Article I, Section 3, Clause 6 — Impeachment Trials

ArtI.S3.C6.1 Overview of Impeachment Trials

Just as the Constitution vests the House with “sole”¹ authority to impeach government officials,² it entrusts the Senate with the “sole” power to try impeachments.³ And just as the Constitution authorizes the House to establish its own procedures, including for impeachments, it empowers the Senate to determine its own rules for impeachment trial proceedings.⁴ The Senate’s impeachment rules have remained largely the same since their adoption during the trial of President Andrew Johnson.⁵ However, while most impeachment trials were historically conducted on the Senate floor with the entire Senate participating, the Senate adopted Rule XI in 1935, which permits a committee to take evidence during impeachment trials.⁶ This rule was first implemented in the trial of Judge Claiborne in 1986; and the contemporary practice, at least with respect to the more common impeachment of federal judges, is for the Senate to appoint a special trial committee to receive and report evidence.⁷ After issuance of a report, the full Senate then convenes to consider the report and, after a closed deliberative session, publicly votes on the impeachment articles. The immediate effect of conviction upon an article of impeachment is removal from office,⁸ although the Senate may subsequently vote on whether the official shall be disqualified from again holding an office of public trust under the United States.⁹ If future disqualification from office is pursued, a simple majority vote by the Senate is required.¹⁰

Because impeachment is a political process largely unchecked by the judiciary, the role of the Senate in impeachment proceedings is primarily determined by historical practice rather than judicial interpretation.¹¹ Examination of the Senate’s practices is thus central to understanding the Constitution’s provision granting that body power to conduct impeachment trials.

ArtI.S3.C6.2 Historical Background on Impeachment Trials

The federal impeachment process stems originally from English practice,¹ where the House of Commons could impeach individuals and the House of Lords would convict or acquit.² Most of the American colonies and early state constitutions adopted their own impeachment procedures before the establishment of the federal constitution, with the power to try impeachments located in various bodies.³ At the Constitutional Convention, the proper body to try impeachment posed a difficult question.⁴ A number of proposals were considered that would have assigned responsibility for trying impeachments to different bodies, including the Supreme Court, a panel of state court judges, or a combination of these bodies.⁵ One objection to granting the Supreme Court authority to try impeachments was that Justices were to be appointed by the President, calling into question their ability to be independent in an impeachment trial of the President or another executive official.⁶ Further, a crucial legislative check in the Constitution’s structure against the Judicial Branch is impeachment, as Article III judges cannot be removed by other means.⁷ To permit the judiciary to have the ultimate say in one of the most significant checks on its power would subvert the purpose of that important constitutional limitation.⁸ Rather than allowing a coordinate branch to play a role in the impeachment process, the Framers decided that Congress alone would determine who is subject to impeachment. This framework guards against, in the words of Alexander Hamilton, “a series of deliberate usurpations on the authority of the legislature” by the judiciary as Congress enjoys the power to remove federal judges.⁹ Likewise, the Framers’ choice to place both the accusatory and adjudicatory aspects of impeachment in the legislature renders impeachment “a bridle in the hands of the legislative body upon the executive” branch.¹⁰

The Framers’ choice also imposed institutional constraints on the process.¹¹ Dividing the power to impeach from the authority to try and convict guards against “the danger of persecution from the prevalency of a fractious spirit in either” body.¹² Likewise, the requirement of a two-thirds majority in the Senate to convict and remove an official ensures (at least in the absence of one political faction gaining a supermajority) that impeachment and removal is not a strictly partisan affair and is limited to situations where consensus is possible.¹³

Finally, the Framers made one exception to the legislature’s exclusive role in the impeachment process that promotes integrity in the proceedings. While the Presiding Officer of the Senate (typically the Vice President of the United States) usually presides at impeachment trials, the Chief Justice of the Supreme Court presides in the event that the President of the United States is tried.¹⁴ This provision ensures that a Vice President shall not preside over proceedings that could result in his own elevation to the presidency, a particularly important concern at the time of the founding, when Presidents and Vice Presidents were not elected on the same ticket and could belong to rival parties.¹⁵

ArtI.S3.C6.3 Impeachment Trial Practices

The Senate enjoys broad discretion in establishing procedures to be undertaken in an impeachment trial. For instance, in a lawsuit challenging the Senate’s use of a trial committee to take and report evidence, the Supreme Court in Nixon v. United States unanimously ruled that the suit posed a nonjusticiable political question and was not subject to judicial resolution.¹ The Court explained that the term “try” in the Constitution’s provisions regarding impeachment was textually committed to the Senate for interpretation and lacked sufficient precision to enable a judicially manageable standard of review.² In reaching this conclusion, the Court noted that the Constitution imposes three precise requirements for impeachment trials in the Senate: (1) Members must be under oath during the proceedings; (2) conviction requires a two-thirds vote; and (3) the Chief Justice must preside if the President is tried.³ Given these three clear requirements, the Court reasoned that the Framers “did not intend to impose additional limitations on the form of the Senate proceedings by the use of the word ‘try.’”⁴ Accordingly, subject to these three clear requirements of the Constitution, the Senate enjoys substantial discretion in establishing its own procedures during impeachment trials.

The Senate’s discretion to establish procedures for an impeachment trial extends to how the body will receive evidence. In addition to relying on the evidentiary record prepared by the House, Senate impeachment trials have generally involved the presentation of additional evidence by witnesses appearing before either the Senate or a trial committee. The different approaches adopted in past presidential impeachment trials, however, display the scope of the Senate’s discretion in this regard. In the trial of Andrew Johnson, the Senate took live testimony from more than forty witnesses.⁵ In the trial of Bill Clinton the Senate chose to hear from three witnesses through videotaped depositions rather than through live questioning.⁶ In contrast, the Senate chose not to obtain witness testimony in either of the two trials of Donald Trump.⁷ While the Senate determines for itself how to conduct impeachment proceedings, the nature and frequency of Senate impeachments trial are largely dependent on the impeachment charges brought by the House. The House has impeached thirteen federal district judges, a judge on the Commerce Court, a Senator, a Supreme Court Justice, the secretary of an executive department, and three Presidents.⁸ But the Senate ultimately has only convicted and removed from office seven federal district judges and a Commerce Court judge.⁹ While this pattern obviously does not mean that Presidents or other civil officers are immune from removal based on impeachment,¹⁰ the Senate’s acquittals may be deemed to have precedential value when assessing whether particular conduct constitutes a removable offense. For instance, the first subject of an impeachment by the House involved a sitting U.S. Senator for allegedly conspiring to aid Great Britain’s attempt to seize Spanish-controlled territory.¹¹ The Senate voted to dismiss the charges,¹² and no Member of Congress has been impeached since. The House also impeached Supreme Court Justice Samuel Chase, who was widely viewed by Jeffersonian Republicans as openly partisan for, among other things, misapplying the law.¹³ The Senate acquitted Justice Chase, establishing a general principle that impeachment is not an appropriate remedy for disagreement with a judge’s judicial philosophy or decisions.¹⁴

ArtI.S3.C6.4 Oath or Affirmation Requirement in Impeachment Trials

The Constitution requires Senators sitting as an impeachment tribunal to take a special oath distinct from the oath of office that all Members of Congress must take.¹ This requirement underscores the unique nature of the role the Senate plays in impeachment trials, at least in comparison to its normal deliberative functions.² The Senate practice has been to require each Senator to swear or affirm that he will “do impartial justice according to the Constitution and laws.”³ The oath was originally adopted by the Senate before proceedings in the impeachment of Senator Blount in 1798 and has remained largely unchanged since.⁴

ArtI.S3.C6.5 Impeaching the President

The Senate has held impeachment trials for three Presidents. The first was the trial of President Andrew Johnson,¹ who was impeached in the shadow of the Civil War and significant disputes with Congress over the policy of Reconstruction.² In the first major impeachment trial of a President, the Senate formed a committee to adopt procedures for use at trial. The procedures adopted during the Johnson impeachment are largely unchanged today.³ Chief Justice Salmon Chase administered the oath to the Senate sitting as an impeachment trial and presided over the proceedings.

The primary issue at the trial was whether President Johnson’s violation of the Tenure of Office Act was an impeachable offense. The statute barred the removal of federal officeholders absent Senate approval; Johnson violated it by removing Secretary of War Edwin Stanton without the Senate’s consent.⁴ The Johnson Administration thought the law unconstitutional,⁵ and there was disagreement about the applicability of the Act to Stanton because he had been appointed by President Lincoln, rather than Johnson.⁶ Counsel for Johnson at the Senate trial argued that impeachment was inappropriate for violating a statute whose meaning was unclear and that the law itself was unconstitutional.⁷ The Senate voted to acquit President Johnson by one vote.⁸ The failure to convict Johnson seems to have established a precedent that impeachment is not appropriate for political or policy disagreements with the President; instead, impeachment is reserved for serious abuses of the office.⁹

The impeachment trial of President Bill Clinton was the second Senate trial of a president.¹⁰ The impeachment of President Clinton stemmed from the investigation by an independent counsel into a wide range of alleged scandals in the Clinton Administration. Independent Counsel Kenneth Starr’s investigation eventually expanded into whether President Clinton committed perjury in his response to a civil suit regarding the existence of a sexual relationship he had with a White House staffer and obstructed justice by encouraging others to lie about his relationship with the staffer.¹¹

Starr referred a report to the House of Representatives on September 9, 1998, noting that under the Independent Counsel Act in effect at the time, his office was required to notify Congress about potentially impeachable behavior discovered during the course of the independent counsel investigation.¹² The House eventually impeached President Clinton for perjury to a grand jury and obstruction of justice.¹³ In a departure from past impeachment trials of judges and Executive Branch officials, the Senate voted to require separate votes to approve each individual witness offered by the House managers.¹⁴ Due to the infrequency of presidential impeachments, the relevance of the Senate’s decisions concerning the procedures employed in the Clinton trial for future impeachments is uncertain.

The constitutional significance of the Clinton impeachment experience is still a matter of dispute. To the extent the impeachment of President Clinton stemmed from behavior arguably unconnected to the office, some might view the ultimate acquittal of President Clinton by the Senate as evidence that impeachment only applies to behavior distinctly public in nature.¹⁵ However, the majority report of the House Judiciary Committee argued that just as perjury, for example, was an impeachable offense for a federal judge, so it was also an impeachable offense for a President because it was “just as devastating to our system of government.”¹⁶ In addition, the charge of obstruction of justice brought by the House alleged that President Clinton used the powers of his office to impede and conceal the existence of evidence in both a civil lawsuit brought against him and during the investigation of the independent counsel.¹⁷ Complicating matters further, the acquittal might not represent any particular view of the standards for impeachable behavior, but simply either that the House managers did not prove their case, or that other considerations drove the votes of certain Senators.¹⁸

The third President to face a Senate impeachment trial was Donald Trump—the only President to be impeached, tried, and acquitted twice. The first impeachment trial stemmed primarily from a telephone conversation President Trump had with President Volodymyr Zelenskyy of Ukraine in which President Trump asked the Ukrainian President to announce two investigations: one involving President Trump’s potential opponent in the upcoming 2020 presidential election and a second into unsubstantiated allegations that entities within Ukraine had interfered in the 2016 presidential election.¹⁹ At the time of the phone call, the Office of Management and Budget had frozen $400 million in military aid to Ukraine at the direction of the President.²⁰ Revelations about the phone call, first brought to light by a whistleblower, prompted the initiation of a number of House investigations that eventually evolved into an impeachment investigation.

The House ultimately approved two articles of impeachment against the President. The first charged the President with abuse of power, alleging that he had used the powers of his office to solicit Ukraine’s interference in the 2020 election and had conditioned official acts, including the release of military aid to Ukraine and a White House meeting, on President Zelenskyy agreeing to announce the investigations.²¹ “President Trump,” the article alleged, “engaged in this scheme or course of conduct for corrupt purposes in pursuit of personal political benefit.”²² The second article charged the President with obstruction of the House impeachment investigation by directing the “unprecedented, categorical, and indiscriminate defiance of subpoenas issued by the House of Representatives.”²³

The second Trump impeachment occurred a year later following the events on January 6, 2021, at the U.S. Capitol in which some supporters of President Trump attempted to disrupt the congressional certification of the 2020 presidential election as having been won by Joseph Biden.²⁴ One week after that event, the House introduced and approved a single article of impeachment charging the President with “incitement to insurrection.”²⁵ Specifically, the article alleged that in the months running up to January 6 the President had consistently “issued false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the American people.”²⁶ He then repeated those claims when addressing a crowd on January 6, and “willfully made statements that, in context, encouraged—and foreseeably resulted in—lawless action at the Capitol . . . .”²⁷ Notably, although the House ultimately impeached President Trump prior to the expiration of his term of office, the Senate did not commence a trial until after President Trump had left office and become a private citizen.²⁸

In both impeachments, the Senate tried and acquitted President Trump on all charges.²⁹ Both trials, however, saw at least one member of the President’s own party vote to convict, and the second trial saw a majority of Senators vote to convict,³⁰ though the fifty-seven votes was short of the two-thirds required for conviction under the Constitution.³¹ Like most acquittals, the constitutional implications and precedential impact of the Trump trials is difficult to assess.

The first impeachment trial was characterized by deep partisan divides and complicated disagreements over questions of fact, law, and presidential motive. But one clear constitutional conflict that arose during the trial involved the proper relationship between impeachment and the criminal law. Trial briefs and debate made clear that the House managers and President Trump’s attorneys reached different conclusions on the question of whether “high crimes and misdemeanors” require evidence of a criminal act.³² The House, consistent with past impeachment practice, asserted that for purposes of Article II “high Crimes and Misdemeanors” “need not be indictable criminal offenses.”³³ In response, however, the President’s attorneys asserted that an “impeachable offense must be a violation of established law,” and that the articles “fail[ed] to allege any crime or violation of law whatsoever, let alone ‘high Crimes and Misdemeanors,’ as required by the Constitution.”³⁴ The acquittal provided no clear resolution to these conflicting positions, but the debate over a link between illegal acts and impeachable acts appears to have had some impact on individual Senators. Indeed, the House’s managers’ failure to allege a criminal act appears, along with what has been criticized as shortcomings in the House investigation and failure of the House to prove its case, to have been among the primary reasons given by Senators who favored acquittal.³⁵

The second trial displayed the legal and practical import of impeaching a former official. After briefing and debate on the question of whether the Senate had the constitutional authority to try a former President for acts that occurred during his tenure in office, the Senate explicitly determined by a vote of fifty-six to forty-four that it had jurisdiction and authority to do so.³⁶ Thus a majority of Senators, as they have on previous occasions, determined that former officials may be tried by the Senate and remain—as provided in Article I, Section 3—subject to disqualification from holding future office if convicted.³⁷ However, the majority of the forty-three Senators who voted to acquit the President did so at least partly on the basis that they disagreed with that decision and instead viewed the trial of a former President as “unconstitutional.”³⁸ As a result, it appears that while the Senate may have legal authority to try a former official, current disagreement on the matter may be widespread enough to create a practical obstacle to obtaining the supermajority necessary to convict a former official.