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Impeachment is the ultimate political punishment, a concept the American constitutional framers borrowed from English law governing the Houses of Parliament. Yet authors James Madison and Alexander Hamilton, drew a crucial distinction from the English version of impeachment in Article II of the Constitution. In this Congress Report, congressional expert and Washington journalist Jamie Stiehm explores that distinction and the current application of the impeachment process.

Impeachment was especially common during the rocky upheavals of Tudor and Stuart England. During the titanic struggle between King Charles I and Parliament over the limits of kingly rule, Parliament could not, by its own laws, impeach the king. Arrogant Charles I was untouchable, or so he thought. Parliament had the king beheaded after convening a trial in 1649. Young Samuel Pepys, later the diarist and high naval administrator, watched the execution of Charles I, as did a multitude of Londoners. Oliver Cromwell, the Puritan conqueror and member of Parliament, then took power.

To avoid such a destabilizing spectacle, Hamilton and Madison expressly made it legally viable for Congress to impeach and remove the American president via the Constitution. This limit on presidential power was the mark of a republic, not a monarchy of absolute power. The provision for impeachment was left deliberately—and wisely—wide open to cover a realm of future wrongdoing. If the president was charged and found guilty of “Treason, Bribery or other high Crimes and Misdemeanors,” then he must be removed from office. The constitution framers held the House would bring and prosecute a case of impeachment, and the smaller Senate would sit as a jury, having the final say.

The design is elegant and simple, suggesting the framers gave much thought to impeachment. The way it works divides the process neatly between the House of Representatives and the Senate. Only the House can decide to impeach, based on charges termed “articles of impeachment.” These charges are functionally an indictment. The House must approve impeachment by a majority vote. Then, and only then, a team of House “managers”—often lawyers—literally crosses the Capitol to deliver the charges to the Senate. This team argues the case in the full Senate trial. All senator jurors are expected to attend every hour of the trial at their desks. In short, it is a national courtroom drama that may take days or weeks.

But the framers envisioned impeachment as rare for officials in the executive and judicial branch. By tradition, members of Congress are not impeached. Senators can be technically be expelled by their ninety-nine peers.

The framers made it hard, near impossible, for removal from office—the ultimate punishment—to fall upon a president. The constitutional requirement that two thirds of the Senate vote “guilty” has proven elusive. However, the looming specter of impeachment drove one president from the White House. Disgraced Republican president Richard Nixon avoided impeachment by resigning from office in August 1974. The only American president ever to resign, Nixon was told by a grim trio of Republican lawmakers that he had no support in Congress for his part in directing the Watergate burglary and cover-up.

The Impeachment Political Process

Impeachment is best understood as a political process with legal language. There is no criminal code or penalty beyond removal. The question before Congress is simple: did the president or judge violate his oath to uphold the constitution? The political process of impeachment has its own realm of right and wrong, beyond any state or federal law. If found guilty, the guilty party is removed from office, but serves no time behind bars. Judged a threat to the state, he or she can also be prevented from running for office again, if the Senate decides to add that to the punishment by a majority vote. The president’s fate depends entirely upon the minds of lawmakers, who may be influenced by public opinion. Impeachment is conceived as the mechanism to protect the nation from a rogue president or judge, not simply to punish the wrongdoer.

Either the Chief Justice of the United States, the vice president, or a high-ranking senator may preside in the High Court of Impeachment held in the Senate chamber. The format is formal and rigid. Evidence and arguments are presented by the House managers, or prosecutors. Witnesses may (or may not) be called. The president has defense lawyers present, standing in front of the Senate to speak in reply, but the president is not in the room. Senators are allowed to ask questions of the managers in writing after the managers conclude their presentation, before delivering a verdict. At the end of answering questions, an open public roll call vote takes place. “Guilty or not guilty?” is the question before the Senate jury.

Most noteworthy, impeachment and removal of a president has never happened in American history, not since the Constitution’s words were written in Philadelphia in 1787. One Supreme Court justice and about fourteen federal judges have been impeached as “civil officials.” About half of the judges were found guilty. But never a president.

The First Presidential Impeachment Trial: Andrew Johnson in March 1868

Looking back more than a century, the first impeachment and trial was that of President Andrew Johnson. Abraham Lincoln’s vice president, he became president in 1865 upon Lincoln’s assassination in Ford’s Theatre. Johnson was famously spared the fate of removal by one Senate vote in 1868. John F. Kennedy devoted a chapter to that cliffhanger vote in Profiles in Courage, published in 1956, when JFK was a senator.

Historians agree that the bitter, balcony-filled Johnson impeachment was a direct result—or reenactment—of the Civil War. Indeed, it was a mighty clash between North and South with the wounds still fresh. To set the scene, Johnson became president about a week after the war ended. In retrospect, selecting the irascible tailor was Lincoln’s greatest mistake. Ironically, Johnson was a Southern Democrat from Tennessee, who did his best to restore former Confederate military officers and political leaders to their powerful places.

Strong currents and factions ran against Johnson. Republicans in Congress, the majority party, felt he was subverting the murdered Lincoln and the Reconstruction government goal to empower freed people who were recently enslaved. Lincoln’s close “Radical Republican” allies and Cabinet members were enraged at the old South social order rising up again.

Bad blood ran especially high between the president and the fierce Edwin Stanton, who served Lincoln as secretary of war and remained in his post. Johnson tried to fire him, causing a furor. Congressional leaders said the act directly violated the 1867 Tenure of Office law, passed to prevent Johnson from removing Lincoln Republican stalwarts. Johnson defied the new law, which required the Senate’s consent to remove a Cabinet member. In the ensuing confrontation, Stanton locked himself in his office. Incensed Republicans—for Stanton was an extremely capable man—took the matter to the House floor for a ready impeachment and then to a Senate trial. With three articles related to the Tenure of Office Act as the main catalyst, Senate Republicans were optimistic they could oust Johnson, but they came up one vote short of thirty-six, the two-thirds threshold. The “not guilty” vote from Edmund Ross of Kansas came as a surprise to his fellow Republicans. Ross’s motives were likely not as pure as JFK wrote the story, but his vote was the trial’s coup de grace. Bribery or corruption may have lurked behind the scenes, later historians believe.

The political damage for Johnson was clear in the war-torn capital. His power and influence waned, with no hope of winning the presidency in his own right, under the shadow of impeachment. He did, however, briefly return to the Senate in 1875, but died after a few months. His place in history as the first president to be impeached is secure. However, the political reason why—betraying the meaning of the Civil War—is often lost in translation.

The Second Presidential Impeachment and Trial: Bill Clinton in 1998–1999

On the cusp of the 21st century, no president has ever been found guilty by the Senate. In 1999, President Bill Clinton underwent an excruciating trial for an affair with a young woman who worked in his Administration, Monica Lewinsky. The Senate acquitted him after a stemwinder defending Clinton by a former senator, Dale Bumpers of Arkansas, a political mentor from the same state. Bumpers declared the Clinton family had suffered from taking a private matter into the public domain. Breathlessly reported, this salacious impeachment is not considered as weighty or consequential as the others. Clinton may have denied the affair in a deposition, but public sentiment was against deposing a popular president in an era of peace and prosperity. The person who arguably paid the price of impeachment was Al Gore, his vice president who lost by a hair to George W. Bush in the 2000 presidential stakes. Gore shunned Clinton’s help in the campaign because of the sex scandal.

The Trump Presidential Impeachments: 2020 and 2021

Three presidents were actually impeached by the House and tried by the Senate, but only one found himself impeached twice: Donald Trump in 2020 and again in 2021.

The 2020 trial turned on the question of whether the American president pressured a foreign power, Ukraine, to interfere in the 2020 election by investigating the son of his likely opponent, Joe Biden. This extraordinary impeachment differed from all the other cases, as the first ever to bring charges involving a foreign power at all. No president had ever been accused of bribing a foreign power. National security officials were alarmed about a phone call in which, they testified, Trump threatened to withhold military aid in a phone call with the president of Ukraine, Volodymyr Zelensky, asking for a “favor.” A sole Senate Republican voted to convict, Mitt Romney of Utah. The final vote in the majority Republican chamber was 52–48, far short of the required two thirds.

A majority of senators, 57–43, voted Trump was guilty in 2021, a result that fell short by ten votes of the required sixty-seven to remove him. Seven Republican senators joined fifty in the Democratic caucus for the most bipartisan result for conviction on the historical record; ten House Republicans had also sided with their Democratic colleagues. Ironically, Trump had recently left office by the time the Senate voted on his culpability in inciting the deadly January 6 insurrection on the Capitol. (That vote was on February 13.)

The First Judiciary Impeachments and Trials

During Thomas Jefferson’s presidency, two of the earliest impeachments and trials took place, each intriguing and important for setting precedent. In conduct that would be seen as unbecoming today, Jefferson openly urged both impeachments of Federalist judges, blurring the lines between the branches of the young government. He often bemoaned the judiciary was full of Federalists appointed by his political opponent and the previous president, John Adams.

In the winters of 1804 and 1805, a federal judge and a Supreme Court Justice were tried by the Senate after impeachment by the House of Representatives. First, the judge, John Pickering, was convicted for reasons of mental instability and intoxication. He even challenged Jefferson to a duel. Experts say this is the first example of Congress demonstrating the reach of its own power.

A year later, Jefferson’s vice president, Aaron Burr, presided over the impeachment trial of Samuel Chase, a Supreme Court justice. Chase was charged with bias and partisanship. According to witnesses, lawyer Burr, who had killed Alexander Hamilton in a duel, was respected for running the trial with fairness, discipline, and rigor, forbidding senators to even eat their customary snack of apples. Chase was found not guilty, and Burr faced political exile in just a few days. (Jefferson had named another running mate for his second term). Burr stood and gave an oration, a speech considered one of the greatest in Senate history. Men wept on the Senate floor when Burr foretold that if the constitution should ever perish, “Its expiring agonies will be witnessed on this floor!” He got down on his hands and knees, and repeated, “On this floor.” A farewell speech worthy of Shakespeare met with an unbroken silence as Burr walked out of the chamber.

—Jamie Stiehm (March 2021)

 
Document Citation
Stiehm, J. (2015). Impeachment: A Political Process Wrapped in Legal Form. CQ Congress collection (web site). http://library.cqpress.com/congress/cqelcong-2240-115408-2979014
Document ID: cqelcong-2240-115408-2979014
Document URL: http://library.cqpress.com/congress/cqelcong-2240-115408-2979014