Columns / Discourse / October 16, 2019

Living up to our Founding Fathers

Our task is to demystify the impeachment process. Impeachment procedures are clearly laid out in the Constitution. The House of Representatives has the sole power of impeachment by majority vote. The Senate has the sole power to try all impeachments, taking an oath “to do justice impartially,” and must have a two-third vote to convict and remove the impeached official from office. The Senate may also disqualify the guilty individual from holding any future office by a majority vote. Once removed from office, an individual is liable to be tried in criminal court.

A related procedural question is whether impeachment convictions by the Senate may be subject to judicial review. In a case involving a federal judge, the Supreme Court found the “sole” power granted to the Senate precluded judicial review. While presidents have challenged both judicial and congressional powers to subpoena materials from them, the judiciary has buttressed both congressional and judicial power to subpoena materials relating to ongoing impeachment or judicial proceedings.

In U.S. v. Nixon, the Supreme Court upheld the authority of a subpoena of the infamous tapes and other materials for use in a criminal trial. The Court’s decision led President Nixon to resign shortly thereafter. In a lower federal court case involving Nixon, the court used language supporting a Senate committee’s power to subpoena presidential materials that are essential to the functioning of the committee. Neither claim of executive privilege was based on national security concerns. Both cases recognize the importance of giving due weight to legitimate claims of executive privilege.

“Treason, bribery, or other high crimes and misdemeanors” are the impeachable offenses listed in the Constitution. The Constitution defines treason as “levying War against [the United States], or adhering to their enemies, giving them Aid and Comfort.” Bribery might involve either taking or giving bribes. Motive and intent are difficult to prove, although different standards may well be used in an impeachment proceeding that would not be acceptable in a criminal proceeding.

The term “other high crimes and misdemeanors” is included under the umbrella of the serious crimes of treason and bribery. James Madison objected to including “maladministration” as an impeachable offense on the grounds that it would “be equivalent to tenure during the pleasure of the Senate.” George Mason believed “treason” would not reach many “great and dangerous offenses” and introduced “other high crimes and misdemeanors” to the list of impeachable offenses. Alexander Hamilton, of Federalist (and Broadway) fame, referred to impeachment as arising “from the abuse or violation of some public trust.” Contemporary commentator Cass Sunstein regards impeachment as “available for egregious abuses of official authority.”

Impeachment proceedings have characteristically been based on criminal offenses, but impeachment does not require violations of the criminal law. For example, Charles Black argues that a president who says he will refuse to nominate any Muslim to his cabinet might well be impeached for violating the Constitution’s Religious Test Clause, even though such a violation could not result in a criminal indictment or conviction. One might also imagine a scenario in which Congress impeaches a president who never shows up for work, arguing that this constitutes a dereliction of duty and undermines the public trust.

The Federalist regards the separation of powers as the most important constitutional mechanism for controlling governmental power. This mechanism relies on both constitutional means and personal motives. The constitutional means are clear: the robust powers the Constitution grants each branch of government, including checks and balances.

The government is arranged so that members of each branch of government are enabled to defend the duties of their institution because of pride, love of power or fame. These motives may lead them to defend the duties, perspectives and integrity of their offices. In this way, the competing aims of the constitutional order (majoritarian will, national security and rights protection) are brought into productive tension through the political conflict between differently constructed branches.

The threat of impeachment is an essential tool of Congress in upholding the separation of powers. While this tool involves representation of the public will, the critical issue of presidential impeachment also calls for statecraft from members of Congress.

We properly try to formulate definitions and rules, but the decision to remove a president from office requires sober judgment and discretion in the Senate. If there is an impeachment trial, we hope that at this critical time the Senate will live up to Hamilton’s characterization in the Federalist as a “temperate and respectable body of citizens” and use “reason, justice and truth” to exercise “its authority over the public mind.”


Thomas Bell and Lane Sunderland are professors in the Department of Political Science and International Relations and together direct the Pre-Law program and co-wrote this article.

TKS Staff

Tags:  constitutional law Donald Trump impeachment law U.S. government

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