affair were sufficiently criminal to warrant impeachment. But citizens and experts alike questioned the impeachment in 1998 of Pres. Bill Clinton for lying about an illicit sexual affair, which many considered to have little or no bearing on the president's ability to conduct his office. The conclusion reached by most scholars is that clear criminal law violations represent impeachable offenses, whereas misconduct that is not necessarily criminal but that undermines the integrity of the office (such as disregard of constitutional responsibilities) may rise to the level of an impeachable offense. 
Partly because of this and other ambiguities, and partly because the trial stands to tie up the Senate for a considerable length of time, impeachment has taken place infrequently at the national level. Repeated attempts in Congress to simplify impeachment or to establish a special court for the removal of judges have fallen before the enduring conviction that the present procedure, however cumbersome, is a necessary element of the system of checks and balances. By making impeachment difficult, the Constitution guards against the intrusion of the legislature into the business of the judiciary and executive branches. It also ensures that impeachment remains primarily a legal, or judicial, procedure rather than a political process. 

Presidential Impeachments 
Attempts have been made to impeach a number of presidents, but only Andrew Johnson, Richard Nixon, and Bill Clinton were in real danger of being removed from office. 

Johnson's Impeachment and Trial 
One of the most conspicuous attempts in the United States to circumvent the intent of the Constitution's framers took place in 1868, when the Radical Republicans in control of the House of Representatives impeached Pres. Andrew Johnson in an obvious attack on the federal system of checks and balances. Johnson and Congress became adversaries soon after he took office in April 1865. The president, a Southerner, was more sympathetic toward the defeated Confederacy than was the Radical Republican majority in Congress. The obstinate Johnson affronted congressmen already displeased by the growth of presidential power that had taken place during the Civil War. The Radicals passed the Tenure of Office Act, forbidding a president from removing, without Senate approval, any official whose nomination had been subject to Senate approval. Johnson believed the act to be unconstitutional. Knowing that Secretary of War Edwin Stanton was in effect a Radical "spy," Johnson dismissed him without seeking Senate approval. Stanton refused to give up his office. The Radicals won adoption, 126 to 47, of an impeachment resolution in the House even before attempting to frame formal charges. 

Eleven articles of impeachment were submitted to the Senate. Eight related to Johnson's attempt to remove Stanton. Another charged in part that Johnson had criticized Congress "in a loud voice." The charges had no substance--the Radicals sought Johnson's removal for political reasons (as acknowledged by Republican senator Charles Sumner: "This proceeding is political in character--with a political object"). The trial lasted from March to May 1868. Chief Justice Chase presided. The president did not attend, but he was represented by able counsel. The defense stressed that presidents had long asserted the right to remove appointees and that Johnson, in removing Stanton, had sought to test the Tenure of Office Act in the courts. In its first vote the Senate divided, 35 to 19, in favor of conviction, 1 vote short of the required two-thirds. Ten days later, after votes on two more articles fell short by the same margin, the Radicals abandoned their efforts. 

The Investigation of Nixon 
Suspicions grew in 1973 that President Nixon was involved in the Watergate cover-up. In 1974 the House directed its Judiciary Committee to investigate Nixon. Nixon's counsel, James St. Clair, was permitted to hear the evidence, question witnesses, and present a defense. 

St. Clair held that Nixon could be impeached only on hard proof that he had committed serious criminal acts. Most committee members believed that a president might also be impeached for wrongdoing that was not strictly criminal. George Danielson, a Democratic Representative from California, argued that "only the President can abuse the powers of the office of the President"; such acts are high crimes, for "they are crimes or offenses against the very structure of the state." 

Investigations of Nixon's associates were already under way. The special prosecutor supplied evidence from a grand jury that had named Nixon an unindicted coconspirator in the cover-up. Nixon released transcripts of conversations. The Senate Watergate Committee supplied data. The committee heard nine witnesses. 

John Doar, the committee counsel, set forth 7,200 pages of "information"--names, dates, places that, viewed broadly, presented a pattern of misconduct. Chairman Peter Rodino (D-N.J.) sought a large bipartisan majority for impeachment. Southern Democrats and Republicans leaning toward impeachment composed language that could command wide support. Pro-impeachment members met complaints that the charges were not specific by agreeing to put bills of particulars in the committee report. In July the committee approved resolutions charging that Nixon had helped cover up Watergate, abused his powers, and failed to honor committee subpoenas. The votes were 27-11, 28-10, and 21-17. In the first two votes, 6 and 7 Republicans joined all 21 Democrats to form majorities. On August 5 Nixon released a transcript revealing his role in the cover-up. After it became evident that he would be removed from office, he resigned. 

The Case of Clinton 
President Bill Clinton's legal troubles originated in late 1993, when questions arose concerning investments made by him and his wife, Hillary Rodham Clinton, in an Arkansas real-estate venture, Whitewater Land Corporation, while Clinton was governor. Following the assignment of an independent counsel to the matter--initially Robert B. Fisk but from August 1994, Kenneth W. Starr--several of the Clintons' business partners and associates were convicted of fraud, conspiracy, and tax evasion. 

Meanwhile, in May 1994 a former Arkansas state employee, Paula Jones, filed a lawsuit against the president claiming that three years earlier then-governor Clinton had made unwanted sexual advances toward her. Clinton testified under oath (Jan. 17, 1998) that he had done nothing wrong; he also denied, under questioning, that he had ever had "sexual relations" with a young White House intern, Monica Lewinsky. Granted immunity from prosecution by Starr, however, Lewinsky testified that she had indeed engaged in sex with the president. On Aug. 17, 1998, appearing before a grand jury, Clinton admitted to having had limited sexual contact (noncoital) with Lewinsky. 

In October 1998 the House of Representatives voted (258-176) to initiate impeachment hearings to examine Starr's allegations of perjury and obstruction of justice. On Dec. 19 the House approved, in a nearly party-line vote, two of the four articles of impeachment drafted by the House Judiciary Committee; a Democratic proposal to allow censure as an alternative to impeachment was blocked by the Republican leadership. The Senate trial opened on Jan. 7, 1999. Videotaped depositions by Lewinsky and two other witnesses were presented. The final vote (46-54 on perjury; 50-50 on obstruction), taken on Feb. 6, 1999, failed to produce even a simple majority in favor of convicting and removing the president. 

Other Impeachment Proceedings 
Notable impeachment cases involving officials other than the president have occurred in the United States at both the federal and state levels. Impeachments have also occurred outside the United States. 

Federal Cases 
In 1797, in a case that largely established the rule excluding members of Congress from impeachment, charges brought against Sen. William Blount of Tennessee were dismissed on the grounds that a senator is not a "civil officer" within the meaning of the Constitution. Of 33 federal-level procedures initiated in the House during the 19th century (excluding President Johnson), only 5 came to trial; the most prominent defendants, Justice Samuel Chase of the Supreme Court and Secretary of War William Belknap, were acquitted. Of a total of 11 federal judges that have been tried (on charges ranging from bribery to tax evasion), 7 were convicted: John Pickering, U.S. district judge, New Hampshire (1803); West H. Humphreys, U.S. district judge, Tennessee (1862); Robert W. Archbald, judge of the U.S. Commerce Court (1913); Halsted L. Ritter, U.S. district judge, Florida (1936); Harry E. Claiborne, U.S. district judge, Nevada (1986); Alcee L. Hastings, U.S. district judge, Florida (1989); and Walter L. Nixon, Jr., U.S. district judge, Mississippi (1989). 

Impeachment in the States 
Seven American colonies incorporated impeachment proceedings in their constitutions, and since adoption of the federal Constitution, all states except Oregon have done so. Provisions vary enormously. A few states (Missouri, Nebraska, and New York) relieve their legislatures of all or most of the burden of trying the accused by entrusting this duty in whole or in part to their highest judicial officers. In Alaska, only justices of the state supreme court and judges may be impeached. In Alabama impeachment reaches to nearly every officer of the state. In listing grounds for impeachment, many states go beyond the federal Constitution. Arizona includes "malfeasance in office"; Louisiana adds "incompetence, corruption, favoritism, extortion, or oppression in office, gross misconduct or habitual drunkenness." Suspension from office pending proceedings is mandatory in some states. Among the most prominent cases of state impeachment have been those of governors Harrison Reed of Florida (1872), William Sulzer of New York (1913), James Z. Ferguson of Texas (1917), John C. Walton of Oklahoma (1923), Huey P. Long of Louisiana (1929; not convicted), and Evan Mecham of Arizona (1988). 

Impeachments outside the United States 
Many foreign governments lack an impeachment mechanism or else have one largely in name only, making it unlikely that opposition leaders will want to use it. Other governments both have and have used the impeachment mechanism. Leaders who have survived impeachment attempts include Sri Lanka's president Ranasinghe Premadasa (1991) and Russian president Boris Yeltsin (1993). Officials who have resigned in the face of impeachment proceedings include Venezuela's president Carlos Andres Pérez (1993) and Indian Supreme Court justice V. Ramaswami (1993). Those who have been removed from office following the successful prosecution of an impeachment include Nigeria's Gov. Balarabe Musa (1981) and Brazil's Pres. Fernando Collor de Mello (1992). 

Milton Lomask 
Author of Andrew Johnson: President on Trial 
For Further Reading 
Hoffer, Peter C., and Hull, N. E., Impeachment in America, 1635-1805 Yale Univ. Press 1984); 
Honey, M., Milestone Documents in the National Archives (National Archives & Records 1987); 
Smith, Gene, High Crimes and Misdemeanors, (McGraw 1985).