What does ‘impeachment’ mean?
The words ‘impeachment’ and ‘indictment’ and ‘liability’ are being thrown around in the news quite a bit. Some of the reporting/commentary I’ve seen is flat out wrong, some reporting incorrectly mixes up or intertwines distinct processes, some reporting uses analogies which result in confusion, and some reporting gets it right but does not provide a historical or legal context for the discussion. Whether you think impeachment is never happening in a million years or whether you think it is inevitable, it is good to understand the basics. Because I am a huge nerd, and because my children are enjoying simultaneous naps, and because I love history and constitutional law, here is my stab at breaking this down:
Impeachment
What is impeachment? Impeachment *and conviction* result in removal from office. The Constitution says that “impeachment shall not extend further than removal from office.” Art I, Sec 3, Cl 7. There are essentially two parts to impeachment — there is a vote to impeach, then there is a trial, which results in either acquittal or conviction. Impeachment is *not* civil or criminal liability.
Which part of Congress handles impeachment? Both. Under the Constitution, “the House of Representatives shall have the sole power of impeachment.” Art I, Sec 2, Cl 5. That means that the House of Representatives votes to initiate the trial to remove the President from office. (Remember, the House of Representatives is elected based on proportional representation, or the population of a state. There are 435 Representatives) The specific charges are called ‘Articles of Impeachment.’ If the House votes for impeachment, the Senate has the “sole power to try all impeachment.” Art I, Sec 3, Cl 6. (Remember, the Senate is elected based on equal representation, and does not take into consideration the population of a state. There are two Senators per state, for a total of 100 Senators). The Senate conducts a trial and votes to acquit or convict. Art I, Sec 3, Cl 6. To remove an official, two thirds of the Senate must vote to convict the official. There is some confusion because in the popular vernacular, people often use the term “impeached” to mean removed from office. It takes impeachment and conviction to be removed from office. President Clinton was impeached by the House but acquitted in the Senate and so remained in office.
What can you be impeached for? Under the Constitution, the President can be impeached for “Treason, Bribery, and other High Crimes and Misdemeanors.” Art II, Sec 4. Treason is defined in the Constitution: “Treason against the United States shall consist only in levying War against them, or in adhering to their enemies, giving them Aid and Comfort. No person shall be convicted of Treason unless on the Testimony of two Witnesses to the same over Act, or on Confession in open Court.” Art III, Sec 3, Cl 1. The Constitution does not define bribery, but we have a good idea what this means. The Constitution does not define “high crimes and misdemeanors” and it is an open question as to what it means. Some argue that this refers to criminal laws. Others think it is much more vague and open ended. Famously, then-Congressman Gerald Ford said, “An impeachable offense is whatever a majority of the House of Representatives considers it to be.” I think it probably means a very serious offense that goes to the official’s ability to carry out their oath of office but does not have to be criminally actionable conduct.
What is the role of the courts? Impeachment is a legislative process, not a judicial one. Both the Constitution and the Supreme Court are very clear on this. The judiciary and the Supreme Court *do not* review impeachment proceedings. That is a violation of separation of powers. Nixon v. United States, 506 U.S. 224 (1993) (a different Nixon — this case is about a federal judge named Nixon).
When has impeachment been used? There have only been three times that a President has been subject to impeachment. First was Andrew Johnson, who was President during the Post-Civil War Reconstruction era. Congress passed the “Tenure in Office Act” to keep President Johnson from dissolving or firing the cabinet members put in place by President Lincoln and made it a “high misdemeanor” to fire a cabinet member. President Johnson fired the Secretary of War. The House of Representatives voted to impeach him and the Senate voted. The Senate was just 1 vote short of the required 2/3 vote required to convict him and remove him from office. President Nixon is next on the impeachment list. This was in connection with the Watergate scandal. The House of Representatives voted to impeach him, but he resigned before the Senate had a chance to vote. President Clinton was the last President to face impeachment. The House of Representatives voted to impeach him based on a perjury or false testimony under oath that he gave as part of the Monica Lewinsky and Paula Jones scandals. The Senate voted but did not receive the required 2/3 vote to convict him or remove him from office.
Criminal prosecution
Per Erwin Chemerinsky, “no case has addressed whether a *sitting President* can be criminally prosecuted.” Criminal indictments considered for Presidents Nixon and Clinton, but they were never issued. Although legal scholars debate this, there really is no precedent on point here.
There is no question, however, that lower officials can be impeached and criminally prosecuted. The Constitution specifically states that an official who is impeached and convicted “shall nevertheless be liable for and subject to Indictment, Trial, Judgment, and Punishment according to law.” Art I, Sec 3, Cl 7. So, the Constitution contemplates criminal process distinct from impeachment. The Supreme Court said, “the framers recognized that most likely there would be two sets of proceedings for individuals who commit impeachable offenses — the impeachment trial and a separate criminal trial. In fact, the Constitution explicitly provides for two separate proceedings. The framers deliberately separated the two forums to avoid raising the specter of bias and to ensure independent judgments.” Nixon v. United States, 506 U.S. 224 (1993).
A word of caution: I have seen *many* reports stating that impeachment is akin to or analogous to an indictment in the criminal context. This is probably a somewhat fair analogy. In my observation, however, this analogy causes more confusion than clarity. I think lawyers understand both terms and see the parallels, but I am very wary of using one legal term as an analogy for another legal term — it just assumes too much understanding and context from the audience. I’ve seen all sorts of incorrect statements made based off this analogy — things like ‘if there is an indictment or grand jury, it skips the House and goes straight to the Senate for impeachment’ or ‘if the House indicts, then it goes to the grand jury.’ So, I don’t think this analogy has a lot of utility for the general population.
Civil Suits
A President has “absolute immunity from damages predicated on his official acts.” Nixon v. Fitzgerald, 457 U.S. 731 (1982). That means the President is not going to be civilly liable for actions he took in office that are in the “outer perimeter of his official responsibility.”
A President may be sued for personal conduct occurring before he took office. Clinton v. Jones, 520 U.S. 681 (1997).
