Impeachment

The House of Representatives...shall have the sole Power of Impeachment.

Article I, Section 2, Clause 5

In the debates in the Constitutional Convention, the delegates were attempting to craft a mechanism that would allow for the disciplining of a President who abused his constitutional responsibilities without creating a weapon by which the President would be prevented from carrying them out. At bottom, it was a question of how to refine and make effective the separation of powers.

Article II, Section 4, says that the President, Vice President, and "all civil Officers of the United States"—which includes judges—can be impeached. Members of Congress can be expelled by their own respective body. (See Article I, Section 5, Clause 2.)

Early on, some delegates expressed the apprehension that those serving in the federal government would be disinclined to monitor each other. Accordingly, John Dickinson proposed "that the Executive be made removeable by the National Legislature on the request of a majority of the Legislatures of individual States." James Madison opposed the idea because it would subject the executive to the "intrigues" of the states. After defeating Dickinson's proposal, the members of the Convention also turned aside George Mason's and Gouverneur Morris's initial fears that the impeachment power might render the executive the servant of the legislature. Instead, the Framers opted for the procedure that had been followed by the English and by the constitutions of most of the states. The appropriate place of bringing charges of impeachment, which power is analogous to the bringing of criminal charges by a grand jury, is in the lower house of the legislature. Just as the grand and petit juries are popular institutions, so it made sense to have the branch closest to the people charged with this indictment-like power.

The Constitution does not specify how impeachment proceedings are to be initiated. Early in our history, a Member would rise on the floor of Congress and propose an impeachment, which would then be assigned to a committee. In recent years, Members of the House Judiciary Committee have initiated the proceeding and then made recommendations for the whole House's consideration. If the House votes an impeachment resolution, the Chairman of the Judiciary Committee recommends a slate of "managers," whom the House subsequently approves by resolution, and who then become prosecutors in the trial in the Senate.

For a time there was legislation enabling the Attorney General to appoint a "special prosecutor" with the power to recommend impeachments to Congress, but dissatisfaction with the power of such an unchecked independent counsel led to the expiration of the authorizing statute. Even the most famous "independent counsel," Judge Kenneth Starr, who recommended the impeachment of President William Jefferson Clinton to Congress, had consistently argued against the practice of appointing such independent counsels.

There have not been many instances of impeachment over the years—a few dozen in all, mostly of corrupt federal judges. The most notable impeachments—Justice Samuel Chase, Presidents Andrew Johnson and William Jefferson Clinton—have ended in acquittals by the Senate. There were proceedings and hearings at the House Judiciary Committee and a bill of impeachment reported to the House against President Richard M. Nixon. Nixon resigned before the full House could vote on the impeachment charges against him.

The near-unanimous view of constitutional commentators is that the House of Representatives' "sole power" of impeachment is a political question and therefore not reviewable by the judiciary. The House is constitutionally obligated to base a bill of impeachment on the standards set out in Article II. (See Article II, Section 4.) However, the fact that the Constitution's text grants the House the "sole power," and the fact that such a review is not clearly within the Article III power of the federal judiciary indicate that this responsibility is the House's alone. The Supreme Court has found that the Senate's "sole power" to try impeachments is not justiciable. Nixon v. United States (1993).

That leaves the question of whether the clause imposes an affirmative duty on the House to monitor the conduct of those subject to impeachment, and, when evidence of impea-chable offenses is manifest, to initiate proceedings. It has been the general American practice regarding criminal law to grant considerable discretion to prosecutors, so that by analogy one could argue that the House has complete discretion to decide whether to initiate impeachment proceedings. On the other hand, Alexander Hamilton, in The Federalist No. 77, argued that the nation would find "republican" safety from a presidential abuse of power by the mode of his election and by his "being at all times liable to impeachment." There is no doubt that the Framers saw impeachment as a part of the system of checks and balances to maintain the separation of powers and the republican form of government. The implication is that when the President (or other impeachable official) has committed an impeachable offense, the Members of the House, bound by the oaths they take to uphold the Constitution, are under a particular obligation to deal with the miscreant's offenses, irrespective of whether their bill of impeachment may or may not lead to a conviction in the Senate.

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Stephen B. Presser
Sullivan & Cromwell Professor of Law
Northwestern University School of Law