Punishment for Impeachment

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.

Article I, Section 3, Clause 7

The Punishment for Impeachment Clause sets forth the scope and nature of the punishments that the Senate may impose in impeachment trials. In fashioning this clause, the delegates to the Constitutional Convention deliberately distinguished impeachment in this country from the British system by limiting the punishments in the federal Constitution to those typically found in state constitutions, that is, removal and disqualification, in contrast to the House of Lords' practice of imposing any punishment, including death, in an impeachment proceeding.

Since ratification, four troublesome questions have arisen under this clause. The first was whether the Senate may impose the sanctions of removal and disqualification separately and, if so, how. The Senate claims that it may impose these sanctions by separate votes: (1) removal, involving the ouster of an official from the office he occupies at the time of his impeachment trial, and (2) disqualification barring the person from ever serving again in the federal government. In 1862 and 1913, the Senate took separate votes to remove and disqualify judges West Humphreys and Robert Archbald, respectively. For each judge, a supermajority first voted to convict followed by a simple majority vote to disqualify. The Senate defended this practice on the ground that the clause mentioning disqualification does not specify the requisite vote for its imposition, although Article II, Section 4, mentions removal as following conviction. The Senate in 1862 and 1913 considered that the supermajority requirement was designed as a safeguard against removal that, once satisfied, did not extend to the separate imposition of disqualification.

The second question involves the proper sequence of impeachment and criminal proceedings. It is clear from practice and judicial interpretation that officials other than the President may be convicted and even imprisoned before impeachment. The question is whether a sitting President, though not singled out in the text of the Constitution, is immune from trial and conviction in the ordinary courts before impeachment and removal from office. The provision that a convicted official is "liable and subject to Indictment, Trial, Judgement and Punishment, according to Law" gives rise to two constructions. Alexander Hamilton in The Federalist No. 69 construed the clause as requiring that a President would first be impeached and removed from office and "would afterwards be liable to prosecution and punishment in the course of law." The argument, made by many of President William Jefferson Clinton's defenders during his impeachment and trial, is that prosecuting Presidents poses a unique risk not applicable to prosecuting the leaders of other branches because the executive branch is the only federal branch overseen by a single individual and thus prosecuting its leader—the President—uniquely risks paralyzing the entire branch he oversees.

The counter-arguments seem at least as strong. First, the clause could be read not as requiring that impeachment precede prosecution, but as reflecting an expectation that impeachments generally might but are not required to precede prosecutions. In other words, the Constitution merely provides that these proceedings are mutually exclusive. Second, the President is not above the law, and a President is subject to the same legal requirements and burdens as any citizen, as implied by two unanimous Supreme Court decisions: United States v. Nixon (1974) (the President is not immune to subpoenas for evidence in a federal criminal trial) and Clinton v. Jones (1997) (the President is not immune from civil litigation based on his personal, unofficial conduct). Third, several judges have been prosecuted (and even imprisoned) before being impeached. Indeed, several courts rejected their efforts to bar their prosecutions before being impeached. On the other hand, an impeachable offense (such as abuse of office) may not be a crime. If an impeachable offense had to be first enacted into a criminal code, then the House of Representatives would not have the "sole" power to impeach because a criminal law would first have to be passed and therefore approved by the other branches of government.

The third question involves the interpretation of the provision 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." Throughout President Clinton's impeachment proceedings, Members of Congress considered whether this language permitted the Congress to impose a sanction against him short of impeachment and removal, such as a resolution passed by the House or Senate denouncing him for his misconduct. The congressional and academic debates at the time remain the most extensive yet on the legitimacy of censure.

There are strong arguments against censure. First, the Constitution does not explicitly authorize censure. Second, the vesting of the impeachment power in Congress arguably implies the exclusion of other means by which to punish officials who have committed impeachable offenses. Third, the use of censure would undermine the Framers' objective to narrow the range of permissible sanctions in an impeachment trial. Fourth, allowing censure could upset the delicate system of checks and balances by making it easier for Congress to harass or embarrass a President. Fifth, censure conceivably constitutes a bill of attainder (a legislative imposition of a punishment that only a court should have been authorized to impose after a trial).

There are also arguments supporting censure. First, the relevant text seems to imply that "lesser" punishments than removal or disqualification are permissible. Second, other clauses of the Constitution (including the Speech and Debate Clause, the First Amendment's freedom of speech guarantee, and the vesting of power in the House and the Senate to keep journals of their respective proceedings) empower Members of Congress to enter critical comments about public figures into the congressional record. While a "censure" consisting of mere words may or may not be thought a meaningful punishment, such expression could be easily accomplished outside of the impeachment process as a matter of collective speech of Senators and Representatives. Third, historical practices support censure. The House and Senate have passed over a dozen such resolutions, including resolutions condemning Presidents James K. Polk and Andrew Jackson. Hence, the debates over censure, like those over the other questions about the appropriate sanctions the Senate may impose for presidential misconduct, are likely to persist until historical practice resolves the matter.

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Michael J. Gerhardt
Samuel Ashe Distinguished Professor in Constitutional Law
Director, Center for Law and Government
The College of William and Mary, Marshall-Wythe School of Law