Impeachment- a Citizen's Guide
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There’s more, but it’s all in this vein. No one should trivialize obstruction of justice. If you’re sued, you shouldn’t engage in anything like these acts, and if you do, you might feel the force of the criminal law.
But recall the context. Paula Jones sued Clinton for sexual harassment, based on his alleged conduct well before he became president. Clinton was charged with undertaking a variety of unlawful steps to reduce her chances of victory. Most of those steps involved efforts to persuade Monica Lewinsky to lie. That’s not good, but it is hardly close to the kind of thing that concerned Hamilton, Madison, and their colleagues. We aren’t speaking here of systematic violation of civil liberty, or acquisition of the office by unlawful means, or the grave misuses of official authority that triggered impeachment proceedings in the American colonies.
The House voted to impeach by a count of 221 to 212. Yet again, nearly all Republicans favored impeachment, and nearly all Democrats didn’t. On the perjury charge, the Senate voted to acquit by a margin of 55 to 45. On the obstruction charge, the vote was 50 to 50. Yet again, partisanship mattered; all 45 Democratic senators voted to acquit. Only ten of the 55 Senate Republicans voted to acquit on the perjury charge, and only five on the obstruction charge.
The Unitary Executive Again
Andrew Johnson was impeached in 1868 for just one reason: he fired Edwin Stanton, the secretary of war (now called the secretary of defense), and he tried to replace Stanton with someone he preferred. You might well ask: Isn’t the president allowed to choose the Secretary of Defense? Doesn’t he get to fire members of his own cabinet?
Excellent questions. You will remember that the framers created a unitary presidency. That is generally taken to mean that under the Constitution, the president can get rid of members of his own cabinet. Congress has no authority to limit that power. That’s certainly what Johnson believed. And ultimately, the Supreme Court agreed with him.24
Nonetheless, Congress enacted a law that it called the Tenure of Office Act, which was specifically designed to forbid the president from removing certain executive officials, including the secretary of war, without the Senate’s approval. The law said that those officials “shall hold their offices respectively for and during the term of the President by whom they may have been appointed and for one month thereafter, subject to removal by and with the consent of the Senate.”25 Believing that the Tenure of Office Act was unconstitutional, Johnson ignored it. So the House impeached him.
Of course there was a dramatic political background. Johnson had become president only because of the assassination of Abraham Lincoln. After the Civil War, the nation was embroiled in a debate about how to reconstruct the defeated South, and how to reunify the nation. Although Johnson was from the South, many in a group within the Republican Party, sometimes described as the Radical Republicans, hoped and believed that he would adopt an aggressive set of programs during Reconstruction, designed above all to protect and assist the newly freed slaves. Johnson badly disappointed them. He proved far more cautious than they expected, and as they saw it, far more solicitous of the defeated South.
Emboldened by electoral success, the Radical Republicans enacted the Tenure of Office Act specifically to protect Stanton, who generally shared their views. More than that, the Tenure of Office Act was designed to threaten and to trigger impeachment. It explicitly said that if the president violated it, he would be committing a “high misdemeanor.” Gosh. As far as I am aware, nothing like that has ever happened in American history, either before or since. Johnson paid no attention.
In response, the House passed no fewer than eleven articles of impeachment. They’re endless as well as redundant. The first article complained about Johnson’s order to dismiss Stanton:
Which order was unlawfully issued, and with intent then and there to violate the act entitled “An act regulating the tenure of certain civil office,” passed March 2, 1867, and contrary to the provisions of said act, and in violation thereof, and contrary to the provisions of the Constitution of the United States, and without the advice and consent of the Senate of the United States, the said Senate then and there being in session, to remove said E. M. Stanton from the office of Secretary for the Department of War, whereby said Andrew Johnson, President of the United States, did then and there commit, and was guilty of a high misdemeanor in office.26
Saying so doesn’t make it so. Johnson had a good-faith argument that he was acting in accordance with his constitutional authority.27 For those who sought to impeach Johnson, things were even worse. As I have noted, the Supreme Court eventually ruled that Johnson was exactly right on the Constitution, which forbids Congress from requiring the president to obtain the Senate’s consent before firing members of his cabinet.28
In the House, the vote against Johnson was overwhelming: 126 to 47.29 Johnson narrowly avoided conviction in the Senate, whose 35 to 19 vote to convict fell just one short of a two-thirds majority.30 All nine Democrats voted Not Guilty; just ten of the 45 Republicans joined them. Johnson was a terrible president, but his impeachment violated the constitutional plan.
Non-Presidential Impeachments
In American history, the House of Representatives has impeached just nineteen officials. The Senate found eight guilty and acquitted seven. One impeachment was dismissed for technical reasons. Three officials who were impeached ended up resigning.31 The U.S. House of Representatives has published a full accounting, reproduced below.32
As we can see, only one United States senator was impeached, in 1797: William Blount, who had fought in the Revolutionary War. Strapped for cash, Blount conspired with the British to help England conquer parts of Spanish Louisiana and Florida. After the impeachment, the Senate voted to expel him by a two-thirds vote. The impeachment trial in the Senate was dismissed on the grounds that the Senate lacked the authority to impeach its own members. (There was also an objection that he had already been removed from office and for that reason may not have been impeachable.)
Justice Samuel Chase was impeached in 1804 for allegedly engaging in arbitrary and oppressive treatment of parties before his court.33 In one case, he was said to have acted as a prosecutor rather than a judge. In another, he refused to discharge a grand jury after it declined to indict a printer who had allegedly engaged in seditious behavior. Chase was widely regarded as a highly partisan judge. William Belknap, the secretary of war, was impeached in 1876 for bribery. In 1912, a judge on the United States Commerce Court, Robert Archibald, was impeached for influence-peddling with litigants.
A strong majority of impeached officials—thirteen of the nineteen—have been federal district court judges. Of the fifteen non-presidential impeachments, only eight were convicted: Pickering, Humphreys, Archibald, Ritter, Claiborne, Hastings, Nixon, and Porteous. Delahay, Belknap, English, and Kent resigned before the Senate vote.
CHART 1
History of Impeachments by the House of Representatives
Individual
Position
House Action/Charges
Senate Trial
Result
William Blount
U.S. senator from Tennessee
Impeached July 7, 1797, on charges of conspiring to assist in Great Britain’s attempt to seize Spanish-controlled territories in modern-day Florida and Louisiana
December 17, 1798–January 14, 1799
Charges dismissed for want of jurisdiction; Blount had been expelled from the U.S. Senate before his trial
John Pickering
Judge, U.S. district court, District of New Hampshire
Impeached March 2, 1803, on charges of intoxication on
the bench and unlawful handling of property claims
March 3, 1803–March 12, 1804
Found guilty; removed from office
Samuel Chase
Associate justice, U.S. Supreme Court
Impeached March 12, 1804, on charges of arbitrary and oppressive conduct of trials
December 7, 1804–March 1, 1805
Acquitted
James H. Peck
Judge, U.S. district court, Western district of Tennessee
Impeached April 24, 1830, on charges of abuse of the contempt power
April 26, 1830–January 31, 1831
Acquitted
West H. Humphreys
Judge, U.S. district court, Western district of Tennessee
Impeached May 6, 1862, on charges of refusing to hold court and waging war against the U.S. government
June 9, 1862–June 26, 1862
Found guilty; removed from office and disqualified from future office
Andrew Johnson
President of the United States
Impeached February 24, 1868, on charges of violating the Tenure of Office Act by removing Secretary of War Edwin Stanton from office
February 25–May 26, 1868
Acquitted
Mark H. Delahay
Judge, U.S. district court, Kansas
Impeached February 28, 1873, on charges of intoxication on the bench
No trial held
Resigned prior to trial
William W. Belknap
U.S. Secretary of War
Impeached March 2, 1876, on charges of criminal disregard for his office and accepting payments in exchange for making official appointments
March 3–August 1, 1876
Acquitted
Charles Swayne
Judge, U.S. district court, Northern district of Florida
Impeached December 13, 1904, on charges of abuse of contempt power and other misuses of office
December 14, 1904–February 27, 1905
Acquitted
Robert W. Archibald
Associate judge, U.S. Commerce Court
Impeached July 11, 1912, on charges of improper business relationship with litigants
July 13, 1912–January 13, 1913
Found guilty; removed from office and disqualified from future office
George W. English
Judge, U.S. district court, Eastern district of Illinois
Impeached April 1, 1926, on charges of abuse of power
April 23–December 13, 1926
Resigned November 4, 1926; proceedings dismissed December 13, 1926
Harold Louderback
Judge, U.S. district court, Northern district of California
Impeached February 24, 1933, on charges of favoritism in the appointment of bankruptcy receivers
May 15–24, 1933
Acquitted
Halsted L. Ritter
Judge, U.S. district court, Southern district of Florida
Impeached March 2, 1936, on charges of favoritism in the appointment of bankruptcy receivers and practicing law as a sitting judge
March 10–April 17, 1936
Found guilty; removed from office
Harry E. Claiborne
Judge, U.S. district court of Nevada
Impeached July 22, 1986, on charges of income tax evasion and of remaining on the bench following criminal conviction
October 7–9, 1986
Found guilty; removed from office
Alcee L. Hastings
Judge, U.S. district court, Southern district of Florida
Impeached August 3, 1988, on charges of perjury and conspiring to solicit a bribe
October 18–20, 1989
Found guilty; removed from office
Walter L. Nixon
Judge, U.S. district court, Southern district of Mississippi
Impeached May 10, 1989, on charges of perjury before a federal grand jury
November 1–3, 1989
Found guilty; removed from office
William J. Clinton
President of the United States
Impeached December 19, 1998, on charges of lying under oath to a federal grand jury and obstruction of justice
January 7–February 12, 1999
Acquitted
Samuel B. Kent
Judge, U.S. district court for the Southern district of Texas
Impeached June 19, 2009, on charges of sexual assault, obstructing and impeding an official proceeding, and making false and misleading statements
June 24–July 22, 2009
Resigned June 30, 2009, before the completion of the trial; H. Res. 661 ended the proceedings
G. Thomas Porteous, Jr.
Judge, U.S. district court, Eastern district of Louisiana
Impeached March 11, 2010, on charges of accepting bribes and making false statements under penalty of perjury
December 7–8, 2010
Found guilty; removed from office and disqualified from holding future office
Of Judges and Presidents
In American history, there have been more than three thousand federal judges, and some of them have proved highly controversial—usually because of their rulings, which have alienated large segments of the population, and sometimes because of their actions on and off the bench, which have ranged from the unseemly to the unsavory to the unlawful. Since the 1950s, justices on both the left and the right have upset a lot of people; consider Chief Justices Earl Warren and William Rehnquist, and also Justices William Brennan and Antonin Scalia. Even so, we have not seen a lot of politically motivated impeachment proceedings.
In general, Americans respect and even revere the idea of judicial independence, and controversial, even despised rulings have not triggered serious impeachment inquiries. To that extent, the House of Representatives has shown impressive restraint, and judicial impeachments have usually satisfied the constitutional standard. Under the constitutional text, acceptance of a bribe is easy, and if judges are randomly disbarring lawyers or refusing to hear witnesses, they are committing misdemeanors. But in some of the cases, the grounds invoked by the House of Representatives were pretty shaky. Harry Claiborne was not shown to have abused distinctly judicial powers, and you could make the same argument about Walter Nixon. Some of the grounds for impeaching Mark Delahay and Charles Swayne also seem to fall short of the constitutional
standard. What should we make of this?
One answer is to say that some of the judicial impeachments have a feature in common with the Clinton and Johnson impeachments: they are clear deviations from the Constitution. That’s probably right. After all, the constitutional standard for impeachment and conviction of federal judges is exactly the same as the standard for the president.34
But there is another and more interesting answer, which is that there is a real difference between judicial and presidential impeachments. Even though the constitutional text is the same, the structure of the Constitution and its surrounding context suggest possible reasons for taking special caution before impeaching presidents, and for allowing a mildly different and somewhat lower bar for impeaching federal judges.
Begin with history: one of the framers’ particular concerns, voiced in the Constitutional Convention, was the need to protect the president from the authority of Congress; they sought to insulate him in particular. Sure, they much wanted to ensure judicial independence as well, but the debates focused on the importance of ensuring that the president would not be within the control of Congress. As we have seen, essentially all of their debates were about the president, not federal judges, and the ratification debates were also preoccupied with the relationship between the president and Congress.
Turn to pragmatic considerations: impeachment of the president is uniquely destabilizing. Sure, it’s a grave act to impeach a federal judge, and doing so can endanger judicial independence, but outside of the most unusual situations, it does not exactly threaten a national crisis. It’s relevant that federal judges have life tenure. If judges can be impeached only for the most horrific abuses, then the nation will be stuck with terrible judges for their whole lives. The president has only a four-year term, which means that he can be thrown out, which argues for a higher bar for impeaching him.