“Impeachment frenzy hits Capitol Hill,” the Washington Post’s Early 202 newsletter informed readers on January 10. It reported that House Republicans – having already adopted a resolution authorizing a formal impeachment inquiry into President Joe Biden – are discussing adding at least two department heads to the list, Homeland Security Secretary Alejandro Mayorkas and briefly-vanished Defense Secretary Lloyd Austin.
Never fear, Good Authority is here to help. Below are some things that are “good to know” about impeachment. Whether they whip you into any sort of frenzy – well, results will vary.
Why impeachment?
The U.S. Constitution greatly strengthened American national government, providing for numerous new officials – and the possibility they could abuse their power. “Shall any man be above justice?” George Mason asked during the constitutional convention in 1787. The answer from his colleagues was “no.” After much deliberation, the House of Representatives was given the power to impeach the president, vice president, “and all civil Officers of the United States.” The Senate, for its part, was given the power to hear the charges raised by the House and to decide whether the impeached officer should be convicted, removing them from office and possibly also disqualifying them from holding future government positions.
Impeachment requires a majority vote of the House. But conviction by the Senate requires a two-thirds vote of the members present. In one way this follows criminal law: Impeachment is an indictment, followed by a trial in a different venue, where prosecutors need to convince a supermajority of the jury of the defendant’s guilt. Importantly, though, this is not a criminal proceeding. Congress can’t impose jail time or even fines. Thus the Constitution clarifies that “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
Who can be impeached?
The president and vice president, obviously. But who is a “civil officer”? Like much of the Constitution, this has been clarified mostly by historical practice, which suggests that federal judges and cabinet officers are included (though how far down the executive chain of command the power extends remains unsettled.)
Members of Congress are excluded. When the House impeached Sen. William Blount in 1797 – the first impeachment ever brought under the Constitution – the Senate dismissed the charges, saying Blount wasn’t an “officer” under the clause. The House has accepted that ruling. Of course, members of Congress can be expelled by their own chamber, as former Rep. George Santos (R-N.Y.) discovered in December 2023. And indeed, Blount himself had already been expelled by the time his case reached the Senate.
Who has been impeached?
It’s not a hugely long list – totaling 21 impeachments. Besides Sen. Blount – getting more attention in this piece than he has in 225 years – the House has impeached 15 federal judges, one cabinet officer, and three presidents (one of them twice) – Andrew Johnson in 1868, Bill Clinton in 1998, and Donald Trump in 2019 and 2021.
Of the 20 impeachments the Senate accepted, eight resulted in removal, all of them judges. Nine, including all the presidents impeached, resulted in acquittal. And three officials resigned before their case could come to trial. President Richard Nixon also resigned, but preemptively. In his case, the House Judiciary Committee had adopted articles of impeachment – but Nixon left office before the full House could vote on them, calculating (almost certainly correctly) that he would be both impeached and removed if he let the process play out.
While he may not remain so, the sole department head impeached to date is Secretary of War William Belknap in 1876. Belknap, accused of trading contracts for cash, was acquitted – but only because he had already resigned from office. In fact, he had resigned even before he was impeached, setting a precedent that someone no longer in office was still subject to impeachment and conviction for their behavior while in office. The Senate voted to confirm that holding in 2021, when Donald Trump was impeached before leaving office but tried afterwards. Even so, as in 1876, some senators (most dramatically then-Senate Majority Leader Mitch McConnell) used the timing question as a rationale to vote for acquittal even while castigating the acts leading to impeachment. Obviously, if someone has left office the penalty can’t be removal. It is instead the disqualification of that person from holding future office.
On what grounds can someone be impeached and removed from office?
Here’s where things get trickier. Delegates to the Constitutional convention considered and rejected language that would have included charges like “maladministration,” “misfeasance,” “mal- and corrupt conduct,” “treachery,” “incapacity,” “negligence,” and even “perfidy.” But the framers were wary of setting too low a bar. As Madison said, impeachment should not be about policy differences, which would make the president’s tenure contingent only on the “pleasure of the Senate.” Another prominent lawmaker put it this way much more recently, in 2019: “You don’t get to remove a president because you don’t like him.”
Instead, in Article II, Section 4, the framers settled on “treason, bribery, or other high Crimes and Misdemeanors.”
Bribery seems straightforward, and treason is defined elsewhere in the Constitution as “levying War against [the United States] or in adhering to their Enemies, giving them Aid and Comfort.” But what constitutes a high crime or misdemeanor?
Alexander Hamilton took a shot at that question in Federalist #65. For Hamilton, impeachable offenses were different from infractions listed in the statute book, even serious ones: high crimes, he thought, constituted wrongdoing “of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.” They involved “the abuse or violation of some public trust” – crimes against the state, rather than those of a personal or tawdry nature. Legal scholar Charles Black argued in 1974 that only those offenses “which are obviously wrong… and which so threaten the order of political society as to make pestilent and dangerous the continuance in power of their perpetrator” should be impeachable. Thus while two judges have been impeached and removed for “intoxication on the bench” – a personal issue – it was one that undermined the rule of law by impairing the neutral and, er, sober deliberation of the judicial process.
While impeachment thus does not require citing the U.S. Code, the five serious efforts at presidential impeachment prior to Biden reveal that framing presidential behavior as “illegal” is nonetheless a constant. On paper, Johnson was impeached mostly for violations of laws the Reconstruction Congress had passed to impede presidential power, such as the Tenure of Office Act. But the real reasons lay in his stubborn refusal to advance the citizenship of those formerly enslaved. (Historian Jon Meacham notes that Johnson was a man of principle: “the problem was that the principle… was one of white supremacy.”) Before his resignation Richard Nixon was an “unindicted co-conspirator” in a large litany of crimes, including obstruction of justice. Bill Clinton lied about an extramarital affair – but did so under oath, inviting the charge of perjury. Donald Trump’s first impeachment was framed as attempted bribery – demanding a personal benefit (an investigation of a campaign rival) in exchange for performing public acts (releasing military aid to Ukraine and holding a White House summit with that nation’s president). Trump’s refusal to release the funds Congress had allocated to Ukraine may also have violated the Impoundment Control Act. The second time around, the charge was “inciting violence against the Government of the United States”: insurrection.
Conversely, not all crimes are impeachable offenses or, at least, do not warrant removal – Clinton’s perjury about his affair, for instance. In his case, the Senate agreed with Rep. Wayne Owens (D-Utah), a Watergate-era member of Congress, who thought that Clinton’s actions were “improper and serious, but by nature personal misconduct and therefore not impeachable.” Owens compared them to the charge of tax fraud leveled against Richard Nixon that did not pass the House Judiciary Committee in 1974. In short, “high crimes and misdemeanors” should be public wrongs, not personal sins.
In the end – in purely pragmatic terms at least – then-Rep. Gerald Ford was right in 1970: “an impeachable offense,” he said, “is whatever a majority of the House of Representatives considers it to be at a given moment in history.” That fact is why Thomas Jefferson feared that impeachment was “the most formidable weapon for the purpose of a dominant faction that was ever contrived.”
Editors’ note: This piece is drawn from Andrew Rudalevige, “The Crossroads of Impeachment: The Threat of Removal and the Separation of Powers,” in The Presidency: Facing Constitutional Crossroads, ed. Michael Nelson and Barbara Perry (University of Virginia Press, 2021), and the sources cited therein.
Related Good Authority posts:
- Andrew Rudalevige, “How Republicans made a U-turn on impeachment.“ From December 2023, this explores how House Republicans reversed the rhetoric they used against Pres. Trump’s second impeachment.
- Jeffery Jenkins and Eric M. Patashnik, “McConnell wants the impeachment trial to be about Congress’s authority — not about loyalty to Trump.“ Written before the second impeachment of Pres. Trump, for instigating the Capitol insurrection.
- Sarah Binder, “Mitt Romney changed the impeachment story, all by himself. Here are 3 reasons that matters.” A February 2020 analysis of then-Sen. Mitt Romney (R-Utah) voting to convict an impeached president of his own party, the first-ever such vote.
- Josep Colomer, “Impeachment exists because the Founding Fathers made a mistake. Several, actually.“ A December 2019 examination of why Congress has increasingly used this Constitutional tool
- Andrew Rudalevige, “Four things Donald Trump can learn from Bill Clinton’s experience with impeachment — but probably won’t.“ An October 2019 analysis of Pres. Trump’s situation after his first impeachment trial.
Further reading:
- Charles Black, Jr., Impeachment: A Handbook (Yale University Press, 1974).
- Jeffrey Engel, Jon Meacham, Timothy Naftali, and Peter Baker, Impeachment: An American History (Modern Library, 2018).
- Andrew Rudalevige, “The Broken Places: The Clinton Impeachment and American Politics,” in 42: Inside the Clinton Presidency, ed. Michael Nelson, Barbara A. Perry, and Russell L. Riley (Cornell University Press, 2016).
- Emily Field van Tassel and Paul Finkelman, Impeachable Offenses: A Documentary History from 1787 to the Present (CQ Press, 1999).
- Keith E. Whittington, “A Formidable Weapon of Faction? The Law and Politics of Impeachment,“ Law and Social Inquiry 25:2 (Spring 2000): 601-634.
Last updated: January 12, 2024
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