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:
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
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:
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.
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:
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….
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....
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
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. (www.ivanhoffman.com).
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.