The article is written by Humaira Noor, who is studying in LL.B 5th semester at Abdul Wali Khan University Mardan. She can be accessed at: nhumaira1999@gmail.com

“The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
U.S. Constitution, Article II, section 4

INTRODUCTION:

The U.S. Constitution establishes a two-step process for the House and Senate to remove federal officials including the President, Vice President, judges, and other civil officers for “Treason, Bribery, or other high Crimes and Misdemeanors ”by  impeachment. Under the Constitution, the House has the power to formally charge (impeach) a federal officer. A majority of the House of Representatives can do so by passing articles of impeachment, which are essentially written accusations (similar to an indictment in ordinary criminal proceedings). The Senate is the only body with the authority to conduct an impeachment case and decide whether the person should be removed from office and perhaps prevented from holding future jobs.
The House has primarily used this procedure to impeach federal judges, but it has also impeached three presidents and one cabinet officer. Eight of these officials, all of whom were federal judges, have been removed from office by the Senate.

HISTORY OR BACKGROUND OF IMPEACHMENT:

At the 1787 Constitutional Convention in Philadelphia, impeachment was a hot topic of discussion. The founding fathers debated whether or not the president should be impeachable. The Founding Fathers included impeachment in the constitution to remove an official who had “made himself obnoxious (extremely unpleasant)”, as Benjamin Franklin expressed it. Without impeachment, citizens’ only option, Franklin said, was assassination, which would leave the political figure “not only robbed of his life but also of the opportunity to further demonstrate his character.” “It is best to provide the Constitution for the regular punishment of the Executive when his wrongdoing should warrant it, and for his honourable acquittal when he should be justly accused,” said Franklin.”[1]

IMPEACHMENT:
The word impeachment means a “charge of misconduct made against the holder of a public office”.
Impeachment in the United States is the process by which a legislature’s lower house brings charges against federal officials, including the President, Vice President, judges, and other civil officers for misconduct alleged to have been committed. It is a two-step process established by The U.S. Constitution for the House and Senate to remove these officials for “Treason, Bribery, or other high Crimes and Misdemeanors.”

GROUNDS FOR IMPEACHMENT:

The Constitution defines “treason, bribery, and other high crimes and misdemeanours”  as grounds for impeachment and conviction.These applied to behaviour found damaging to the state, including significant abuses of a government office or power, misapplication of finances, negligence of duty, corruption, abridgement of legislative rights, and betrayals of the public trust. To constitute for impeachment, an offence must be serious or significant in character.As to what constitutes a serious, impeachable offense, one commentator has said:
To determine whether or not an act or a course of conduct is sufficient in law to support an impeachment, resort must be had to the eternal principles of right, applied to public propriety and civil morality. The offense must be prejudicial to the public interest and it must flow from a willful intent, or a reckless disregard of duty. . . . It may constitute an intentional violation of positive law, or it may be an official dereliction of commission or omission, a serious breach of moral obligation, or other gross impropriety of personal conduct which, in its natural consequences, tends to bring an office into contempt and disrepute.[2]


WHO MAY BE IMPEACHED:

The impeachment provision of the Constitution allows the president, vice president, and all civil officers of the United States to be removed. It has been contended that for the purposes of impeachment, the word “civil official” should be interpreted to include officers appointed in conformity with the Constitution’s Appointments Clause, Art. II, Sec. 2, Cl. 2, which provides in relevant part:He shall … nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.[3]


The term “civil Officers,” as used in the Constitution, is said to refer to “those appointed by the President” and is wide enough to include all officers of the United States who hold their appointment from the federal government, regardless of whether their duties are executive, administrative, or judicial, or whether their position is high or low.

  • The impeachment clauses of the Constitution provide for the removal of federal judges. Twelve of the 15 impeachments that made it to the Senate were against federal judges, and the Senate voted to convict in seven of them: Pickering in 1803, Humphreys in 1863, Archbald in 1912, Ritter in 1936, Claiborne in 1986, and Nixon and Hastings in 1988 and 1989.
  • Military officials, on the other hand, are not liable to impeachment because they are subject to disciplinary actions based on military codes.
  • A member of Congress is not a “civil officer” as defined by the Constitution’s impeachment provisions. In 1799, the Senate upheld the claim that a Senator was not a civil officer within the meaning of the Constitution’s impeachment clauses. The Senate dismissed impeachment proceedings brought before it by the House, ruling that impeachment of Tennessee Senator William Blount was beyond its jurisdiction.
  • A private citizen who has never held public office is not subject to impeachment.[4]

PROCEDURE:

Under the United States Constitution, the House of Representatives has the authority to formally charge a federal officer with wrongdoing. The House impeaches an individual when a majority agrees to a House resolution containing explanations of the charges. The explanations in the resolution are referred to as “articles of impeachment.” After the House agrees to impeach an officer, the role of the Senate is to conduct a trial to determine whether the charged individual should be removed from office. Removal requires a two-thirds vote in the Senate.

HOUSE OF REPRESENTATIVES:


“The House of Representatives . . . shall have the sole power of impeachment.”

U.S. Constitution Article 1, Section 2, Clause 5


Procedure in House of Representatives:

The House impeachment process generally proceeds in three phases:
1) Initiation of the impeachment process
2) Judiciary Committee investigation, hearings, and markup of articles of impeachment
3) Full House consideration of the articles of impeachment.

  1. Initiation of the impeachment process:
    A Member can start the impeachment process by drafting a simple resolution and submitting it to the House hopper, just like all other simple resolutions. The resolution will be referred to the Committee on the Judiciary if it specifically calls for impeachment. If the resolution instead calls for a standing committee to investigate an official or suggests the formation of a special committee for that reason, it will be referred to the Committee on Rules, which oversees the authorization of committee investigations.
  2. Markup of Articles of Impeachment:
    After performing its investigation and examining any material given from earlier investigations, a committee entrusted with investigating impeachable offences may meet to discuss articles of impeachment, which is known as a markup. The impeachment articles are written in the form of a simple resolution. The intended meeting must be announced in advance, and the text of the articles of impeachment must be available 24 hours before the meeting. Members of the committee might be able to propose amendments to the articles of impeachment, which would be considered under the five-minute limit.
  3. Consideration of Articles of Impeachment on the House Floor:
    Articles of impeachment reported by the Judiciary Committee are considered privileged and can be debated on the House floor right away. The resolution containing the articles could be called up by the committee head (or a designee). Each Article of Impeachment will be debated and voted on by the entire House. The President will be “impeached” if any of the Articles of Impeachment is adopted by a simple majority vote. Impeachment, on the other hand, is similar to being charged with a crime. The president will continue in office until the Senate impeachment trial concludes.

Appointment and Role of House Managers in the Senate Trial:

After agreeing to the articles of impeachment, the House picks members to serve as managers in the Senate trial. By resolution, the House also tells the Senate that articles of impeachment have been adopted and allows the managers to conduct the trial in the Senate.[5]

SENATE:  “The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present.”

U.S. Constitution Article 1, Section 3, Clause 6

The Constitution grants the Senate the sole power to try all impeachments, and establishes four requirements for an impeachment trial in the Senate:
(1) The support of two-thirds of Senators present is necessary to convict
(2) Senators must take an oath or an affirmation
(3) The punishments the Senate can issue cannot extend further than removal from office and disqualification from holding future office
(4) In the case of a presidential impeachment trial, the Chief Justice, and not the Vice President or a Senator, is the presiding officer. (During the trial of a federal official other than the president, the Vice-President is the presiding officer).

The Senate does not begin impeachment proceedings; rather, it acts after the House has charged a federal officer with misconduct.


Procedure in senate:

The Senate notifies the House when the managers can propose the articles of impeachment to the Senate after receiving the resolution(s) from the House. The House managers read the resolution allowing their appointment as well as the resolution containing the articles of impeachment on the Senate floor at the scheduled time, then leave until the Senate summons them for the trial. During the trial, House managers, who may be supported by outside counsel, present evidence against the accused and are expected to respond to the accused’s (or his or her counsel’s) defence or written questions from Senators.

Organizing for the Trial:

The Senate then follows the following measures to prepare for a trial when the articles are presented:

  1. The Presiding Officer of the trial takes the oath of office.
    Senators must be “under Oath or Affirmation” when they sit for an impeachment trial, according to the Constitution. The Senate created the tradition of swearing in the trial’s presiding officer first, then administering the oath to all Senators.

The Senate sends out a “summons” to the impeached official, requesting a “answer” and a “replication” (or response) from the House Managers. The impeached officer must be informed of the charges through an official mechanism as soon as possible during the impeachment trial. When the Senate issues a summons, it also instructs the accused official to file a written response to the articles of impeachment. The Senate sets the deadline for submitting this response. The Senate also sets a deadline for the House Managers to file a formal written response to the impeached officer’s response, which is referred to as a “replication” with the Senate.

2. Determining Trial Proceedings: Orders of the Senate:
The Senate might achieve unanimous consent agreements or vote on ideas submitted by Senators, House Managers, or counsel for the impeached executive to create impeachment trial processes. These procedural agreements are referred to as Senate “orders” once they have been accepted.
When the Senate convenes to conduct a trial, the Senate’s “orders and judgments” must be voted on “without dispute.” When the Senate trial is in open session, the limitation on debate applies; if a majority of Senators wanted to discuss a proposed order, they might agree to do so in closed session.

3. Closed Deliberations by Senators:
The Senate impeachment trial will be held in public, with the exception of when the doors will be closed for deliberation. Each Senator may only speak once on each question during closed-door deliberations. Regardless of the number of articles of impeachment, such remarks are limited to 10 minutes on “interlocutory” inquiries and 15 minutes on “the final question” (i.e., whether the impeached officer is guilty or not guilty). Regardless of whether the Senate is considering one or several articles of impeachment, each Senator has just one 15-minute opportunity to speak during the final debate. Unlike open session records, which are made public, secret session transcripts are kept confidential unless the Senate lifts the injunction by resolution or unanimous consent.

4. Voting on Articles of Impeachment:
The Senate reconvenes in open session to vote on the articles of impeachment after closed door deliberations on the final decision of whether to convict or acquit an impeached officer. A guilty vote on at least one article of impeachment by two-thirds of senators present is required for conviction. If two-thirds of senators present convict an officer, “such a vote functions immediately and instantly to remove the individual impeached from office.”

Disqualifying a convicted officer from holding further office:

The Senate may then choose to take additional action, such as moving to disqualify a convicted official from holding further office, though this is not needed. The Senate has decided that a vote to disqualify requires only a simple majority of yes votes, rather than the two-thirds needed for conviction.[6]


IMPEACHMENT NOT CRIMINAL PROCEEDING: Article 1, Section 3, Clause 7 of the Constitution provides that “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 but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”[7]

PRESIDENTIAL IMPEACHMENTS IN US

Andrew Johnson, Bill Clinton, and Donald Trump are the only three U.S. presidents to be formally impeached by Congress. During his single term, Donald Trump was impeached twice. There has never been an impeachment of a president in the United States.
The only other US president, aside from Johnson, Clinton, and Trump, who faced formal impeachment proceedings in the House of Representatives was Richard Nixon. Also pertinent to mention is President John Taylor; Congress introduced resolution to impeach him over the state’s right issue but the resolution failed.

Impeachment of President Andrew Johnson:

The United States House of Representatives votes on 11 articles of impeachment against President Andrew Johnson, nine of which mention Johnson’s removal of Secretary of War Edwin M. Stanton, citing a violation of the Tenure of Office Act. President Johnson became the first president in American history to be impeached as a result of the House vote.


Johnson was impeached on February 24, 1868, and his impeachment trial began on March 13 in the Senate, presided over by Chief Justice of the United States, Salmon P. Chase. Johnson’s opponents nearly missed the two-thirds majority required to convict him at the end of the trial, which finished on May 26. Andrew Johnson, on the other hand, came dangerously close to being found guilty; he was just one vote away from being found guilty.

Impeachment of Andrew Johnson, CJ Salmon P. Chase Presiding, 1868

Impeachment of President Richard M. Nixon:


Richard Nixon, the 37th president of the United States, is best known for being the only president to ever resign from office. Nixon resigned in 1974, halfway through his second term, to avoid being impeached for his efforts to cover up unlawful acts by members of his administration during the Watergate scandal.
In fact, the House of Representatives voted three articles of impeachment against Nixon, making him the second president of the United States (after Johnson) to face a Senate hearing. Nixon, however, resigned before Congress could initiate the proceedings in 1974.

A Demonstration outside the White House in support of the impeachment of President Nixon

Impeachment of President Bill Clinton:  

In January 1998, it was revealed that President Clinton had an affair with Monica Lewinsky, a White House intern. Not just because it was a sex scandal, but also because it had serious legal consequences, this subject was political dynamite. Kenneth Starr’s massive investigations into the Whitewater land deal had come to a halt due to the unwillingness of several potential witnesses.
Clinton acknowledged his “inappropriate” conduct with Lewinsky in a televised address to the nation on August 17, 1998, following his testimony before a federal grand jury on the topic. He also recognised that he had deceived the nation and embarrassed his family.
Starr subsequently issued his findings to the House of Representatives, stating that Clinton had broken the law by lying under oath, obstructing justice, abusing authority and other violations.

Impeachment of B.Clinton presided over by CJ William Rehnquist, 1999

The House of Representatives passed two articles of impeachment, accusing the President of lying to the grand jury and obstructing justice in his dealings with potential witnesses. In mid-January 1999, the Senate, which is responsible with reviewing the evidence under the Constitution, began its trial. It became immediately clear that the Senate would not produce a two-thirds majority vote to convict Clinton and remove him from office.
Those who voted against impeachment said that the President’s acts were “low” and tawdry in nature, involving private concerns rather than “high crimes and misdemeanours” involving state violations. Those who voted against Clinton said that a President who commits perjury and obstructs justice, even in private matters, is subverting the rule of law, and that subversion becomes a “high crime.”
On February 12, 1999, Clinton was acquitted of both charges. As a result, the second President of the United States to be impeached stayed in office with two years left in his second term.[8]


Impeachment of President Donald Trump:

From January 2017 to January 2021, Donald Trump was America’s 45th president. He was the only president in American history to be impeached twice in one term.

Trump’s first Impeachment:

On December 18, 2019, Trump was impeached on two articles; abuse of power and obstruction of justice. The impeachment charges originated mostly from a phone conversation with Ukraine’s newly elected president, Volodymyr Zelenskiy, on July 25, 2019. President Trump sought the interference of a foreign government, Ukraine, in the 2020 US Presidential election, using the powers of his high position. He did so through a scheme or course of conduct that included asking the Ukrainian government to publicly disclose investigation against Joe Biden, vice president under Barack Obama and a Democratic candidate for the 2020 presidential race, that would help him win re-election, impair the election prospects of a political opponent, and influence the 2020 US Presidential election in his favour. In doing so, President Trump abused his powers in a way that risked the country’s national security and weakened the democratic process. As a result, he disregarded and harmed the nation’s interests.

“In the course of my official duties, I have obtained evidence from numerous US Government officials that the President of the United States is using the power of his office to seek foreign involvement in the 2020 US election,” an unnamed whistleblower said.

First Impeachment of D. Trump, CJ John Roberts presiding 2020


On September 24, 2019, House Speaker Nancy Pelosi started a formal impeachment investigation into Trump. Members of the House voted along political lines in support of impeachment just over a month later. The article on abuse of authority was supported by all but two Democrats, while the article on obstruction of Congress was supported by all but three Democrats. Neither article of impeachment against Trump received a vote from Republicans. The Senate decided to acquit Trump on both counts on February 5, 2020, primarily along party lines.

Trump’s Second Impeachment: 

The House of Representatives decided on January 13, 2021, to impeach Trump for alleged “incitement to insurrection.”

Donald Trump committed high crimes and misdemeanours by encouraging violence against the United States government. The Vice President of the United States, the House of Representatives, and the Senate assembled at the United States Capitol on January 6, 2021, in accordance with the 12th Amendment to the United States Constitution, for a Joint Session of Congress to count the Electoral College votes. President Trump regularly made false comments in the months leading up to the Joint Session, claiming that the Presidential election results were the result of widespread fraud and should not be accepted by the American people or confirmed by state or federal officials.

In his second impeachment hearing, President Trump was acquitted by the Senate on February 13, 2021. Seven Republicans joined 50 Democrats in voting to convict Trump, but they fell short of the 67 required guilty votes.[9]

Despite the fact that Congress has impeached and removed eight federal officials, all of whom were federal judges; no president has ever been found guilty during an impeachment hearing in the Senate.


Can a Removed Official Appeal Against the Impeachment?

No, In Nixon v. United States (1993), the Supreme Court held that the impeachment process constituted a non-justiciable political subject. This means that courts cannot hear appeals or other challenges to an impeachment process because impeachment is an issue reserved only for Congress under the Constitution.  (The case involved the impeachment of Judge Walter Nixon, not the more famous President Nixon.)[10]


CONCLUSION                                  

The Constitution’s framers purposefully made it difficult for Congress to remove a president who is in office. The process of impeachment begins with a formal impeachment inquiry in the House of Representatives. If the House Judiciary Committee finds sufficient grounds, members of the committee write and enact articles of impeachment, which are then presented to the whole House for a vote. To impeach a president, all that is required is a simple majority in the House of Representatives. However, this does not imply that he or she is unemployed. The Senate impeachment trial is the ultimate stage. The president is removed from office only if two-thirds of the Senate finds him guilty of the offences listed in the articles of impeachment.
More precisely it can be said “If a federal official commits a crime or otherwise acts unlawfully, the House of Representatives may impeach (formally charge) that official, if the official is later found guilty in a Senate impeachment trial, he will be removed from office.”


References


[1] https://www.smithsonianmag.com/smart-news/american-presidents-can-be-impeached-because-benjamin-franklin-thought-it-was-better-assassination-180961500/

[2] Brown, The Impeachment of the Federal Judiciary, 26 Harv. L. Rev. 684, 703, 404)

[3]https://webcache.googleusercontent.com/searchq=cache:QodLbTDV6DwJ:https://www.everycrsreport.com/files/20090622_98-186_fedb982eaf1b9db69083d06b7ca57335ec62e134.pdf+&cd=9&hl=en&ct=clnk&gl=pk

[4] https://www.govinfo.gov/content/pkg/GPO-HPRACTICE-104/pdf/GPO-HPRACTICE-104-27.pdf

[5] https://fas.org/sgp/crs/misc/R45769.pdf

[6] https://fas.org/sgp/crs/misc/R46185.pdf

[7] https://www.shestokas.com/constitution-educational-series/constitutional-impeachment-an-alternative-to-assassination/

[8] https://millercenter.org/the-presidency/impeachment/clinton-impeachment-and-its-fallout

[9] https://www.history.com/news/how-many-presidents-impeached

[10] https://www.socialstudies.org/system/files/publications/articles/se_8206355.pdf

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