Ivan Hoffman, B.A., J.D.

         Article II, Section 4 of The Constitution states the basis for impeachment: 

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.

Article I, Section 2, subsection 5, states: 

5: The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. 

This section, by implication, provides for only a majority vote to impeach. 

Article I, Section 3, subsection 6, states: 

6: 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. 

Thus, while the House issues articles of impeachment, the Senate tries the party and it requires a 2/3rds vote to convict. 

If the Senate finds the party guilty, the sole remedy is removal from office and disqualification to hold any other “Office of honor, Trust or Profit under the United States:”  

Treason, Bribery or Other High Crimes and Misdemeanors 

          In the history of the United States, no president has ever been found guilty and impeached and removed from office.  Andrew Johnson and Bill Clinton were each impeached by the House but were found not guilty by the Senate. President Nixon resigned after the House committee voted to formally issue articles of impeachment but before the full House could vote on it.  There was an ongoing debate about impeaching President John Tyler but no articles of impeachment followed. 

          If found guilty, the actions of the Senate are not appealable.  The Supreme Court in United States vs. Nixon (read “United States vs. Nixon.”) held that the impeachment process is “non-justiciable” since it involves a “political question” and “a lack of judicially discoverable and manageable standards for resolving it.” 

          The bases for conviction involve more than mere criminality.  So even if a party has not committed actual crimes, there may still be a basis for impeachment.  You can read about treason in the article on my site with that name. 

          High Crimes and Misdemeanors are generally considered to be actual crimes, abuses of power and violations of the public trust.   At the time of the Constitutional Convention, Alexander Hamilton (later made famous by a successful Broadway play named after him) explained in The Federalist Papers that this phrase referred to: 

“those offences which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.” 

          These generally fall into the categories of: 

1.      Exceeding the Constitutional bounds of the powers of the particular office.

2.      Conduct which is grossly incompatible with the function of the office.

3.      Using the power of the office for improper purposes or for personal gain. 

          As examples of the offenses falling under this phrase, it is worth noting the list of such offenses as were detailed in the 3 articles of impeachment against President Nixon which included acts falling into the categories of obstruction of justice, abuse of power and contempt of Congress.  These were recently ordered produced.   

The acts were all founded on a violation of the Constitutional duty of the President:  

“faithfully to execute the office of President of the United States, and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed…” 

The Articles stated in part that the President: 

Committed unlawful entry of the headquarters of the Democratic National Committee in Washington, District of Columbia, for the purpose of securing political intelligence. Subsequent thereto, Richard M. Nixon, using the powers of his high office, engaged personally and through his subordinates and agents in a course of conduct or plan designed to delay, impede, and obstruct the investigation of such unlawful entry; to cover up, conceal and protect those responsible; and to conceal the existence and scope of other unlawful covert activities….  


has repeatedly engaged in conduct violating the constitutional rights of citizens, impairing the due and proper administration of justice in the conduct of lawful inquiries, of contravening the law of governing agencies of the executive branch and the purposes of these agencies.... 


has failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives on April 11, 1974, May 15, 1974, May 30, 1974, and June 24, 1974, and willfully disobeyed such subpoenas.... 

          Additionally, Special Counsel Ken Starr, in charge of the Clinton investigation, issued his own report that is illustrative.  The report stated that there were bases for impeachment in that it claimed that President Clinton violated his oath of office and his Constitutional duties by lying under oath, attempting to obstruct justice by seeking to influence testimony of witnesses, lying to witnesses in order to influence their grand jury testimony and similar claims.   

          Remember as well that the President’s pardon power does not extend to “Cases of Impeachment.”  Read “The Presidential Pardon Power.”  

          Note: The issue about whether a party impeached (whether or not found guilty) can also (or instead) be indicted and tried in criminal courts (federal or state) remains undecided in any court.  It is a complex set of issues and will possibly be the subject of a further article later on. 

Copyright © 2018 Ivan Hoffman.  All Rights Reserved. 

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Ivan Hoffman has been practicing intellectual property law for over 45 years and has written extensively about that topic. ( 


This article is not legal advice and is not intended as legal advice.  This article is intended to provide only general, non-specific legal information.  This article is not intended to cover all the issues related to the topic discussed.  You should not rely on this article in any manner whatsoever and you should not draw any conclusions of any sort from this article.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article is based on United States laws but the laws of other countries may be different.  You should consult with an attorney familiar with the issues and the laws of your country.  This article does not create any attorney client relationship and is not a solicitation.      



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