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Impeachment - History

Impeachment - History

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Impeachment - formal charges of "treason, bribery, or other high crimes and misdemeanors" brought against the President, the Vice President, a Supreme Court justice, or any executive and judicial official. Members of Congress and military officers are not subject to impeachment. The House Judiciary Committee investigates the situation and makes a recommendation to the rest of the House on whether the official should be impeached. The rest of the House votes on the issue and, if the official is impeached, the Senate tries the case. If the official is convicted, he or she is removed from office. Since the ratification of the Constitution, the House of Representatives has impeached 16 federal officials, including 13 federal judges, of whom 7 were convicted by the Senate.

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Here are all the US presidents who have been impeached

Former President Donald Trump in December 2019 became the third president in US history to be impeached and the first president to be impeached twice in January 2021.

Trump now faces his second impeachment trial, beginning February 9, after the Democratic-controlled House voted 232-197 to impeach Trump on a charge of inciting a violent insurrection on the US Capitol on January 6.

Ten House Republicans, including the third-highest-ranking House Republican, Rep. Liz Cheney, joined their Democratic colleagues and voted in favor of Trump's impeachment.

The Senate is made up of 50 Democrats and 50 Republicans, with the Democrats Jon Ossoff and Raphael Warnock of Georgia sworn in on the same day as Biden. A two-thirds majority of 67 senators is required to convict a federal officer.

The Senate can still vote to convict Trump even after he leaves office, and it has the option to bar Trump from holding federal office ever again with a follow-up vote that would require support from only a simple majority. The incoming vice president, Kamala Harris, will be able to cast the tie-breaking 51st vote.

The House impeached Trump on two articles on December 18, 2019. These stemmed from Congress' investigation into whether Trump abused his power by trying to get Ukrainian President Volodymyr Zelensky to investigate Joe and Hunter Biden.

On February 5, the Senate acquitted Trump, voting almost entirely along party lines.

Congress has the power to impeach or remove presidents or other federal officials from office if enough lawmakers find that they have committed "treason, bribery, or other high crimes and misdemeanors."

Three other presidents have faced impeachment proceedings, but only two of those three were impeached.

In 1868, President Andrew Johnson was impeached, charged with breaching the Tenure of Office Act, but the Senate narrowly acquitted him by one vote. In 1974, President Richard Nixon faced an impeachment inquiry, but he resigned before the House could impeach him. In 1998, President Bill Clinton was impeached, but he too was acquitted by the Senate.

Here's how the process went for each of the presidents who were impeached:

The History Of Impeachment Is Bizarre & Hilarious

Amid the chaos and conflict that has developed in the aftermath of this election, one theme has started to pop up among those who oppose Trump: would an impeachment of the new president actually achieve anything? And is impeaching him even possible? The answers to those questions are pretty complicated, and a lot of that is due to the creation of the impeachment process itself, which dates back to the Constitution's formation in the 1780s. We can indeed hold the president to account, but it's not as simple as just throwing them out of the Oval Office and sitting them in a traditional courtroom the decisions about what he or she has to do wrong to deserve their impeachment, and who can decide on the punishment, are labyrinthine and a bit vague.

The history of impeachment is, frankly, a bit bizarre, and involves everything from drunken judges to deliberately lost boats. Our modern interpretation of the process is almost entirely taken from our memories of Clinton's impeachment, but it's been applied throughout U.S. history for a host of different abuses, from alleged bribery to sabotaging a bridge-building project — and impeachment isn't just for presidents.

Though this presidency may end up as one of the impeached ones (it would be only the third in American history), impeachment is not the Horcrux you might think it is. The process itself also has, frankly, had some very odd moments.

The People Who Created The Impeachment Process Thought The Senate Were More Virtuous Than The House

U.S. impeachment was developed at the Constitutional Convention, back in 1787 in Philadelphia. It was a weird gathering anyway it got so bogged down in deciding about electoral colleges that it had to put together 11 people to form a "committee on postponed matters" to get anything done. But the fundamentals of impeachment were hammered out on those tables, informed by the beliefs attendees held about senators, and how smart they'd likely be.

If you haven't been following all the chatter about impeachment, here's how it works: an impeachment resolution begins in the House of Representatives and then, if the House is in agreement about it, it goes onto the Senate to actually proceed to trial. This was part of the whole "separation of powers" thing, where all the bits of government hold the others accountable but there was a reason that the Senate was held to be the place to do the actual dirty work. According to constitutional law expert Professor Michael J Gerhardt in his book, The Federal Impeachment Process: A Constitutional and Historical Analysis, the framers thought that the Senate should be in charge because it was "composed of well-educated, wealthier, more virtuous citizens, who would be capable of making sound judgements." They expected the Senate, he says, to "rely upon its own wisdom, information, stability and even temper." The House of Representatives wasn't full of dullards, but it wasn't regarded as smart or moral enough to make the right decisions.

Figuring Out Which Crimes Merited Impeachment Led To A Massive Argument

Before the Constitutional Convention got together, states had their own methods for defining a problematic politician and getting rid of them. But when the Convention tried to agree on what crimes were deserving of impeachment, it created an almighty argument.

Some thought that impeachment wasn't necessary because hey, term limits exist. Others fiddled with semantics. The final product in the Constitution, "Treason, Bribery, or other high Crimes and Misdemeanors," was the result of a lot of negotiation. It originally included "or Maladministration," but understandably, people thought that was incredibly vague and open to interpretation. (Treason and bribery are both broad categories, too: treason is defined elsewhere in the Constitution as "levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.") In the end, the "high crimes and misdemeanors" bit was taken from English parliamentary law, though, as we'll see, that doesn't really clear things up very well.

Everything From Losing British Ships To Arresting Your Opponents Can Be Grounds For Impeachment

"High crimes and misdemeanors" is more than just the title of the political murder drama I'm definitely going to write they're two of the main bases for impeachment. And they have a hilarious history. When the Constitution's framers nabbed them from English law, they were adopting a term that had been part of the British Parliament's method of dealing with errant politicians since the 1300s. The Constitutional Rights Foundation has a fascinating list of the things that the Parliament had impeached under the heading of "high crimes and misdemeanors":

These days, the actual definition of "high crimes and misdemeanors" is still debated, even though it's not really probable that we'd impeach a president for neglect of his ships. The Constitution Society points out that the term can be applied to stuff that isn't illegal for private citizens, but is seen as a dereliction of duty (or "offended the sense of justice of the people and the court") in a president or politician. And Slate, back in 1999, ran through an entire gamut of definitions, from the deliberately vague to abuse of the state or a demonstration that you were seriously thinking about becoming a dictator. It's a bit like choose your own adventure, except with politicians being offensive.

The 16 U.S. Politicians Who've Been Impeached Are A Very Mixed Bag

Here's something to remember: the House Of Representatives has formally posed the idea of impeachment over 60 times in the nation's history. The rate of actual success, or even of taking the next step, is far lower. Only 16 people have successfully been impeached, and only two of them were presidents: Bill Clinton and Andrew Johnson, both of whom were acquitted. So don't get over-excited about the idea of kicking Trump out via this mechanism, because it's never actually worked like that before. (Richard Nixon chose to resign rather than be impeached over Watergate: the impeachment articles, which accuse him of "obstruction of justice, abuse of power and contempt of Congress," ended with the blistering sentence, "Richard M. Nixon has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice, and to the manifest injury of the people of the United States." Impeachers don't f*ck around.)

The other officials who were impeached were all over the place. One was impeached successfully in 1804 because, as a judge on the New Hampshire Superior Court, he showed clear signs of mental illness and was constantly drunk. Another was removed from office because he'd allegedly received a holiday in Europe from litigants while judging at the Commerce Court a third was kicked out of his job as Secretary of War because, among other things, he'd tried to sabotage the completion of a bridge by demanding more and more elaborate design additions. Some were impeached (and cleared) because of political leanings and disagreements, but in general, the people who've been impeached have been a collection of the mad, the innocent, the immoral, the on-the-make and the merely disagreeable — so the next chapter in the story of impeachment is likely to be just as bizarre as the previous ones.

A History of Presidential Impeachment in the United States

With a redacted version of the Mueller report now in the hands of lawmakers, what will they do with it?

  • There have been only three major impeachment episodes involving the president: Andrew Johnson, Richard Nixon, and Bill Clinton
  • The Republican House tried to remove President Johnson over his handling of reconstruction after the Civil War
  • President Nixon was never impeached, but ultimately resigned

Some Democrats, including presidential candidates, are calling for the start of impeachment proceedings against the president. But some in House Democratic leadership are pushing back, urging lawmakers to take it slow.

Throughout 240 years of United States history, there have been only three major impeachment episodes involving the president: Andrew Johnson, Richard Nixon, and Bill Clinton. What, if anything, can those cases teach us?

Presidential Impeachment in U.S. History

In the 1860s, the Republican House impeached President Johnson amid a fight over his handling of reconstruction after the Civil War. He was never removed from office, however, because there were not enough votes in the Senate to convict him.

A similar scenario played out in the 1990s, when the the Republican-lead House tried to ouster Clinton, a Democrat. Though the House impeached Clinton, the Senate acquitted him.

President Nixon was never impeached, but ultimately resigned amid mounting pressure from Capitol Hill. He feared that both chambers of Congress would agree to remove him in the fallout from Watergate.

Lessons from History

Does this history of impeachment offer any lessons? If anything, it proves that the bar for impeachment is rather high, says Matt Dallek, an associate professor in The George Washington University’s Graduate School of Political Management.

“The forces would really have to align. You would need a moment in which there was bipartisan support,” he said.

Impeachment is inherently a political process. Removing a president requires a two-thirds vote in the Senate, meaning lawmakers need to work across the aisle to make it happen. For example, in the case of Nixon, as the evidence continued to pile up and his poll numbers dropped, some Republicans joined with Democrats in supporting impeachment.

However, Dallek questions whether the Nixon scenario could be repeated in today’s hyper-polarized political environment.

“Nixon did not have Fox News, he didn’t have the same conservative apparatus to defend him,” he said. “Trump in contrast to Nixon has a much more ideological, ideologically homogeneous Republican party to support him.”

Democratic Division on Impeachment

History is also fueling concern among some Democrats, who worry that impeachment could lead to a repeat of the late 1990s, when Congressional Republicans suffered at the ballot box after starting the impeachment fight.

“The fear that Democrats have is that this becomes a partisan brawl, and that it becomes unpopular because a lot of the electorate sees Congress as dysfunctional, as engaging in partisan warfare, and not focusing on the issues that they were elected to focus on: infrastructure, healthcare, jobs,” Dallek said.

This week, House Speaker Nancy Pelosi called for reining in talk of impeachment, saying there are other ways to hold the White House accountable. But there is a clear schism in the party, with some wanting to move ahead on trying to ouster the president.

Andrew Johnson

President Andrew Johnson was impeached by the House and acquitted by the Senate in 1868.

Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson by William H. Rehnquist

Account of the nineteenth-century impeachments of a justice and a president by the author of The Supreme Court (DB27628). Rehnquist, a former chief justice of the United States, uses these two cases to illustrate the distinction between legal and political decisions and between impeachment and conviction. He argues that these same two cases strengthen the separation of governmental bodies as mandated by the Constitution. 1992.
Download DB38303

The Impeachers: The Trial of Andrew Johnson and the Dream of a Just Nation by Brenda Wineapple

An account of the first impeachment of a sitting American president. Describes the events that led to this occurrence, the key figures involved, and the subsequent implications for the country. Unrated. Commercial audiobook. 2019.
Download DB95385

Impeachment: A history lesson

The framers of the Constitution designed impeachment to remedy peculiar situations for which there were no obvious remedies. And so the impeachment of a sitting president has been and remains uncharted territory. Still, the threat of impeachment was successfully wielded against Richard Nixon, who resigned from office to escape it, and impeachment was waged with partisan fury against William Jefferson Clinton, who was acquitted in the Senate not because he’d told the truth about a sexual liaison — he had not — but because he lied about an improper relationship and not about affairs of state.

Today the basis for Donald Trump’s possible impeachment is far more serious than those of Nixon’s covered-up burglary or Clinton’s peccadilloes. In fact, the situation most closely resembles the very first presidential impeachment, that of Andrew Johnson in 1868.

Johnson had succeeded Abraham Lincoln in the White House in 1865, just as the Civil War was ending, with more than 750,000 dead, including the former president. And yet the nation was also lurching toward the fulfillment of its promise to become a free and fair republic where liberty and justice were secured for everyone, including the formerly enslaved.

Not an adroit leader, not a supple thinker, and certainly not a humanitarian, Johnson wasn’t interested. He repeatedly vetoed postwar legislation, imperiled the lives of at least 4 million people and sought to inflame racial tensions, render black citizens defenseless and restore civic power to former slaveholders. He insulted Congress as well as individuals, and he coarsened public discourse. A proud white supremacist, he habitually styled himself a martyr, misunderstood by maniacal fanatics out to get him. That those so-called fanatics might have had the national interest at heart didn’t occur to him.

Still, impeachment? That seemed too radical a step, although there was an effort afoot, a Judiciary Committee hearing testimony and desultory talk that went nowhere.

Then Johnson broke the law. No, he had not asked a foreign government to meddle in national elections he did not withhold aid to a foreign country to secure favors that benefited himself and his own political interests. But he did imperil national security. To prevent Johnson from obstructing justice — he’d been sacking civil officers who protected blacks and white Republicans against violence, particularly at the polls — Congress had passed a Tenure of Office Act, which required Senate approval for the dismissal of any officeholder appointed with its advice and consent.

Presumably, then, Johnson couldn’t fire Secretary of War Edwin Stanton without the Senate’s okay, and the Senate wanted to keep Stanton in office Stanton was in charge of the military, which was defending the right to vote.

Thus when Johnson flouted Congress and flagrantly violated its law, he was in a sense tampering with the coming presidential election. And the office of the presidency.

The dilly-dallying was over. As was the jumbled piling on of Johnson’s crimes. Here was the cause célèbre that could focus attention on one obvious infraction. Now the impeachers could argue forcefully that the Constitution allowed the removal of a President specifically to protect and preserve — and perfect — the presidential office from those who sought to damage or usurp it by bending the law to their own political ends.

The English history of impeachment

Illustrated | Wikimedia Commons, Nenov/iStock

Impeachment is perhaps the most tenuous and insubstantial concept in the legal tradition of the Anglosphere. There are no experts on impeachment, for the uncomplicated reason that impeachment has not succeeded in the terms envisioned by law professors in more than 400 years. As in the United States, where it has failed three times to remove a president from office, so too in Britain has the impeachment of ministers been a largely inconclusive affair. To speak (as the witnesses called to testify on the subject before the House Judiciary Committee did last week) of impeachment as if it were a routine matter, with well-defined parameters and satisfactory legal outcomes, is simply farcical.

Here the centuries-long record of impeachment in Britain, to which the president's opponents have attempted to draw attention recently, is instructive. Its history is one of uncertainty, factionalism, and mob rule.

Impeachment emerged out of the jungles of English common law in the Middle Ages, when it was restricted to peers. By the end of the 15th century it had fallen into disuse, only to be revived under the Stuarts by a series of jealous Parliaments. Twice the House attempted to impeach the Duke of Buckingham, the great favorite of James I, and twice the monarch dissolved the assembly. Here matters would not be allowed to rest, even after James' death. It was asserted by many that the duke's wrongdoing could be laid at the feet of the John Lambe, his private physician. This avowed sorcerer, who for a fee of £50 insisted that he could discover the location of stolen objects in his crystal, was stoned to death by a mob. But still Buckingham's enemies cried:

Let Charles and George do what they can, The Duke shall die like Doctor Lambe.

On August 23, 1628, he was murdered in a Portsmouth tavern.

In the following decade, the Earl of Strafford would make many enemies while serving as lord deputy of Ireland. Upon his being recalled to England, he found himself the subject of impeachment proceedings. These were dropped when, after an exhaustive examination of his conduct, no impeachable offenses could be found. Instead a bill of attainder — the preferred method of procuring judicial assassinations in the previous century under the Tudors — was passed in the Commons. Strafford was imprisoned, but King Charles swore that no harm would befall him, and the Lords seemed reluctant to take up the attainder. Alas, a ludicrous plot by His Majesty's servants to storm the Tower of London and thus extra-judicially restore Strafford to liberty was exposed. The bill passed. The king consulted his bishops, who assured him that he could in good conscience renege on his promise to Strafford, who himself begged Charles to permit his execution for the sake of the kingdom. Among Charles' last words in 1649 were his avowal that his own beheading was divine retribution for "that unjust sentence which I suffered to take effect." One of the first acts taken by Parliament upon the restoration of the monarchy in 1660 was the official expungement of the attainder on the grounds that it had been "treasonable and scandalous."

The unfortunate earl is, so far as I am aware, the last person to have been killed as a direct result of an impeachment inquiry. After his death the process would destroy only fortunes and reputations.

Warren Hastings, the first governor-general of British India, knew Bengali, Urdu, and Persian, among other languages. He wrote the introduction to the first English translation of the Bhagavad Gita and devoted a considerable amount of his time and resources to the study of Sanskrit. After serving for 10 years as governor-general, Hastings returned to England in 1785, where he showered his friends with presents, among them "a certain richly carved ivory bed which the Queen had done him the honour to accept from him." Even before his arrival it had become clear that he would find himself on the receiving end of a great deal of abuse from the Whig minority in Parliament, who accused of him of various misdeeds, including the use of excessive force in a variety of conflicts with minor native rulers.

The question of Hastings's responsibility is one that has never been adequately settled. It is certainly odd to think of a man who once claimed that he "loved India a little more than I do my own country" of being a genocidal maniac. Lytton Strachey, no friend of imperialism, once called Hastings "the best-abused personage in history." Nearly all historians now agree that Hastings was, by the standards of his contemporaries in India, a man of humane and enlightened views, and that his alleged misdeeds were of mostly instrumental importance to the opposition party at home, which sought to embarrass the Tory administration. It took Edmund Burke days to read the articles brought against Hastings in 1787, and the process would drag on until 1795, when he was finally acquitted in the Lords. By then his legal defense had cost him more than £70,000.

A few years later, impeachment was again taken up by the Whigs. Despite the ample evidence of his financial mismanagement — which was ubiquitous in British politics at the time among members of both parties — and his impeachment by the Commons in 1806, the Tory Viscount Melville was also acquitted in the Lords. This was the least ambiguous case in two centuries, but it did not succeed, in part because there was no clear statutory offense that corresponded to his behavior, in part because Melville's own party controlled the balance of power in the upper chamber.

A far less deserving target of similar proceedings was Caroline of Brunswick, the unfortunate wife of King George IV. The two had been married in 1795 at a ceremony during which George, who was then the prince regent, was drunk. He hated his wife and sought to prevent her from becoming queen by any means necessary. Rumors were circulated that she had engaged in adultery and even given birth to an illegitimate child these were investigated and found baseless. (A similar inquiry would not have reached the same conclusion about the conduct of the regent himself, who, among other things, had secretly married the Catholic Maria Fitzherbert in 1795.) When impeachment faltered, legislation was introduced in 1820 to "deprive" Caroline of her title and dissolve her marriage on the grounds that she had "carried on a licentious, disgraceful, and adulterous intercourse" with an Italian commoner named Bartolomeo. The ensuing debate on the floor of the Commons was effectively a trial in which she had no rights. The British people were appalled, and when the so-called Pains and Privations Bill failed in the Lords the windows of newspapers that had supported it were smashed to pieces. When George was finally crowned king the following year, she was not permitted to attend the ceremony. A weeks later she died. His Majesty did not attend the funeral.

Decades later, Lord Palmerston would be the object of the last serious attempt at impeachment in English history. In 1848, his rivals charged that he had entered his country into a secret treaty with the Russian imperial government. The vote failed. In 2004, a Welsh MP announced his intention of impeaching Tony Blair, only to be told by Peter Hain, then the leader of the Commons, that impeachment had "died," perhaps as long ago as 1867, when suffrage was expanded by the Second Great Reform Bill. (Among the handful of supporters of this failed motion was one Boris Johnson.)

Male witches, Irish officials, Urdu scholars, ornate furniture, shadowy diplomatic back channels, manipulation and vilification of the press, men behaving swinishly towards women: This exhausts the modern history of this supposedly well-established trans-Atlantic constitutional process.

What does it tell us about President Trump's increasingly likely impeachment and acquittal? Perhaps it depends upon the view one takes of the relationship between the British and the American understandings of impeachment. If one adopts the (to my mind sensible) position that there is no meaningful connection between an ancient procedure for trying ministers of the crown without obtaining the sovereign's permission and an eponymous but otherwise unrelated provision of the U.S. Constitution of 1788 as it is understood 231 years later, then it is difficult to glean anything of importance from the history of British impeachment proceedings. This is not only because the president's position lies somewhere between that of a British minister and the crown itself — not only the head of the federal government but also the head of state from whom federal legal authority proceeds — but because Britain in the 17th, 18th, and 19th centuries (to say nothing of the 14th) is not the United States in the 21st.

If on the other hand one believes, as the expert witnesses called by the Democrats appear to do, that there are certain immutable principles in the common law that transcend time and space, uniting the cases of Buckingham, Strafford, Hastings, Melville, and Palmerston with those of Andrew Johnson, Richard Nixon, and Trump, then the precedent in both the United States and Britain is clear: Trump ought to be impeached in the House, which numbers the harassment of political foes among its prerogatives, and acquitted in the Senate, which is controlled by Trump's allies. Impeachment, on this understanding, is simply an emotional failsafe mechanism, a release-valve for partisan rage that would otherwise be pent up.

Once more we hear the great machine start. Gears turn, bolts tighten while lubricant is applied we hear a hiss and smoke rises above the din — then it stops. When one stoops to inspect the heap of scrap metal one finds that it was last inspected in 1998. Perhaps it will run better next time.

Impeachment: Case for Conviction — Part 1: Impeachment History

If everything remains on the current path, President Donald J. Trump will be impeached by the House of Representatives by Christmas. Then, Senate Majority Leader Mitch McConnell will have no choice but to bring the articles of impeachment to the Senate for a trial and eventually, a vote to find him guilty or not guilty.

The Republican Party may find the case to con v ict President Trump, a difficult pill to swallow as it could lead to a fracture of the party and destroy any hope to win back seats in the House and retain control of Senate during the 2020 election.

If the Republican Party extends the Senate trial for impeachment too long into 2020 and it convicts Trump, it could lead to a party without candidates ready to take over the reigns for the Presidential election.

The best solution for the party would be for President Trump to resign, Vice President Mike Pence to become President, and a President Pence pardons Trump to end things and allow for the country to move, much like Gerald Ford did with Richard Nixon.

What will it take for the overwhelming majority of Americans and at least 20 Republican Senators to join the Democrats and Independents to convict the President?

A thorough presentation backed by a trail of evidence that illustrates the President’s guilt of “Treason, Bribery, or other high Crimes and Misdemeanors” as the founding fathers wrote in the Constitution.

It is important to understand our Constitution, what our earliest Constitutional scholars thought about impeachment, and previous Presidential impeachment history.

Afterwards, a thorough accounting for what this author believes should be the articles of impeachment will be presented in this second article.

The Constitution on Impeachment:

“The House of Representatives shall choose their Speaker and other Officers and shall have the sole Power of Impeachment.” — U.S. Constitution, Article I, Section 2

“The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.” — U.S. Constitution, Article I, Section 3

Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. — U.S. Constitution, Article I, Section 3

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. — — U.S. Constitution, Article II, section 2

“The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” — U.S. Constitution, Article II, section 4

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury and such Trial shall be held in the State where the said Crimes shall have been committed but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. — U.S. Constitution, Article III, section 2

Alexander Hamilton on Impeachment in Federalist 65 (published March 7, 1788)

“A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”

Meaning of High Crimes and Misdemeanors:

The term “high Crimes and Misdemeanors” was a technical term — again borrowed from British legal practice — that denoted crimes by public officials against the government.

Impeachment History with Andrew Johnson:

On February 24, 1868, three days after Johnson’s dismissal of Stanton, the House of Representatives voted 126 to 47 (with 17 members not voting) in favor of a resolution to impeach the president for high crimes and misdemeanors. Thaddeus Stevens addressed the House prior to the vote. “This is not to be the temporary triumph of a political party,” he said, “but is to endure in its consequence until this whole continent shall be filled with a free and untrammeled people or shall be a nest of shrinking, cowardly slaves.”

One week later, the House adopted eleven articles of impeachment against the president. The articles charged Johnson with:

· Dismissing Edwin Stanton from office after the Senate had voted not to concur with his dismissal and had ordered him reinstated.

· Appointing Thomas Secretary of War ad interim despite the lack of vacancy in the office, since the dismissal of Stanton had been invalid.

· Appointing Thomas without the required advice and consent of the Senate.

· Conspiring, with Thomas and “other persons to the House of Representatives unknown”, to unlawfully prevent Stanton from continuing in office.

· Conspiring to unlawfully curtail faithful execution of the Tenure of Office Act.

· Conspiring to “seize, take, and possess the property of the United States in the Department of War”.

· Conspiring to “seize, take, and possess the property of the United States in the Department of War” with specific intent to violate the Tenure of Office Act.

· Issuing to Thomas the authority of the office of Secretary of War with unlawful intent to “control the disbursements of the moneys appropriated for the military service and for the Department of War”.

· Issuing to Major General William H. Emory orders with unlawful intent to violate federal law requiring all military orders to be issued through the General of the Army.

· Making three speeches with intent to “attempt to bring into disgrace, ridicule, hatred, contempt and reproach, the Congress of the United States”

· Bringing disgrace and ridicule to the presidency by his aforementioned words and actions.

During the trial, an impeachable offense was defined by Mr. Manager Benjamin F. Butler, of Massachusetts: “We define therefore an impeachable high crime or misdemeanor to be one in its nature or consequences subversive of some fundamental or essential principle of government or highly prejudicial to the public interest, and this may consist of a violation of the Constitution, of law, of an official oath, or of duty, by an act committed or omitted, or, without violating a positive law, by the abuse of discretionary powers from improper motives or for any improper purpose.”

While the House impeached Johnson, Senate did not vote to convict.

Impeachment History with Richard Nixon:

The House Judiciary Committee debated five articles of impeachment against Nixon, adopting three from July 27 to July 30, 1974. Nixon resigned on August 9th before the House could vote on impeachment and President Ford granted him a “full, free and absolute pardon” for all crimes that Nixon had committed or may have committed or taken part in President.

(Obstruction) Article I — In his conduct of the office of President of the United States, Richard M. Nixon, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has prevented, obstructed, and impeded the administration of justice, in that:

On June 17, 1972, and prior thereto, agents of the Committee for the Re-election of the President committed unlawful entry of the headquarters of the Democratic National Committee in Washington, District of Columbia, for the purpose of securing political intelligence. Subsequent thereto, Richard M. Nixon, using the powers of his high office, engaged personally and through his close subordinates and agents, in a course of conduct or plan designed to delay, impede, and obstruct the investigation of such illegal entry to cover up, conceal and protect those responsible and to conceal the existence and scope of other unlawful covert activities.

The means used to implement this course of conduct or plan included one or more of the following:

1. making false or misleading statements to lawfully authorized investigative officers and employees of the United States

2. withholding relevant and material evidence or information from lawfully authorized investigative officers and employees of the United States

3. approving, condoning, acquiescing in, and counselling witnesses with respect to the giving of false or misleading statements to lawfully authorized investigative officers and employees of the United States and false or misleading testimony in duly instituted judicial and congressional proceedings

4. interfering or endeavoring to interfere with the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation, the office of Watergate Special Prosecution Force, and Congressional Committees

5. approving, condoning, and acquiescing in, the surreptitious payment of substantial sums of money for the purpose of obtaining the silence or influencing the testimony of witnesses, potential witnesses or individuals who participated in such unlawful entry and other illegal activities

6. endeavoring to misuse the Central Intelligence Agency, an agency of the United States

7. disseminating information received from officers of the Department of Justice of the United States to subjects of investigations conducted by lawfully authorized investigative officers and employees of the United States, for the purpose of aiding and assisting such subjects in their attempts to avoid criminal liability

8. making or causing to be made false or misleading public statements for the purpose of deceiving the people of the United States into believing that a thorough and complete investigation had been conducted with respect to allegations of misconduct on the part of personnel of the executive branch of the United States and personnel of the Committee for the Re-election of the President, and that there was no involvement of such personnel in such misconduct: or

9. endeavoring to cause prospective defendants, and individuals duly tried and convicted, to expect favored treatment and consideration in return for their silence or false testimony, or rewarding individuals for their silence or false testimony.

In all of this, Richard M. Nixon has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States.

Wherefore Richard M. Nixon, by such conduct, warrants impeachment and trial, and removal from office.

Article II — Using the powers of the office of President of the United States, Richard M. Nixon, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in disregard of his constitutional duty to take care that the laws be faithfully executed, has repeatedly engaged in conduct violating the constitutional rights of citizens, impairing the due and proper administration of justice and the conduct of lawful inquiries, or contravening the laws governing agencies of the executive branch and the purposed of these agencies.

This conduct has included one or more of the following:

1. He has, acting personally and through his subordinates and agents, endeavored to obtain from the Internal Revenue Service, in violation of the constitutional rights of citizens, confidential information contained in income tax returns for purposed not authorized by law, and to cause, in violation of the constitutional rights of citizens, income tax audits or other income tax investigations to be initiated or conducted in a discriminatory manner.

2. He misused the Federal Bureau of Investigation, the Secret Service, and other executive personnel, in violation or disregard of the constitutional rights of citizens, by directing or authorizing such agencies or personnel to conduct or continue electronic surveillance or other investigations for purposes unrelated to national security, the enforcement of laws, or any other lawful function of his office he did direct, authorize, or permit the use of information obtained thereby for purposes unrelated to national security, the enforcement of laws, or any other lawful function of his office and he did direct the concealment of certain records made by the Federal Bureau of Investigation of electronic surveillance.

3. He has, acting personally and through his subordinates and agents, in violation or disregard of the constitutional rights of citizens, authorized and permitted to be maintained a secret investigative unit within the office of the President, financed in part with money derived from campaign contributions, which unlawfully utilized the resources of the Central Intelligence Agency, engaged in covert and unlawful activities, and attempted to prejudice the constitutional right of an accused to a fair trial.

4. He has failed to take care that the laws were faithfully executed by failing to act when he knew or had reason to know that his close subordinates endeavored to impede and frustrate lawful inquiries by duly constituted executive, judicial and legislative entities concerning the unlawful entry into the headquarters of the Democratic National Committee, and the cover-up thereof, and concerning other unlawful activities including those relating to the confirmation of Richard Kleindienst as Attorney General of the United States, the electronic surveillance of private citizens, the break-in into the offices of Dr. Lewis Fielding, and the campaign financing practices of the Committee to Re-elect the President.

5. In disregard of the rule of law, he knowingly misused the executive power by interfering with agencies of the executive branch, including the Federal Bureau of Investigation, the Criminal Division, and the Office of Watergate Special Prosecution Force, of the Department of Justice, and the Central Intelligence Agency, in violation of his duty to take care that the laws be faithfully executed.

In all of this, Richard M. Nixon has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States.

Wherefore Richard M. Nixon, by such conduct, warrants impeachment and trial, and removal from office.

Article III — In his conduct of the office of President of the United States, Richard M. Nixon, contrary to his oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives on April 11, 1974, May 15, 1974, May 30, 1974, and June 24, 1974, and willfully disobeyed such subpoenas. The subpoenaed papers and things were deemed necessary by the Committee in order to resolve by direct evidence fundamental, factual questions relating to Presidential direction, knowledge or approval of actions demonstrated by other evidence to be substantial grounds for impeachment of the President. In refusing to produce these papers and things Richard M. Nixon, substituting his judgment as to what materials were necessary for the inquiry, interposed the powers of the Presidency against the the lawful subpoenas of the House of Representatives, thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives.

In all of this, Richard M. Nixon has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice, and to the manifest injury of the people of the United States.

Wherefore, Richard M. Nixon, by such conduct, warrants impeachment and trial, and removal from office.

Impeachment History with Bill Clinton:

Article I — In his conduct while President of the United States, William Jefferson Clinton, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has willfully corrupted and manipulated the judicial process of the United States for his personal gain and exoneration, impeding the administration of justice, in that:

On August 17, 1998, William Jefferson Clinton swore to tell the truth, the whole truth, and nothing but the truth before a Federal grand jury of the United States. Contrary to that oath, William Jefferson Clinton willfully provided perjurious, false and misleading testimony to the grand jury concerning one or more of the following: (1) the nature and details of his relationship with a subordinate Government employee (2) prior perjurious, false and misleading testimony he gave in a Federal civil rights action brought against him (3) prior false and misleading statements he allowed his attorney to make to a Federal judge in that civil rights action and (4) his corrupt efforts to influence the testimony of witnesses and to impede the discovery of evidence in that civil rights action.

In doing this, William Jefferson Clinton has undermined the integrity of his office, has brought disrepute on the

Presidency, has betrayed his trust as President, and has acted in a manner subversive of the rule of law and justice, to the manifest injury of the people of the United States.

Wherefore, William Jefferson Clinton, by such conduct, warrants impeachment and trial, and removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.

Article II — In his conduct while President of the United States, William Jefferson Clinton, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has willfully corrupted and manipulated the judicial process of the United States for his personal gain and exoneration, impeding the administration of justice, in that:

(1) On December 23, 1997, William Jefferson Clinton, in sworn answers to written questions asked as part of a Federal civil rights action brought against him, willfully provided perjurious, false and misleading testimony in response to questions deemed relevant by a Federal judge concerning conduct and proposed conduct with subordinate employees.

(2) On January 17, 1998, William Jefferson Clinton swore under oath to tell the truth, the whole truth, and nothing but the truth in a deposition given as part of a Federal civil rights action brought against him. Contrary to that oath, William Jefferson Clinton willfully provided perjurious, false and misleading testimony in response to questions deemed relevant by a Federal judge concerning the nature and details of his relationship with a subordinate Government employee, his knowledge of that employee’s involvement and participation in the civil rights action brought against him, and his corrupt efforts to influence the testimony of that employee.

In all of this, William Jefferson Clinton has undermined the integrity of his office, has brought disrepute on the Presidency, has betrayed his trust as President, and has acted in a manner subversive of the rule of law and justice, to the manifest injury of the people of the United States.

Wherefore, William Jefferson Clinton, by such conduct, warrants impeachment and trial, and removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.

Article III — In his conduct while President of the United States, William Jefferson Clinton, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has prevented, obstructed, and impeded the administration of justice, and has to that end engaged personally, and through his subordinates and agents, in a course of conduct or scheme designed to delay, impede, cover up, and conceal the existence of evidence and testimony related to a Federal civil rights action brought against him in a duly instituted judicial proceeding.

The means used to implement this course of conduct or scheme included one or more of the following acts:

(1) On or about December 17, 1997, William Jefferson Clinton corruptly encouraged a witness in a Federal civil rights action brought against him to execute a sworn affidavit in that proceeding that he knew to be perjurious, false and misleading.

(2) On or about December 17, 1997, William Jefferson Clinton corruptly encouraged a witness in a Federal civil rights action brought against him to give perjurious, false and misleading testimony if and when called to testify personally in that proceeding.

(3) On or about December 28, 1997, William Jefferson Clinton corruptly engaged in, encouraged, or supported a scheme to conceal evidence that had been subpoenaed in a Federal civil rights action brought against him.

(4) Beginning on or about December 7, 1997, and continuing through and including January 14, 1998, William Jefferson Clinton intensified and succeeded in an effort to secure job assistance to a witness in a Federal civil rights action brought against him in order to corruptly prevent the truthful testimony of that witness in that proceeding at a time when the truthful testimony of that witness would have been harmful to him.

(5) On January 17, 1998, at his deposition in a Federal civil rights action brought against him, William Jefferson Clinton corruptly allowed his attorney to make false and misleading statements to a Federal judge characterizing an affidavit, in order to prevent questioning deemed relevant by the judge. Such false and misleading statements were subsequently acknowledged by his attorney in a communication to that judge.

(6) On or about January 18 and January 20–21, 1998, William Jefferson Clinton related a false and misleading account of events relevant to a Federal civil rights action brought against him to a potential witness in that proceeding, in order to corruptly influence the testimony of that witness.

(7) On or about January 21, 23 and 26, 1998, William Jefferson Clinton made false and misleading statements to potential witnesses in a Federal grand jury proceeding in order to corruptly influence the testimony of those witnesses. The false and misleading statements made by William Jefferson Clinton were repeated by the witnesses to the grand jury, causing the grand jury to receive false and misleading information.

In all of this, William Jefferson Clinton has undermined the integrity of his office, has brought disrepute on the Presidency, has betrayed his trust as President, and has acted in a manner subversive of the rule of law and justice, to the manifest injury of the people of the United States.

Wherefore, William Jefferson Clinton, by such conduct, warrants impeachment and trial, and removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.

Article IV — Using the powers and influence of the office of President of the United States, William Jefferson Clinton, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in disregard of his constitutional duty to take care that the laws be faithfully executed, has engaged in conduct that resulted in misuse and abuse of his high office, impaired the due and proper administration of justice and the conduct of lawful inquiries, and contravened the authority of the legislative branch and the truth seeking purpose of a coordinate investigative proceeding, in that, as President, William Jefferson Clinton refused and failed to respond to certain written requests for admission and willfully made perjurious, false and misleading sworn statements in response to certain written requests for admission propounded to him as part of the impeachment inquiry authorized by the House of Representatives of the Congress of the United States. William Jefferson Clinton, in refusing and failing to respond and in making perjurious, false and misleading statements, assumed to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives and exhibited contempt for the inquiry.

In doing this, William Jefferson Clinton has undermined the integrity of his office, has brought disrepute on the Presidency, has betrayed his trust as President, and has acted in a manner subversive of the rule of law and justice, to the manifest injury of the people of the United States.

Wherefore, William Jefferson Clinton, by such conduct, warrants impeachment and trial, and removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.

President Clinton was impeached by the House and the Senate failed to convict.


Under the U.S. Constitution, the House has the sole power of impeachment (Article I, Section 2, Clause 5), and after that action has been taken, the Senate has "the sole Power to try all Impeachments" (Article I, Section 3, Clause 6). Trump was the third U.S. president to face a Senate impeachment trial, after Andrew Johnson and Bill Clinton. [10] Trump is the only federal official to be impeached twice. [11]

The Senate impeachment trial procedures are set forth under rules adopted in 1986, [12] [13] although specific rules are adopted for each trial, with the Senate majority leader exercising considerable power in setting the procedures. [13]

House impeachment Edit

On January 11, 2021, U.S. Representatives David Cicilline, Jamie Raskin, and Ted Lieu introduced an article of impeachment against Trump, charging him with "incitement of insurrection" in urging his supporters to march on the Capitol building. The article stated that Trump had committed high crimes and misdemeanors by making several statements that "encouraged – and foreseeably resulted in – lawless action" that interfered with Congress' constitutional duty to certify the election. It said he had "threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of Government" in a way that rendered him "a threat to national security, democracy, and the Constitution". [14] [15] A total of 218 of the 222 House Democrats co-sponsored the article of impeachment, assuring its passage. [16]

The House passed the article of impeachment on January 13, 2021, by a 232–197 vote. All 222 Democrats voted to impeach, joined by 10 Republicans (including House Republican Conference chairwoman Liz Cheney). Four Republicans did not vote, and the other 197 Republicans voted no. [17] [18]

Trial delay and planning Edit

In the days following Trump's second impeachment, Senate Majority Leader Mitch McConnell (R-KY) argued that, because the Senate was in pro forma sessions until January 19, it could not take on any business without the unanimous consent of its members. According to Senate rules, once articles of impeachment are presented to the Senate, the Senate trial must begin the next day. Had the article of impeachment been immediately transmitted to the Senate, Trump's trial thus would have begun on Inauguration Day, after Joe Biden was sworn in. [19] [20]

Senate Minority Leader Chuck Schumer (D-NY) called on McConnell to bring the Senate back into session immediately after the House transmitted the article of impeachment, and also to advance the confirmation process for Biden's cabinet nominees so that the incoming administration's team would be in place on day one. [21] Some, including House Majority Whip Jim Clyburn (D-SC), initially suggested that the House might transmit the article of impeachment to the Senate at a later date (possibly after Biden's first 100 days as president), giving the Senate time to consider Biden's legislative program and confirm his nominees. [20] [22] [23] However, House Democrats opposed a delay, stating that Trump remained a danger while he was in office, and House Majority Leader Steny Hoyer (D-MD) said on January 14 that the article of impeachment would be transmitted to the Senate without delay. [22]

After the House impeached Trump, President-elect Biden stated, "I hope that the Senate leadership will find a way to deal with their constitutional responsibilities on impeachment while also working on the other urgent business of this nation." [22] Biden said his priority is enacting a new stimulus bill and rebuilding the economy. [24] He discussed with McConnell the possibility of "bifurcating" the Senate calendar, allowing the trial to proceed while also allowing other business (such as nominations and legislation) to move forward without delay. [22] Under this plan, the Senate could split its days between the trial and other business, rather than having all its time consumed by the trial. [24] [25] Former Senate Parliamentarian Alan Frumin said that Senate rules would permit such a course. [22] McConnell told Biden that he would consult with the Senate parliamentarian. [26] Schumer, who would replace McConnell as Senate majority leader, said that a Senate trial could begin immediately. [22]

Law professor Ronald Krotoszynski wrote that the Senate could speed up impeachment proceedings (completing the process in a few days, rather than a few weeks) through a process akin to civil summary judgment. This would be permissible under the Constitution, which specifies that the Senate must "try" articles of impeachment and vote to convict (remove) by a two-thirds majority, but allows the Senate to set its own trial rules or procedures, as reaffirmed by the U.S. Supreme Court in Nixon v. United States (1993). [27]

On January 22, 2021, it was announced that House Speaker Nancy Pelosi would transfer the article of impeachment to the Senate on January 25, with the Senate trial expected to be held during the week of February 8. [28]

Impeachment trial of a former president Edit

A Congressional Research Service report concluded "that while the matter is open to debate, the weight of scholarly authority agrees that former officials may be impeached and tried." [4] Ahead of the trial, 150 legal scholars from across the political spectrum published a letter affirming "that the Constitution permits the impeachment, conviction, and disqualification of former officers, including presidents." [29] Law professors Laurence H. Tribe and Stephen I. Vladeck argued that because removal from office is only one of the two possible consequences of a conviction (the other being disqualification from holding public office), the purpose of the trial is not nullified if the impeached person no longer holds public office. [30] [31] Gregg Nunziata, a former Republican lawyer for the Senate Judiciary Committee, similarly noted that because impeachment power includes the power to disqualify the person from federal office for life, allowing officeholders to evade this by resigning would render "this important punishment . a nullity." [32] Leading conservative lawyer Charles J. Cooper agreed, writing in the Wall Street Journal the weekend before the trial that there is no Constitutional prohibition against a post-presidency trial. [33] [34] Cardozo School of Law constitutional law professor Kate Shaw argued that "drafting history, impeachment practice, and basic constitutional design all point clearly in favor of the constitutionality of trying an ex-president." [32] Legal scholar Brian C. Kalt, who has published research about late impeachments, stated, "In multiple cases, the House and Senate have proceeded as though they can impeach and try people who have already left office, and in one case the Senate took a specific vote to that effect." [32]

There is precedent for impeaching and trying a federal official who already left office ("late impeachment"). [32] In 1797, the House impeached Senator William Blount for conspiracy. The Senate tried him, even though it had already expelled him. [32] In 1876, Secretary of War William W. Belknap resigned hours before the House voted for his impeachment on charges relating to his role in the trader post scandal, and the Senate proceeded to hold a trial, ruling by a vote of 37–29 that it did have jurisdiction after a challenge by Belknap's attorneys. [35] [36] [37]

Before the trial began, most Republicans in the Senate argued that the Senate lacks the constitutional authority to conduct an impeachment trial of a former president. [4] This argument was also made by former federal appellate judge J. Michael Luttig, [38] as well as one of Trump's lawyers at his first impeachment trial, Harvard Law School professor emeritus Alan Dershowitz, [39] and law professor Jonathan Turley, who testified in Trump's favor at his first trial. [4]

Presiding officer Edit

Senate Majority Leader Chuck Schumer said that Chief Justice John Roberts had declined to preside over the trial because he believed that the chief justice only presided when the current president was tried. [40] [41] Patrick Leahy, president pro tempore of the Senate, presided over the trial, [42] [43] in place of Vice President Kamala Harris, the ex officio president of the Senate, who might have involved herself if any tie-breaking votes were needed. [44]

Prior to the selection of Leahy as presiding officer, there was debate as to who constitutionally should hold that role. Article I, Section 3, Clause 6 of the U.S. Constitution states that the Senate has the sole power to try impeachments and that "When the President of the United States is tried the Chief Justice shall preside." [45] [46] Various commentators questioned whether the chief justice must preside over the trial of former presidents. [45] [47] Princeton University political scientist Keith Whittington noted that the issue is "unsettled, completely without precedent, and unspecific in existing Senate rules and precedents." [47] The University of North Carolina law professor Michael Gerhardt, an expert on impeachment, said he believed that if the impeachment trial began after Trump left office, Harris, as opposed to Roberts, would preside. [45] Conversely, University of Texas law professor Steve Vladeck said that "the question should be whether the impeached officer was President at the time of impeachment", and thus that Roberts should preside even after Trump left office. [45] Vladeck pointed out that "if Trump resigned (or his term ended) mid-trial, it would be more than a little odd for the Chief Justice to give way to the Vice President." [47] Georgia State University law professor Neil Kinkopf argued that "a trial of a President (even a former President) is a momentous event and having the Chief Justice preside seems more congruent with, or more fitting of, the occasion." [47]

House managers Edit

On January 12, the day before the House debated the article of impeachment, Pelosi named nine Democratic representatives to be managers in the Senate trial: Raskin (lead manager), Cicilline, Lieu, Diana DeGette, Joaquin Castro, Eric Swalwell, Joe Neguse, Madeleine Dean, and Stacey Plaskett. [48] The managers were chosen for their expertise in constitutional law, civil rights, and criminal justice. Raskin is a former constitutional law professor at American University Lieu is a former military prosecutor in the United States Air Force Cicilline is a former public defender Swalwell is a former prosecutor in California DeGette is a former civil rights attorney and Castro, Neguse, Dean, and Plaskett are all former lawyers in private practice. [49]

Democrats relied on many of the same lawyers and aides who helped assemble the first impeachment trial case, including Susanne Sachsman Grooms from the House Oversight and Reform Committee, and Aaron Hiller, Arya Hariharan, Sarah Istel and Amy Rutkin from the Judiciary Committee. The House also temporarily called back Barry H. Berke, a seasoned New York defense lawyer, to serve as chief counsel, along with Joshua Matz, a constitutional expert. [50]

Trump counsel Edit

It was initially unclear who would be on Trump's legal team, as numerous prominent law firms had refused to represent him. The Lincoln Project had publicly pressed law firms not to do so. [39] Law & Crime reported that "essentially all respectable law firms and attorneys" were distancing themselves from him. [51]

Rudy Giuliani, as Trump's personal lawyer, was left out of early conversations about the upcoming defense, and Trump ordered his aides to stop paying Giuliani. [52] [53] [54] On January 18, one day after meeting with Trump, Giuliani said he would not represent him, stating, "Because I gave an earlier speech [at the rally], I am a witness and therefore unable to participate in court or in the Senate chamber." [55] Similarly, John Eastman, who joined Giuliani on stage at the January 6 rally, was initially considered for a role on Trump's defense team, but he withdrew because his role at the rally made him a witness. [56] Dershowitz, Pat Cipollone, and Jay Sekulow, who helped lead Trump's defense effort during his first impeachment trial, also declined to represent him. [57] Other lawyers who defended Trump during his first impeachment trial, including former Florida Attorney General Pam Bondi, Eric Herschmann, Patrick Philbin, and Marc Kasowitz, said they were not interested in joining the defense for the second trial. Some of them privately expressed their belief that Trump's actions were indefensible. [39]

Trump and congressional Republicans considered designating two of Trump's most vociferous defenders in Congress – Jim Jordan and Elise Stefanik – to represent him, even though neither is an attorney. [51] [a] Congressman Matt Gaetz suggested he would resign his position in Congress to represent Trump if asked to be part of the legal team. [58] [59] Both Jordan and Stefanik had voted to reject electoral votes for Biden, even after the president's supporters stormed the Capitol on January 6.

In late January, Trump formed a defense team of five attorneys to be led by Butch Bowers, a South Carolina-based lawyer who helped former South Carolina governor Mark Sanford fight off being removed from office and who also helped former South Carolina Governor Nikki Haley during an ethics investigation. [57] [60] Senator Lindsey Graham of South Carolina had arranged Trump's hiring of Bowers. [61] Subsequently, four more lawyers were named to the defense team under Bowers: Deborah Barbier, a Columbia, South Carolina, criminal defense lawyer and former federal prosecutor who has represented high-profile, controversial clients former acting U.S. Attorney General Johnny Gasser criminal defense attorney Greg Harris and Josh Howard of North Carolina. [62] [63] [64] [65] However, the defense attorneys all withdrew on January 30, one week before the trial. [65] [66] [67] The departures occurred after Trump clashed with his attorneys on strategy and fees. Trump wanted to focus on his false claims that the election was "stolen" from him, in contrast to the lawyers, who insisted on focusing on the legality of convicting a former president. Trump was unhappy with the fees and expenses estimated by the lawyers. [65] [66] [68] None of the lawyers had been paid any advance fees nor had they signed letters of intent. [66]

On February 1, after the collapse of his earlier legal team, Trump announced that David Schoen and Bruce Castor would be his new defense lawyers. [69] [70] Pennsylvania attorneys Michael van der Veen and William J. Brennan joined Schoen and Castor as part of the presentation team. [71] [72]

Senators' positions on conviction during trial
according to USA Today on February 9, 2021 [73]
Party Support
No official
Democratic 38 0 10
Republican 5 35 10
Independent 2 0 0
Total 45 35 20

On whether to hold a trial Edit

Senator Richard Blumenthal (D-CT) said: "The evidence is Trump's own words, recorded on video. It's a question of whether Republicans want to step up and face history." [74] Senator Kirsten Gillibrand (D-NY) said, "This is a very simple allegation. It is incitement to insurrection. We could conduct a trial in a concise amount of time because the evidence that's needed is pretty direct." [75] In the run-up to the trial, a number of Republican senators opposed holding a trial. [76] [77] Republican Senator Rand Paul of Kentucky continued to make false claims of election fraud. [78] [79] Other Senate Republicans, such as Marco Rubio of Florida, contended that a Senate trial would be too divisive and that it would be "arrogant" for the Senate to exercise its power to bar Trump from holding office in the future. [80] [81]

On whether to vote to convict Edit

Senate Democrats favored the conviction of Trump, stating that the evidence was clear and straightforward. Assuming all Democratic senators (and the two independent senators caucusing with the Democrats) had voted to convict Trump, 17 Republican senators would have needed to vote to secure the two-thirds majority for conviction. If Trump had been convicted, then the Senate could have disqualifed him from holding any federal office by a simple majority vote. [75] [74] On February 9, 45 senators (38 Democrats, 5 Republicans, and 2 independents caucusing with the Democrats) supported conviction, 35 senators (all Republican) opposed conviction, and 20 senators (10 Democrats and 10 Republicans) had not released an official statement. This implied that to convict Trump with the required two-thirds majority, some of the Republican senators who said they opposed conviction would have needed to change their minds, either by voting to convict or by not appearing for the vote. [73] Senator Lindsey Graham (R-SC) worked to persuade other Republicans to vote against conviction. [74] In January, Republican Senator Mitch McConnell, the former Senate Majority Leader, reportedly told senators their decision on whether to convict the outgoing president would be a "vote of conscience" [82] and told colleagues he was undecided whether he himself would vote to convict. [83] He later stated on the Senate floor that President Trump "provoked" the mob that stormed the Capitol. [84] However, McConnell announced on the morning of February 13 that he would vote to acquit Trump. [85] [86]

Opening ceremonies Edit

Article I, Section 3, Clause 6 of the U.S. Constitution states that "The Senate shall have the sole Power to try all Impeachments." Per the Senate's impeachment rules adopted in 1986, the submission of the articles to the Senate initiated the trial. [12] Speaker Pelosi signed the article of impeachment on January 13, 2021. [87] The article was formally transmitted to the Senate on January 25, 2021. [88] On January 26, the House impeachment managers, accompanied by the clerk of the House and the acting House sergeant at arms, conducted the ceremonial procession from the House to the Senate (across the National Statuary Hall and the Capitol rotunda) to formally deliver the article of impeachment, triggering the trial. [89] [90] Raskin, the lead House impeachment manager, read the article to the Senate. [89]

Senate President pro tempore emeritus Chuck Grassley (R-IA) swore in the chamber's presiding officer, Senate President pro tempore Patrick Leahy (D-VT), [91] who then swore in all senators as jurors. Each senator then signed the oath book. Each was required to take the following oath or make the affirmation: [91] [12] [92] [3]

Oath: I solemnly swear that in all things appertaining to the trial of the impeachment of Donald John Trump, then, now former, President of the United States, now pending, I will do impartial justice according to the Constitution and laws: So help me God.

Affirmation: I affirm that in all things appertaining to the trial of the impeachment of Donald John Trump, then, now former, President of the United States, now pending, I will do impartial justice according to the Constitution and laws.

The acting Senate sergeant-at-arms, Jennifer Hemmingway, then read aloud the following proclamation to mark the beginning of the proceedings:

Hear ye! Hear ye! Hear ye! All persons are commanded to keep silent, on pain of imprisonment, while the House of Representatives is exhibiting to the Senate of the United States articles of impeachment against Donald John Trump, the now former President of the United States.

The summons to Trump was issued the same day. [91]

Rand Paul's point of order to dismiss Edit

On January 26, Republican Senator Rand Paul forced a vote to dismiss the impeachment charge, on the basis that it was unconstitutional to try a past president. The motion was defeated 55–45, with all Democrats, both the independents, and five Republicans (Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah, Ben Sasse of Nebraska, and Pat Toomey of Pennsylvania) voting against the motion. [3] [4] The vote was seen as a "test vote" and was viewed as a strong indication that the Senate would not reach the two-thirds majority required to convict Trump. [4] [93]

Trial memoranda and responses Edit

Under an agreement between Chuck Schumer and Mitch McConnell, the pre-trial briefing schedule was set. [91]

House's brief, Trump's answer, House's replication Edit

The House of Representatives, through the nine Democratic impeachment managers, filed an 80-page pretrial brief on February 2. The detailed brief stated that Trump was "singularly responsible" for the violent attack on the Capitol on January 6, citing his preceding campaign to undermine democracy and overthrow the election, and argued that acquitting Trump and failing to disqualify him from future office would gravely harm the nation, stating: "President Trump has demonstrated beyond doubt that he will resort to any method to maintain or reassert his grip on power. A president who violently attacks the democratic process has no right to participate in it." [96]

The impeachment managers argued that the expiration of Trump's term, and his new status as a private citizen, did not present a bar to Senate trial and conviction, writing: "There is no 'January exception' to impeachment or any other provision of the Constitution. A president must answer comprehensively for his conduct in office from his first day in office through his last. [96] and that it was "unthinkable" that the Framers of the Constitution would have left the country "virtually defenseless against a president's treachery in his final days, allowing him to misuse power, violate his Oath, and incite insurrection against Congress and our electoral institutions simply because he is a lame duck." [97] The House brief stated that "if provoking an insurrectionary riot against a Joint Session of Congress after losing an election is not an impeachable offense, it is hard to imagine what would be." [98]

Trump's lawyers filed a 14-page response to the article of impeachment later the same day. [98] Trump's lawyers did not explicitly embrace Trump's false claims of a "rigged" election, [98] but nevertheless echoed them, asserting that "insufficient evidence exists upon which a reasonable jurist could conclude that the 45th president's statements were accurate or not, and he, therefore, denies they were false." [97] Trump's lawyers also argued that the impeachment proceeding is legally "void" because Trump is no longer president. [99] [100] [98] The brief asserted that prior to the January 6 riots, Trump had "exercised his First Amendment right under the Constitution to express his belief that the election results were suspect". [98]

The House had predicted that Trump would use the First Amendment for his defense, which they countered in their brief that the First Amendment was not applicable to an impeachment trial, writing: "The First Amendment protects private citizens from the government it does not protect government officials from accountability for their own abuses in office." [99] Quoting the standard established in Brandenburg v. Ohio (1969), a landmark decision of the U.S. Supreme Court interpreting the First Amendment, [94] the House added that "speech is not protected where it is 'directed to inciting or producing imminent lawless action and is likely to incite or produce such action." [99] Nearly 150 leading First Amendment lawyers and constitutional scholars from across the political spectrum found Trump's First Amendment assertion "legally frivolous" and not a viable defense against conviction. [101] [102]

The House submitted its replication to Trump's answer on February 8. [95]

Trump's brief, House's reply Edit

Trump, through his attorneys Bruce L. Castor Jr., David Schoen, and Michael T. van der Veen, [105] [106] submitted a brief asserting that Democratic leadership in the House were engaging in a "selfish attempt" to capitalize on the storming of the Capitol and its aftermath. They argued that instead of healing the nation or prosecuting lawmakers who participated in the riot, they instead intend "to callously harness the chaos of the moment for their own political gain." [106] Unusual for legal documents, Trump's lawyers invoked partisan rhetoric, writing that Democrats suffer from "Trump Derangement Syndrome" sought to "silence a political opponent and a minority party" as part of a years-long effort and "hunger for this political theater" that would be "a danger to our Republic [sic] democracy and the rights that we hold dear." [107]

Seeking to distance Trump from his supporters who assaulted the Capitol, his lawyers wrote that "the people who criminally breached the Capitol did so of their own accord and for their own reasons, and they are being criminally prosecuted." [107] Trump's lawyers, citing discredited sources such as the conspiracy theorist The Gateway Pundit website, also falsely claimed in the brief some elements of the Capitol insurrection consisted of anti-Trump rather than pro-Trump figures. [107] [108] The brief also denies that Trump took no steps to halt the violence, described him as "horrified" by the scene and asserting that there was a "flurry of activity" inside the White House constrained by "complex procedural elements" [107] this revisionist account [109] is contradicted by the actual sequence of events on January 6, when Trump initially ignored requests for him to restrain the mob, and was described by multiple Trump administration officials and others in contact with him on that day as delighted at the halting of the electoral vote count. [109] [110]

Trump's lawyers argued that Trump did not incite the rioters and that his comments and rhetoric about fighting was metaphorical rather than a call for violence. [106] They contended that Trump, in the rally preceding the assault on the Capitol, used the term fight in "in the figurative sense" and not "to encourage acts of violence." [106] Trump's lawyers also described some of Trump's acts, including a phone call in which Trump pressured Georgia Secretary of State Brad Raffensperger to "find" additional votes for him to overturn Biden's victory in Georgia, as merely political. [107] Trump's lawyers also repeated their free-speech argument, arguing that he could not be convicted due to the First Amendment [107] a minority of legal scholars believe that the First Amendment applies in the impeachment context. [111]

The brief makes 15 references to a 2001 article on impeachment by prominent legal scholar Brian Kalt, asserting that he had concluded that impeaching a former president is unconstitutional. Kalt replied that Trump's lawyers made "flat-out misrepresentations" of his work and that he had actually concluded that there is a "solid basis" for post-presidential impeachments, having noted and rejected contrary arguments. [112]

In an unprecedented maneuver in American history, the Trump defense team declared that Trump would, if convicted by the Senate, attempt to overturn the verdict. Trump's lawyers say the conviction would be "unauthorized" and "non-binding" – and that if Trump runs for president again, it "would be challenged in a court of law". [107] Given Nixon v. United States, it is unclear whether or to what extent a challenge to a Senate impeachment conviction would be justiciable. [111] The Supreme Court case had unanimously determined that the question of whether the Senate had properly tried an impeachment was a political question and could not be resolved in the judicial branch. [113]

The House submitted its reply memorandum on February 9, 2021. [91] [104]

Trump declines invitation to testify Edit

In a letter to Trump attorneys on February 4, lead impeachment manager Jamie Raskin invited Trump to testify (and be subject to cross-examination) before or during the impeachment trial the House impeachment managers argued that his testimony was needed after he disputed the House's allegations that he incited the insurrection at the Capitol. [115] The letter stated that Trump's refusal to testify would support "a strong adverse inference" against Trump. [115] The House's letter noted that there was no barrier to a former president giving testimony (and noted that Presidents Gerald Ford and Bill Clinton had testified in office, and the Supreme Court held in Trump v. Vance (2020) that Trump was not immune from legal process while serving as president). [116]

Trump's lawyers Castor and Schoen responded to Raskin the same day in a terse letter declining the invitation. [115] In their response, they called the House's request for Trump's testimony "a public relations stunt" rejected the implication of adverse inference for refusing to have Trump testify said that the House "cannot prove" its allegations called the impeachment trial a "unconstitutional proceeding" and stated that it is too serious "to try and play these games". [117] [118] [119]

The House impeachment managers signaled that they would not subpoena Trump's testimony, stating that there was ample other evidence (including video evidence) that supported his guilt. [120] Raskin stated that Trump's "immediate refusal to testify speaks volumes and plainly establishes an adverse inference supporting his guilt." [120]

Prosecution Edit

In preparation for the trial, House Democrats built a detailed case against Trump, emphasizing what Trump knew in advance of the attack on the Capitol on January 6 and the effect of Trump's words and actions on his rioting supporters, with the goal of showing that Trump "summoned the mob, assembled the mob, and lit the flame of this attack". [121] In a notable departure on strategy, the managers declined to discuss the logistics of their case, whereas in the previous impeachment trial they had engaged in numerous communication platforms to advance their position to the public. The managers also sought to apply the lessons learned in the last impeachment trial: not antagonize Republicans, use lots of videos, and make succinct arguments. [50] [122] The managers prepared to conclude in a week, forgoing witnesses as they believed it would be unnecessary and hinder Biden's priorities on passing legislation and confirming nominees. [123] The managers intended to use the evidence collected in FBI affidavits charging hundreds of the Capitol insurrectionists, many of whom cited Trump's comments as permission to storm the Capitol. On certain filings, Trump is described as a "de facto unindicted coconspirator" for the Capitol riots and the driving force behind the breach, according to Proud Boys organizer Ethan Nordean. [107] Accordingly, the House was reported to present their case like a "violent crime criminal prosecution." [124]

House impeachment managers and the staff, aided by the law firm Debevoise & Plimpton, compiled audio and video footage of Trump's rally and the ensuing attack on the Capitol, as well as details about the injuries sustained by police. [121] [125] [126] The managers planned to rely heavily on video and offer an emotionally charged presentation, including numerous statements from Trump and state officials throughout the summer undermining the election including the audio of the Trump–Raffensperger phone call focusing on overturning the Electoral College vote count and juxtaposing Trump's remarks, statements, and conduct on along with storming of the Capitol. [50] [123] [127] [125] [122] [128]

According to The New York Times, the managers were also concerned about implicating Republican lawmakers who entertained the president's claims of election fraud, notably those who questioned and objected to the 2021 Electoral College vote count, as well as in the case of Ted Cruz and Josh Hawley, played a role in the Capitol storming. The managers sought to make clear that it is not his party but Trump himself who is on trial, so as to not alienate the GOP senators. [129] [50]

Defense Edit

Trump's defense team indicated that they would present their opening arguments in one day. Bruce Castor, David Schoen, Michael van der Veen and William J. Brennan were all expected to speak. [130] Trump previously announced that he would not testify for the impeachment trial. [131]

Castor and Schoen indicated that they intend to mount a largely technical defense, contending that the Senate lacks jurisdiction to judge a former president after he has left office because the Constitution does not explicitly say it can, giving Republicans an exit from judging Trump's conduct. Castor and Schoen also plan to deny that Trump incited the violence or intended to interfere with Congress’s formalizing of Biden’s victory, asserting that his false claims that the election was "stolen" are protected by the First Amendment. Castor told Fox News that he would also rely on video, including the instances of riots and looting that occurred in the Black Lives Matter protests in Portland and 2020 racial unrest in American cities, and the Democrats' rhetoric to the unrest, as an example of hypocrisy. [50] [132] [128] The attorneys planned to use clips showing Democratic leaders using similar language to Trump's, including one of Schumer outside the U.S. Supreme Court, saying "I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay the price. You won't know what hit you if you go forward with these awful decisions," referring to Supreme Court Justices Neil Gorsuch and Brett Kavanaugh. [133] They further plan to argue that Democrats glorified violence by showing film of the January 6 riot. [130]

On the evening before the defense's opening arguments, Senators Lindsey Graham, Ted Cruz, and Mike Lee were seen going into a room that Trump's lawyers were using to prepare for their arguments. Cruz downplayed the meeting as an opportunity to "share [their] thoughts" about the defense's legal strategy. When reporters confronted Schoen on the appropriateness of impartial jurors consulting with the defense team, he claimed that the trial did not have "any semblance of due process whatsoever". [134]

On February 8, Schumer and McConnell reached an agreement on the procedural resolution for the trial, giving the impeachment managers and Trump's lawyers up to 16 hours each to present their cases and creating the option for a debate and vote to call witnesses if the House impeachment managers sought it. Schumer announced that the trial rules had been agreed to by Senate Republican and Democrats, as well as the House managers and Trump's legal team. [136] Trump's attorney David Schoen, who is of Jewish faith, originally requested a pause of the trial for the Sabbath, starting on the evening of Friday, February 12, and for the trial to resume on Sunday, February 14. [136] [137] Senate Majority Leader Chuck Schumer and other Senate leadership agreed to this request, but Schoen later withdrew this request, saying that other Trump defense lawyers could continue the trial during this period. [138]

The Senate voted, 89–11, to adopt the procedural rules for the trial on February 9, and the trial started with a four-hour debate on the constitutionality of the trial, then the Senate voted at a simple majority threshold to affirm the proceedings' constitutionality, 56-44. [139] [136]

In a two-hour presentation on February 9, the House managers argued that the Senate has jurisdiction to try the impeachment of Trump. [96] Castor opened the defense argument with what many criticized as a rambling 48-minute presentation. [140] [141] [142] He argued that the impeachment was politically motivated, and unnecessary because voters had already been "smart enough" to vote Trump out of office and, in doing so, explicitly acknowledged Biden had won a free and fair election. [143] [144] [145] Raskin played video footage of the Capitol storming and Trump's rhetoric to highlight the consequences if presidents could commit impeachable offenses in their last month without constitutional accountability. [124]

The statement that Biden won the election was seen to have undercut both their arguments in pre-trial briefs of Trump's repeated false claims that the election was fraudulent, stolen, and rigged and accordingly his speech on January 6 was justified because he believed the election was fundamentally "suspect." Trump had initially made clear to advisers that he did not want his lawyers saying that Biden won the election fairly, even if it was not their main focus at the trial. [145] Accordingly, Trump was reported to be very displeased with Castor's performance. [146] [147] [148] Castor's argument was widely criticized for numerous bizarre and incoherent statements, such as "Nebraska, you're going to hear, is quite a judicial-thinking place." [149] Alan Dershowitz stated, "There is no argument. I have no idea what he's doing." [150]

Following the four-hour debate where both sides presented arguments on whether the trial was unconstitutional because Trump was no longer president, the Senate voted 56–44 that the impeachment trial was constitutional. The original five Republican senators voting with Democrats in the Rand Paul point of order voted in favor, along with Bill Cassidy (R-LA) who in a post-interview used adjectives of focused, organized, and compelling to describe the case brought. [151] A simple majority was required to proceed. The lack of Republican support to proceed with the trial was interpreted as indicating an increased likelihood of Trump's acquittal. [152] Ted Cruz, who voted against the constitutionality of the trial, told Fox News the same day that he believed it was constitutional but not required. [153]

Vote on the constitutionality of the trial
Yes No
Democratic 48 0 0
Republican 0 6 44
Independent 0 2 0 0
Totals 56 44
Constitutional [154]
Roll call votes on the constitutionality of the trial [155]

On February 12, a group of 199 legal experts, including prominent conservative lawyers Charles Fried, Stuart M. Gerson, Paul Rosenzweig, and Peter Keisler issued a letter, saying that because Trump's jurisdictional challenge had failed, the Senate had an obligation to vote on the merits: "The former President chose to raise a jurisdictional argument in a motion to dismiss the trial. This body, exercising its considered judgment, determined that the Senate does have jurisdiction to try this case and so resolved the issue. . Now that the Senate, as a collegial body, has ruled on the jurisdictional question, individual Senators should respect and honor that determination of the Senate as a body, even if they might have disagreed with it as an initial matter." [156] The letter-writers echoed an argument the lead House impeachment manager Jamie Raskin had made the preceding day: (that the February 9 Senate vote definitively established constitutional jurisdiction and obliged each Senator to vote "on the facts of what happened") and contradicted the stance of Senate Republicans who said they would vote against convicting Trump on the procedural ground that he was no longer president. [156]

Prosecution Edit

On February 9, Raskin described the scene in the House during the invasion, with people phoning their loved ones to say goodbye, and "the most haunting sound I ever heard" – people pounding on the door like a battering ram. Regarding the constitutionality of trying Trump when he was no longer in office, he urged senators not to create a "January exception" to a president's accountability. [157]

On February 10, the impeachment managers began to present their case. They presented new footage of the attack, including police body camera footage. Citing this, Plaskett revealed that rioters came within 100 feet of where Vice President Pence was sheltering with his family, and raised the point that a gallows was constructed outside the capitol where rioters chanted "Hang Mike Pence." Citing the possession of a 950,000-volt stun gun by the man who was photographed with his feet on Pelosi's desk, as well as other evidence, Plaskett argued that the rioters intended to murder the speaker of the House. Plaskett stated that lawmakers were put in danger because of Trump's speeches and tweets. [158] She cited witness testimony from arrested rioters who said that anyone they got their hands on they would have killed. "They were talking about assassinating the vice president of the United States," she said. "They did it because Donald Trump sent them." [159]

The impeachment managers' presentation concluded on February 11. Diana DeGette argued that statements of rioters made "before, during and after the attack make clear the attack was done for Donald Trump, at his instructions, and to fulfill his wishes." [160] Ted Lieu argued that Trump demonstrated no remorse after the attack. [161]

Mike Lee's motion to strike Edit

Immediately after the end of the first day of opening arguments, Senator Mike Lee raised an objection. [162] He moved to strike a portion of the prosecution's presentation in which they described Trump's telephone calls to him and Senator Tommy Tuberville, claiming that their description of the calls was untrue. This drew much confusion due to Lee's spokesperson and Tuberville confirming the calls from Trump. Despite the perplexity of the situation, Rep. Jamie Raskin, the lead impeachment manager, eventually agreed to Lee's request calling it "much to do about nothing." [162] [163] [164]

Defense Edit

On February 12, Trump's counsel Castor, Schoen, van der Veen and Brennan presented their opening arguments. [134] Van der Veen called the impeachment article an "unconstitutional act of political vengeance" and amounted to "constitutional cancel culture" on Trump and his supporters. They claimed that Trump's remarks that day "encouraged those in attendance to exercise their rights peacefully and patriotically", [165] [166] [167] and that the House's charge that he incited an insurrection was "a preposterous and monstrous lie". [168]

Van der Veen argued that if the Capitol attack was premediated as criminal files have alleged, Trump could not have incited what was already planned. Schoen asserted that the House had afforded Trump's counsel no due process in the impeachment proceedings and claimed that the House has manipulated footage and relayed inaccurate information. They also criticized the managers for heavily saying "reportedly" as their standard for evidence. [169]

Mounting a "whataboutism" defense, [170] [171] [172] Trump's lawyers played a lengthy video montage demonstrating what they described as the hypocrisy of Democrats' reactions to Trump's rhetoric. As examples, they showed clips of Schumer appearing to threaten Supreme Court Justices Kavanaugh and Gorsuch at a March 2020 pro-abortion rights rally. [173] (Schumer apologized the next day, something Trump has never done). [174] The video montage included Democrats using the word "fight" and the phrase "fight like hell" in several speeches, remarks, and interviews, focusing on Senator Elizabeth Warren. [175] Many of the clips, from Democratic figures such as Representatives Maxine Waters, Al Green, Nancy Pelosi, and Alexandria Ocasio-Cortez, Senators Elizabeth Warren and Jon Tester, and President Biden, [176] were taken out of context, [174] and involved the Democrats referring to "fighting" for constituents against bureaucratic obstacles (as in the Tester clip), [176] fighting for progressive policy positions (as in the Warren clips), [171] or fighting the coronavirus (as in a Schumer clip). [171] Trump's lawyers falsely claimed that Trump's first two tweets during the Capitol attack urged calm Trump in fact first tweeted an attack on Vice President Pence before making a tweet saying "stay peaceful" and "no violence." [177] Trump's attorneys asserted that Democrats' calls for Trump's impeachment was evidence of a "double standard", and claimed that Democrats and liberals had been out to get Trump physically and politically since the beginning of his candidacy for president. [176] They furthermore showed clips of Trump's speeches throughout the years that they claimed the Democrats and media had misrepresented, as evidence that he had always condemned violence and white supremacy. They insisted that Trump's words at the rally were "ordinary political rhetoric" and protected free speech. The defense team rested their case after less than three hours, proceeding to a question-and-answer session. [178]

During the proceedings, Republican Senators Ted Cruz, Mike Lee, Dan Sullivan, Mike Braun, Todd Young, and Marsha Blackburn repeatedly huddled to discuss their "standards" of impeachment. [179] Graham and Cruz repeatedly consulted with Trump's lawyers during their breaks. [180]

Reactions and developments Edit

Republicans generally complimented the House managers' presentation, with focus being drawn to Ted Lieu's warning that he was not concerned about the results of Trump winning another presidential election, but of his losing one. [181] Most Republicans said they thought Trump would be acquitted, with some repeating their convictions about the trial's alleged unconstitutionality. [181] Trumps' lawyers' presentation was praised by Republicans such as Ron Johnson [182] and John Barrasso. [183]

Democrats criticized Trump's lawyers' presentation and denounced the defense team's equating of Trump's rhetoric ahead of the storming of the Capitol to past comments by Democrats: Senator Tim Kaine called it a "bogus argument" Martin Heinrich called it a "completely false equivalence" and said "I don't remember any violent mobs after any of those comments" and Chris Coons said, "Show me any time that the result was, our supporters pulled someone out of the crowd, beat the living crap out of them, and then we said, 'That's great, good for you, you're a patriot.'" [183]

Schoen reportedly threatened on the evening of February 11, the night before the opening argument for the defense, to quit Trump's defense team over a disagreement about the use of videos. Trump called Schoen and convinced him to stay. [184]

On the fourth day of the hearing, senators had four hours to submit questions to the House managers and the counsel for Donald Trump. [185]

The first question from Schumer and Feinstein (Q1) was whether the attack on the Capitol would have happened if not for Trump's conduct impeachment manager Castro responded by quoting Cheney's statement on Trump's actions. Graham, Cruz, Kevin Cramer, and Roger Marshall submitted a question (Q2) on whether politicians' raising bail for rioters encouraged more rioters Castro said it did. Raphael Warnock asked (Q3) if it was true that dozens of courts had previously rejected Trump's efforts to overturn the election. Lisa Murkowski asked (Q4) when Trump learned of the Capitol attack and what specific actions he took to end the rioting. Van der Veen accused the House impeachment team of not carrying out a proper investigation to determine those facts, claiming the House relied on "hearsay." Jacky Rosen asked (Q5) if there was evidence that Trump should have known that his tolerance of anti-Semitic hate speech and rhetoric could have incited the violence. Plaskett answered that Trump had a recorded history of encouraging violence. [184]

Van der Veen discussed Brandenburg v. Ohio, which he called a "landmark case on the issue of incitement speech", to argue that Trump had not meant for his supporters to storm the Capitol, calling Trump's speech metaphorical. Ed Markey and Tammy Duckworth asked (Q7) when Trump learned of the breach and what actions he took to stop the violence. Plaskett stated, "The answer is, nothing." [184] Mitt Romney and Susan Collins asked both sides (Q8) whether Trump knew that Pence had been escorted from the Senate when Trump tweeted to disparage him. [186] Castro said he had known, referring to Tuberville's call. Van der Veen, however, said that this was hearsay and that there was no solid evidence due to "lack of due diligence". Marsha Blackburn and Mike Crapo asked (Q10) whether a former official could be impeached, and Van der Veen argued that it was not constitutional, despite the Senate having already voted that it was. Amy Klobuchar, Bob Casey, and Sherrod Brown asked (Q9) what message the Senate would send if it did not convict Trump. Plaskett warned that there would be consequences and quoted Trump's words, "This is only the beginning". Alex Padilla asked (Q11) if Trump's allegations of fraud had led to the "radicalization" of his supporters to attack the Capitol. Castro responded that Trump's "big lie" had incited them. Josh Hawley and Kevin Cramer asked (Q12) if the Senate could disqualify sitting presidents without removing them. Castor answered in the negative, which Raskin disputed. Elizabeth Warren asked (Q13) the managers whether Democrats objecting to previous Electoral College votes had intended for rioters to storm the Capitol. Raskin called that a false comparison and noted that Democrats did not cause any violence. Jeff Merkley asked (Q17) the managers whether the president was innocent because he told the rioters later to be "peaceful". Raskin compared that to robbing a bank and then yelling "respect private property". [184]

Bernie Sanders asked both sides (Q15) whether, in their judgment, Trump lost the 2020 election. Plaskett said that Trump lost the popular and Electoral College vote, and that the DOJ and courts had agreed that all legal votes were counted. Van der Veen, however, refused to answer the question on the basis that his judgment was "irrelevant" to the proceeding, causing a ruckus on the Senate floor before Leahy restored order. [186] [184]

Ron Johnson asked (Q16) why law enforcement would have been surprised and overwhelmed if the storming was premeditated. Van der Veen praised but did not answer the question. Plaskett stated that Trump knew the rioters would come and cultivated them, yet did not deploy the National Guard. [184]

Cruz asked a question (Q18) equating Kamala Harris's statement that she would raise bail money for Black Lives Matter protesters with the behavior described in the House's article of impeachment. Raskin replied that he would let Harris speak for herself and said outgoing presidents should be held to account for their conduct. Raskin noted that the original permit for the rally had said attendees would not march, but that the plan was changed after Trump intervened. Van der Veen criticized Raskin for being unfamiliar with Harris' "protected speech" and asked that the Senate protect Trump's. [184]

Patty Murray asked (Q19) whether Trump's 6:01 pm tweet was relevant to his guilt. Castro responded by asking why, if Trump was not guilty and the storming was not his intention, he would have sent the tweet. Joe Manchin asked (Q21) whether Trump would have been responsible for not protecting Congress given that he had FBI and domestic intelligence at his disposal. Plaskett stated that Trump was fully aware and thus fully responsible. Bill Cassidy asked (Q20) if Trump knew about the rioters and Pence's presence in the Capitol. Van der Veen said those facts were based on hearsay. Raskin countered that Trump's defense team had refused to have Trump provide direct testimony to establish a record. [187] Dan Sullivan asked (Q22) about the House's assertion that due process was "discretionary" and about the constitutional ramifications of establishing that precedent. Van der Veen said that was why senators needed to acquit. Richard Blumenthal asked (Q23) whether the relevant Supreme Court case prohibited officials from being held accountable through impeachment for inciting violence. Raskin noted that Trump's lawyers were trying to treat the trial as a criminal trial and Trump as a criminal defendant. [184] Marco Rubio asked both sides (Q26) whether, in the future, Congress could impeach a former secretary of state, alluding to Hillary Clinton. Raskin called the hypothetical "irrelevant", and Van der Veen stated that conviction would lead to a "slippery slope".

The Senate adjourned after giving a standing ovation to Capitol Police Officer Eugene Goodman for his actions during the riot and passing a bill to award him the Congressional Gold Medal. [184]

On February 13, 2021, the Senate voted 55–45 to allow both sides to subpoena witnesses for testimony and documents for the trial. The vote came as a surprise to both sides, as the expectation had been that a vote would be taken and the trial would end on that day. The trial was recessed so that the parties could discuss what steps to take. An additional vote would be required to establish the rules for calling witnesses. [188]

Senator Party Total votes
Tammy Baldwin
Vote on subpoenas
Yes No
Democratic 48 0 0
Republican 0 5 45
Independent 0 2 0 0
Totals 55 45
Allow subpoenas [154]
Roll call votes for the vote on subpoenas [155]

Senators resolved, after a two-hour discussion, and with the approval of both parties and the Republican leader, to allow the House Managers to read a statement from GOP Rep. Jaime Herrera Beutler and its entry into the record [189] as evidence but not open to further argument. [190] [191] : S720

Herrera Beutler had earlier told many people her recollection of Trump's call to McCarthy, who had described it to her. Her statement said:

In my January 12 statement in support of the article of impeachment, I referenced a conversation House Minority Leader Kevin McCarthy relayed to me that he'd had with President Trump while the January 6 attack was ongoing. Here are the details: When McCarthy finally reached the president on January 6 and asked him to publicly and forcefully call off the riot, the president initially repeated the falsehood that it was antifa that had breached the Capitol. McCarthy refuted that and told the president that these were Trump supporters. That's when, according to McCarthy, the president said: 'Well, Kevin, I guess these people are more upset about the election than you are.' Since I publicly announced my decision to vote for impeachment, I have shared these details in countless conversations with constituents and colleagues, and multiple times through the media and other public forums. I told it to the Daily News of Longview on January 17. I've shared it with local county Republican executive board members, as well as other constituents who ask me to explain my vote. I shared it with thousands of residents on my telephone town hall on February 8. To the patriots who were standing next to the former president as these conversations were happening, or even to the former vice president: if you have something to add here, now would be the time. [192]

Sen. Mike Lee handed over various phone records to the House impeachment managers to resolve a dispute over his call from Trump during the timeline of events. The records show that at 2:26 PM ET on Jan 6, Trump called Lee by mistake when he was looking to speak to Tuberville. Tuberville spoke with Trump on Lee's phone for less than 10 minutes, with Trump trying to convince him to make additional objections to the Electoral College vote in another effort to block Congress' certification of then President-elect Joe Biden's win. Tuberville has said he told Trump that Pence was being evacuated. [193] [194] Other records show that Trump had tweeted an attack on Pence for lacking "courage" two minutes earlier, at 2:25 PM ET. [195]

Former Vice President Mike Pence’s Chief of Staff Marc Short had also been contacted about providing information about threats to Pence. A source close to Pence had told reporters that Trump’s legal team was lying when van der Veen claimed that "at no point" did the then-president know that Pence was in danger on January 6. [196]

The impeachment managers made their closing arguments on February 13. Raskin argued that Trump's "dereliction of duty . was central to his incitement of insurrection, and inextricable from it," and that Trump's call with McCarthy confirmed he did not care for the safety of lawmakers. [197] Dean played a video montage of Trump's repeating the 'big lie'. Mike Lee briefly interrupted their arguments to object to using the video, as new evidence is not allowed to be admitted during closing arguments, but Dean argued that statement was already on record, and so Dean was allowed to continue and use it. [198] [199] [200] Neguse concluded with an emotional appeal to senators and alluded to Martin Luther King Jr, warning of a "dark future" if senators did not convict Trump. [201] Neguse rebutted the defense's arguments of lack of due process by arguing that the defense fully presented their evidence and declined invitations to testify and provide exculpatory evidence, and the defense's video montage of Democrats using words like "fight" by stating they did not end in attempting to overturn an election in the Capitol. [202]

Trump's attorney Michael van der Veen made a closing argument containing many false and misleading claims. [203] He falsely claimed that the Capitol insurrection was "preplanned and premeditated by fringe left and right groups" the attack was perpetrated by right-wing rioters, some of whom pre-planned the attack and others who participated spontaneously. [203] Van der Veen asserted that nothing Trump said "could ever possibly be construed as. encouraging or sanctioning an insurrection," although many of those who attacked the Capitol specifically said that Trump's words inspired them to take action. [203] Echoing a claim that Trump had previously made, Van der Veen falsely accused President Biden and Vice President Harris of having "repeatedly refused to condemn" acts of violence during riots in 2020 over police violence in fact, Biden and Harris repeatedly condemned riots, violence, and lawlessness. [203] Van der Veen lambasted the Democrats for pursuing impeachment, calling it a "complete charade from beginning to end" and the "unhinged pursuit of a long-standing political vendetta" against Trump, and claiming that the Democrats' fear of Trump getting re-elected is fueling the trial. He ended their marks, calling it a "maniacal crusade," urging senators to not "go down this dark path of anonymity and division." [204] He falsely asserted, "One of the first people arrested was the leader of antifa," though federal authorities had not linked the man in question, John Earle Sullivan, to antifa, [205] and the FBI said there was no evidence of antifa involvement in the incident. [206] [207] [208]

Trump was acquitted by the Senate on February 13, 2021, with 57 senators voting in favor of conviction and 43 voting against. Seven Republican senators joined the entire Democratic caucus in voting for conviction: Richard Burr of North Carolina, Bill Cassidy of Louisiana, Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah, Ben Sasse of Nebraska, and Pat Toomey of Pennsylvania. [209] Despite the verdict being for acquittal, the result was the most bipartisan impeachment conviction vote to date. In Trump's first impeachment, Romney became the only senator to vote to convict a president from his own party. [210]

The voting was marked by tension in the Senate chamber. A greater number of Republicans voted to convict than Trump's legal team had expected. [211] [212] Burr's and Cassidy's votes to convict were viewed as surprising, [213] [214] [215] and both were censured by their state parties (North Carolina and Louisiana, respectively). [216] Another motion in Utah to censure Mitt Romney by the Utah Republican Party during the state convention on April 30, 2021 failed by 711-798. Romney was booed during a speech in the convention where he defended his decision. [217]

Among the seven Senators that voted to convict, three of them (Cassidy, Collins and Sasse) had already just won reelection and two of them (Burr and Toomey) will not be seeking another term, while Romney had already voted to impeach Trump in the latter's first impeachment. Murkowski is the only Senator who will be facing voters in the next election shall she choose to seek another term. However, most election pundits agree that it is unlikely that Murkowski will be defeated in a primary despite threats by Trump and former Alaska governor Sarah Palin, due to Alaska's newly implemented voting system. [218]

Senator Party Total votes
Tammy Baldwin
Voting results
Article I
(Incitement of insurrection)
Guilty Not guilty
Democratic 48 0 0
Republican 0 7 43
Independent 0 2 0 0
Totals 57 43
Not guilty [b]
Roll call vote on the Article of Impeachment [9]

Senate Edit

In remarks on the Senate floor after the adjournment of the "Court of Impeachment", Minority and Republican leader Mitch McConnell, who voted for acquittal, said his vote was based on his belief that the Constitution did not permit the Senate to convict an ex-president. [191] : S735 [ non-primary source needed ] He noted that Trump "didn't get away with anything yet" because the criminal justice system could still deal with the situation. [219] He added:

January 6th was a disgrace. American citizens attacked their own government. They used terrorism to try to stop a specific piece of democratic business they did not like. Fellow Americans beat and bloodied our own police. They stormed the Senate floor. They tried to hunt down the Speaker of the House. They built a gallows and chanted about murdering the Vice President. They did this because they had been fed wild falsehoods by the most powerful man on Earth – because he was angry he'd lost an election. Former President Trump's actions preceding the riot were a disgraceful dereliction of duty. The House accused the former President of, quote, 'incitement.' That is a specific term from the criminal law. Let me put that to the side for one moment and reiterate something I said weeks ago: There is no question that President Trump is practically and morally responsible for provoking the events of that day. [220] [221]

Schumer blasted the Senate's decision to acquit Trump in a floor speech, calling it "un-American" and insulting to patriots who sacrificed themselves for the country for centuries. "There is nothing, nothing more un-American than that . There is nothing, nothing more antithetical to our democracy. insulting to the generations of Americans patriots who gave their lives to defend our form of government." Schumer vowed that the storming of the Capitol would be Trump's "final terrible legacy" and that history would condemn the Republicans who voted to acquit. Schumer decried the events of January 6, saying it would "live on in infamy, a stain on Donald John Trump that can never, never be washed away". [222]

Republican Senator Bill Cassidy said the Constitution and the country "is more important than any one person" and that he voted to convict Trump "because he is guilty." [223] Republican Senator Susan Collins of Maine said that Trump "incited an insurrection with the purpose of preventing that transfer of power from occurring" and that his "actions to interfere with the peaceful transition of power" constituted an abuse of power and "grounds for conviction." [224]

House Edit

Jamie Raskin hailed the effort as the "most bipartisan presidential impeachment in the history of the United States" stated that "Trump stormed our House with the mob he incited and we defended our House" and referred to McConnell's speech as confirmation that the House had proved their case and that the Senate had merely punted on their responsibility over a debunked technicality than on the merits. [225]

McConnell was condemned as hypocritical for criticizing Trump after voting to acquit him, especially because he had maneuvered to block the House from starting the trial before Trump had left office, and thereafter cited Trump's status as a private citizen as a reason to not convict him. Speaker Nancy Pelosi said: "It is so pathetic that Senator McConnell kept the Senate shut down so that the Senate could not receive the Article of Impeachment and has used that as his excuse for not voting to convict Donald Trump." [226]

Former President Trump Edit

After the Senate vote, former President Trump released a statement calling the trial "yet another phase of the greatest witch hunt in the history of our Country" and asserting that his movement had "only just begun." [227]

President Biden Edit

President Joe Biden released a statement following the acquittal that day. He noted the sacrifice of Capitol Police Officer Brian Sicknick who had lain in honor in the Capitol Rotunda days ago, the bipartisanship of the impeachment and the trial, and McConnell's speech laying responsibility on Trump. He stated that "democracy is fragile" and must always be defended, and that "violence and extremism have no place in America". He referred to his inauguration speech that leaders must be truthful to end the "uncivil war". [228] [ non-primary source needed ]

Foreign Edit

Opposition Party in Estonia Estonian Conservative People's Party (EKRE) MP Peeter Ernits hailed the acquittal. [229]

After being acquitted in the Senate impeachment trial, Trump has continued to face legal troubles, including the threat of criminal action or civil litigation. [230] The prospect that Trump could face a criminal prosecution or civil lawsuit arising from the Capitol assault was raised by a number of Republican members of Congress, including Representative Liz Cheney, [231] Senator Marco Rubio and Senator minority leader Mitch McConnell. [230]

The office of Georgia Secretary of State Brad Raffensperger started an investigation into Trump's attempts to overturn the state's election results, including a phone call the former president made to Raffensperger. The Fulton County district attorney, Fani Willis, has also started a criminal investigation into whether Trump should be charged for soliciting election fraud, a violation of Georgia state law. [232] Trump has expressed concern that he could be criminally charged for his actions surrounding the Capitol storming. [233] Trump separately faces an investigation in Manhattan relating to his company's business dealings. [230]

Section 3 of the Fourteenth Amendment of the United States Constitution disqualifies from federal or state office [234] anyone who has taken an oath to support the Constitution [235] [236] and either "engaged in insurrection or rebellion" against the Constitution, [237] or "given aid to the enemies" of the US. [238] Although the section's text does not explicitly describe how it is invoked, by congressional precedent, disqualification is invoked by a simple majority of both chambers, and can be removed by a supermajority of both chambers. [237] [238] During the second impeachment of Donald Trump, Section 3 was cited in the Article of Impeachment as part of the basis for barring Trump from holding future office. [239] [240] It is disputed whether Section 3 can be used as a potential "alternate path to disqualification [from office]" if the Senate votes to acquit Trump of the impeachment charge. [235] [237] [241] Democrats such as Richard Blumenthal, Chris Murphy, Dick Durbin, and Ben Cardin, have considered invoking Section 3 to bar Trump from holding office again, though such a move would enter uncharted constitutional and legal territory. [242]

A Reuters/Ipsos poll released on January 22, 2021, found that 51% of Americans favored conviction of Trump in the Senate, 37% opposed, and 12% were unsure. 55% of Americans supported the Senate disqualifying Trump from holding federal office in the future 34% opposed this step, and 11% said they were unsure. [243]

A Monmouth University poll released on January 25 found that 52% of Americans favored the conviction of Trump in the Senate, while 44% opposed 57% supported the Senate disqualifying Trump from holding federal office in the future. [244] [245]

An ABC News/Ipsos poll released on February 7 found that 56% of Americans favored the Senate convicting Trump and disqualifying him from holding federal office in the future, with 43% opposed. [246]

A CBS News poll/YouGov released on February 8 found that 56% of Americans favored the Senate convicting Trump, with 44% opposed. [247]

A Hill/HarrisX poll released on February 10 found that 52% of Americans favored conviction with 48% opposed. [248]

A Vox/Data for Progress poll released on February 10 found that 12% of Republicans supported conviction compared to 82% of Democrats and 52% of independents and that 69% of Republicans said they would be less likely to vote for a political candidate in their state if that person voted for conviction. [249]

A Morning Consult/Politico poll taken after Trump's acquittal showed that 54% of GOP voters would vote for Trump in the 2024 Republican primary, which was up 12% from a poll taken shortly after the storming of the United States Capitol, and equal to the level of support in November following the 2020 presidential election. [250]

Judicial Review of Impeachments

It was long assumed that no judicial review of the impeachment process was possible, that impeachment presents a true “political question” case, i.e., that the Constitution’s conferral on the Senate of the “sole” power to try impeachments is a textually demonstrable constitutional commitment of trial procedures to the Senate to decide without court review. That assumption was not contested until very recently, when Judges Nixon and Hastings challenged their Senate convictions.907

In the Judge Nixon case, the Court held that a claim to judicial review of an issue arising in an impeachment trial in the Senate presents a nonjusticiable “political question.”908 Specifically, the Court rejected a claim that the Senate had departed from the meaning of the word “try” in the impeachment clause by relying on a special committee to take evidence, including testimony. But the Court’s “political question” analysis has broader application, and appears to place the whole impeachment process off limits to judicial review.909


839 Impeachment is the subject of several other provisions of the Constitution. Article I, § 2, cl. 5, gives to the House of Representatives “the sole power of impeachment.” Article I, § 3, cl. 6, gives to the Senate “the sole power to try all impeachments,” requires that Senators be under oath or affirmation when sitting for that purpose, stipulates that the Chief Justice of the United States is to preside when the President of the United States is tried, and provides for conviction on the vote of two-thirds of the members present. Article I, § 3, cl. 7, limits the judgment after impeachment to removal from office and disqualification from future federal office holding, but it allows criminal trial following conviction upon impeachment. Article II, § 2, cl. 1, deprives the President of the power to grant pardons or reprieves in cases of impeachment. Article III,§ 2, cl. 3, excepts impeachment cases from the jury trial requirement. Although the word “impeachment” is sometimes used to refer to the process by which any member of the House may “impeach” an officer of the United States under a question of constitutional privilege (see 3 H INDS ’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES §§ 2398 (impeachment of President John Tyler by a member) and 2469 (impeachment of Judge John Swayne by a member) (1907), the word as used in Article II, § 4 refers to impeachment by vote of the House, the consequence of which is that the Senate may then try the impeached officer. 840 1 W. HOLDSWORTH, HISTORY OF ENGLISH COURTS 379–85 (7th ed. 1956) Clarke, The Origin of Impeachment, in O XFORD ESSAYS IN MEDIEVAL HISTORY, PRESENTED TO HERBERT EDWARD SALTER 164 (1934) Alex Simpson, Jr., Federal Impeachments, 64 U. P A . L. REV . 651 (1916). 841 Alex Simpson, Jr., Federal Impeachments, 64 U. P A. L. REV .at 653–67 (1916). 842 1 ANNALS OF CONG . 457, 473, 536 (1789). 843 Id. at 375, 480, 496–97, 562. 844 Id. at 372. 845 The term “civil officers of the United States” is not defined in the Constitution, although there may be a parallel with “officers of the United States” under the Appointments Clause, Art. II, § 2, cl. 2, and it may be assumed that not all executive branch employees are “officers.” For precedents relating to the definition, see 3 HINDS ’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES §§ 1785, 2022, 2486, 2493, and 2515 (1907). See also Ronald D. Rotunda, An Essay on the Constitutional Parameters of Federal Impeachment, 76 K Y. L. REV . 707, 715–18 (1988). 846 See the following section on Judges. 847 3 W. Willoughby, supra at 1448. 848 This point was established by a vote of the Senate holding a plea to this effect good in the impeachment trial of Senator William Blount in 1797. 3 H INDS ’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES §§ 2294–2318 (1907) F. WHARTON, STATE TRIALS OF THE UNITED STATES DURING THE ADMINISTRATIONS OF WASHINGTON AND ADAMS 200–321 (1849) BUCKNER F. MELTON, JR., THE FIRST IMPEACHMENT: THE CONSTITUTION ’ S FRAMERS AND THE CASE OF SENATOR WILLIAM BLOUNT (1998). 849 See N ATIONAL COMM ’ N ON JUDICIAL DISCIPLINE & REMOVAL, REPORT OF THE NATIONAL COMM ’ N ON JUDICIAL DISCIPLINE & REMOVAL 9–11 (1993). The Commission was charged by Congress with investigating and studying problems and issues relating to discipline and removal of federal judges, to evaluate the advisability of developing alternatives to impeachment, and to report to the three Government Branches. Pub. L. 101–650, 104 Stat. 5124. The report and the research papers produced for it contain a wealth of information on the subject. 850 For practically the entire Convention, the plans presented and adopted provided that the Supreme Court was to try impeachments. 1 M. Farrand, supra, at 22, 244, 223–24, 231 2 id. at 186. On August 27, it was successfully moved that the provision in the draft of the Committee on Detail giving the Supreme Court jurisdiction of trials of impeachment be postponed, id. at 430, 431, which was one of the issues committed to the Committee of Eleven. Id. at 481. That Committee reported the provision giving the Senate power to try all impeachments, id. at 497, which the Convention thereafter approved. Id. at 551. It may be assumed that so long as trial was in the Supreme Court, the Framers did not intend that the Justices, at least, were to be subject to the process. The Committee of Five on August 20 was directed to report “a mode for trying the supreme Judges in cases of impeachment,” id. at 337, and it returned a provision making Supreme Court Justices triable by the Senate on impeachment by the House. Id. at 367. Consideration of this report was postponed. On August 27, it was proposed that all federal judges should be removable by the executive upon the application of both houses of Congress, but the motion was rejected. Id. at 428–29. The matter was not resolved by the report of the Committee on Style, which left in the “good behavior” tenure but contained nothing about removal. Id. at 575. Therefore, unless judges were included in the term “civil officers,” which had been added without comment on September 8 to the impeachment clause, id. at 552, they were not made removable. 851 The following judges faced impeachment trials in the Senate: John Pickering, District Judge, 1803 (convicted), 3 H INDS ’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES §§ 2319–2341 (1907) Justice Samuel Chase, 1804 (acquitted), id. at §§ 2342–2363 James H. Peck, District Judge, 1830 (acquitted), id. at 2364–2384 West H. Humphreys, District Judge, 1862 (convicted), id. at §§ 2385–2397 Charles Swayne, District Judge, 1904 (acquitted), id. at §§ 2469–2485 Robert W. Archbald, Judge of Commerce Court, 1912 (convicted), 6 C ANNON ’ S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES §§ 498–512 (1936) Harold Louderback, District Judge, 1932 (acquitted), id. at §§ 513–524 Halsted L. Ritter, District Judge, 1936 (convicted), Proceedings of the United States Senate in the Trial of Impeachment of Halsted L. Ritter, S. Doc. No. 200, 74th Congress, 2d Sess. (1936) Harry Claiborne, District Judge, 1986 (convicted), Proceedings of the United States Senate in the Impeachment Trial of Harry E. Claiborne, S. Doc. 99–48, 99th Cong., 2d Sess. (1986) Alcee Hastings, District Judge, 1989 (convicted), Proceedings of the United States Senate in the Impeachment Trial of Alcee L. Hastings, S. Doc. 101–18, 101st Cong., 1st Sess. (1989) Walter Nixon, District Judge, 1989 (convicted), Proceedings of the United States Senate in the Impeachment Trial of Walter L. Nixon, Jr., S. Doc. 101–22, 101st Cong., 1st Sess. (1989). In addition, impeachment proceedings against district judge George W. English were dismissed in 1926 following his resignation six days prior to the scheduled start of his Senate trial. 68 C ONG. REC . 344, 348 (1926). See also ten Broek, Partisan Politics and Federal Judgeship Impeachments Since 1903, 23 M 1903, 23 MINN. L. REV . 185, 194–96 (1939). The others who have faced impeachment trials in the Senate are Senator William Blount (acquitted) Secretary of War William Belknap (acquitted) President Andrew Johnson (acquitted) and President William J. Clinton (acquitted). For summary and discussion of the earlier cases, see CONSTITUTIONAL ASPECTS OF WATERGATE: DOCUMENTS AND MATERIALS (A. Boyan ed., 1976) and Paul S. Fenton, The Scope of the Impeachment Power, 65 N W. U. L. REV . 719 (1970) (appendix), reprinted in Staff of the House Committee on the Judiciary, 105th Cong., Impeachment: Selected Materials 1818 (Comm. Print. 1998). 852 It has been argued that the impeachment clause of Article II is a limitation on the power of Congress to remove judges and that Article III is a limitation on the executive power of removal, but that it is open to Congress to define “good behavior” and establish a mechanism by which judges may be judicially removed. Shartel, Federal Judges—Appointment, Supervision, and Removal—Some Possibilities Under the Constitution, 28 M ICH. L. REV . 485, 723, 870 (1930). Proposals to this effect were considered in Congress in the 1930s and 1940s and revived in the late 1960s, stimulating much controversy in scholarly circles. E.g., Kramer & Barron, The Constitutionality of Removal and Mandatory Retirement Procedures for the Federal Judiciary: The Meaning of “During Good Behavior,” 35 G EO. WASH. L. REV . 455 (1967) Ziskind, Judicial Tenure in the American Constitution: English and American Precedents, 1969 S UP. CT. REV . 135 Berger, Impeachment of Judges and “Good Behavior” Tenure, 79 Y ALE L. J. 1475 (1970). Congress did in the Judicial Conduct and Disability Act of 1980, Pub. L. 96–458, 94 Stat. 2035, 28 U.S.C. § 1 note, 331, 332, 372, 604, provide for disciplinary powers over federal judges, but it specifically denied any removal power. The National Commission, supra at 17–26, found impeachment to be the exclusive means of removal and recommended against adoption of an alternative. Congress repealed 28 U.S.C. § 372 in the Judicial Improvements Act of 2002, Pub. L. 107–273 and created a new chapter (28 U.S.C. §§ 351–64) dealing with judicial discipline short of removal for Article III judges, and authorizing discipline including removal for magistrate judges. The issue was obliquely before the Court as a result of a judicial conference action disciplining a district judge, but it was not reached, Chandler v. Judicial Council, 382 U.S. 1003 (1966) 398 U.S. 74 (1970), except by Justices Black and Douglas in dissent, who argued that impeachment was the exclusive power. 853 See discussion supra of the differences between English and American impeachment. 854 3 DESCHLER ’ S PRECEDENTS OF THE UNITED STATES HOUSE OF REPRESENTATIVES ch. 14, § 13.9. 855 See M ICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENT PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS 77–79 (2d ed. 2000). 856 The Senate imposed disqualification twice, on Judges Humphreys and Archbald. In the Humphreys trial the Senate determined that the issues of removal and disqualification are divisible, 3 H INDS ’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES § 2397 (1907), and in the Archbald trial the Senate imposed judgment of disqualification by vote of 39 to 35. 6 C ANNON ’ S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES § 512 (1936). During the 1936 trial of Judge Ritter, a parliamentary inquiry as to whether a two-thirds vote or a simple majority vote is required for disqualification was answered by reference to the simple majority vote in the Archbald trial. 3 D ESCHLER ’ S PRECEDENTS ch. 14, § 13.10. The Senate then rejected disqualification of Judge Ritter by vote of 76–0. 80 C ONG. REC . 5607 (1936). 857 1 M. Farrand, supra, at 88. 858 2 M. Farrand at 172, 186. 859 Id. at 499. 860 Id. at 550. 861 1 T. HOWELL, STATE TRIALS AND PROCEEDINGS FOR HIGH TREASON AND OTHER CRIMES AND MISDEMEANORS FROM THE EARLIEST PERIOD TO THE PRESENT TIMES 90, 91 (1809) A. SIMPSON , TREATISE ON FEDERAL IMPEACHMENTS 86 (1916). 862 Article III, § 3. 863 The use of a technical term known in the common law would require resort to the common law for its meaning, United States v. Palmer, 16 U.S. (3 Wheat.) 610, 630 (1818) (per Chief Justice Marshall) United States v. Jones, 26 Fed. Cas. 653, 655 (No. 15,494) (C.C.Pa. 1813) (per Justice Washington), leaving aside the issue of the cognizability of common law crimes in federal courts. See Act of April 30, 1790, § 21, 1 Stat. 117. 864 Berger, Impeachment for “High Crimes and Misdemeanors,” 44 S. C AL. L. REV . 395, 400–415 (1971). 865 The extradition provision reported by the Committee on Detail had provided for the delivering up of persons charged with “Treason[,] Felony or high Misdemeanors.” 2 M. Farrand, supra, at 174. But the phrase “high Misdemeanors” was replaced with “other crimes” “in order to comprehend all proper cases: it being doubtful whether ‘high misdemeanor’ had not a technical meaning too limited.” Id. at 443. 866 See id. at 64–69, 550–51. 867 E.g., 3 J. E LLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS ON ADOPTION OF THE CONSTITUTION 341, 498, 500, 528 (1836) (Madison) 4 id. at 276, 281 ©. C. Pinckney: Rutledge): 3 id. at 516 (Corbin): 4 id. at 263 (Pendleton). Cf. T HE FEDERALIST , No. 65 (J. Cooke ed. 1961), 439–45 (Hamilton). 868 1 ANNALS OF CONG . 372–73 (1789). 869 4 J. Elliot, supra at 126 (Iredell) 2 id. at 478 (Wilson). For a good account of the debate at the Constitutional Convention and in the ratifying conventions, see Alex Simpson, Jr., Federal Impeachments, 64 U. P A. L. REV . 651, 676–95 (1916) 870 See generally C HARLES L. BLACK, IMPEACHMENT: A HANDBOOK (1974) RAOUL BERGER , IMPEACHMENT: THE CONSTITUTIONAL PROBLEMS (1973) MICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENT PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS (2d ed. 2000) P ETER CHARLES HOFFER AND N.E.H. HULL, IMPEACHMENT IN AMERICA, 1635–1805 (1984) JOHN R. LABOVITZ , PRESIDENTIAL IMPEACHMENT (1978) 3 DESCHLER ’ S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES , ch. 14, § 3 “Grounds for Impeachments,” H.R. Doc. No. 661, 94th Cong. 2d Sess. (1977) Charles Doyle, Impeachment Grounds: A Collection of Selected Materials, CRS Report for Congress 98–882A (1998) and Elizabeth B. Bazan, Impeachment: An Overview of Constitutional Provisions, Procedure, and Practice, CRS Report for Congress 98–186A (1998). 871 1 J. Q. ADAMS, MEMOIRS 322 (1874). See also 3 H INDS ’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES §§ 2356–2362 (1907). 872 3 HINDS ’ PRECEDENTS at § 2361. 873 The full record is T RIAL OF SAMUEL CHASE, AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES (S. Smith & T. Lloyd eds., 1805). For analysis of the trial and acquittal, see Lillich, The Chase Impeachment, 4 A MER. J. LEGAL HIST . 49 (1960) and W ILLIAM H. REHNQUIST, GRAND INQUESTS: THE HISTORIC IMPEACHMENTS OF JUSTICE SAMUEL CHASE AND PRESIDENT ANDREW JOHNSON (1992). The proceedings against Presidents Tyler and Johnson and the investigation of Justice Douglas are also generally viewed as precedents that restrict the use of impeachment as a political weapon. 874 Some have argued that the constitutional requirement of “good behavior” and “high crimes and misdemeanors” conjoin to allow the removal of judges who have engaged in non-criminal conduct inconsistent with their responsibilities, or that the standard of “good behavior”—not that of “high crimes and misdemeanors”—should govern impeachment of judges. See 3 D ESCHLER ’ S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES , ch. 14, §§ 3.10 and 3.13, H.R. Doc. No. 661, 94th Cong. 2d Sess. (1977) (summarizing arguments made during the impeachment investigation of Justice William O. Douglas in 1970). For a critique of these views, see Paul S. Fenton, The Scope of the Impeachment Power, 65 N W. U. L. REV .719 (1970), reprinted in Staff of the House Committee on the Judiciary, 105th Cong., Impeachment: Selected Materials 1801–03 (Comm. Print. 1998). 875 See 3 H INDS ’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES §§ 2319–2341 (1907) 876 Ten Broek, Partisan Politics and Federal Judgeship Impeachments Since 1903, 23 MINN. L. REV . 185 (1939). Judge Ritter was acquitted on six of the seven articles brought against him, but convicted on a seventh charge that summarized the first six articles and charged that the consequence of that conduct was “to bring his court into scandal and disrepute, to the prejudice of said court and public confidence in the Federal judiciary, and to render him unfit to continue to serve as such judge.” This seventh charge was challenged unsuccessfully on a point of order, but was ruled to be a separate charge of “general misbehavior.” 877 Warren S. Grimes, Hundred-Ton-Gun Control: Preserving Impeachment as the Exclusive Removal Mechanism for Federal Judges, 38 UCLA L. R EV . 1209, 1229–1233 (1991). 878 See, e.g., Frank O. Bowman, III and Stephen L. Sepinuck, “High Crimes and Misdemeanors”: Defining the Constitutional Limits on Presidential Impeachment, 72 S. CAL. L. REV . 1517, 1534–38 (1999). Congressional practice may reflect this view. Judges Ritter and Claiborne were convicted on charges of income tax evasion, while the House Judiciary Committee voted not to press such charges against President Nixon. So too, the convictions of Judges Hastings and Nixon on perjury charges may be contrasted with President Clinton’s acquittal on a perjury charge. 879 Act of March 2, 1867, ch. 154, 14 Stat. 430. 880 1 TRIAL OF ANDREW JOHNSON, PRESIDENT OF THE UNITED STATES ON IMPEACHMENT 88, 147 (1868). 881 Id. at 409. 882 For an account of the Johnson proceedings, see W ILLIAM H. REHNQUIST, GRAND INQUESTS: THE HISTORIC IMPEACHMENTS OF JUSTICE SAMUEL CHASE AND PRESIDENT ANDREW JOHNSON (1992). 883 The only occasion before the Johnson impeachment when impeachment of a President had come to a House vote was the House’s rejection in 1843 of an impeachment resolution against President John Tyler. The resolution, which listed nine separate counts and which was proposed by a member rather than by a committee, was defeated by vote of 127 to 84. See 3 H INDS ’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES § 2398 (1907) CONG. GLOBE , 27th Cong. 3d Sess. 144–46 (1843). 884 The President’s resignation did not necessarily require dismissal of the impeachment charges. Judgment upon conviction can include disqualification as well as removal. Art. I, § 3, cl. 7. Precedent from the 1876 impeachment of Secretary of War William Belknap, who had resigned prior to his impeachment by the House, suggests that impeachment can proceed even after a resignation. See 3 H INDS ’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES , § 2445 (1907). The Belknap precedent may be somewhat weakened, however, by the fact that his acquittal was based in part on the views of some Senators that impeachment should not be applied to someone no longer in office, id. at § 2467, although the Senate had earlier rejected (by majority vote of 37–29) a resolution disclaiming jurisdiction, and had adopted by vote of 35–22 a resolution affirming that result See id. at § 2007 for an extensive summary of the Senate’s consideration of the issue. See also id, § 2317 (it had been conceded during the 1797 proceedings against Senator William Blount, who had been sequestered from his seat in the Senate, that an impeached officer could not escape punishment by resignation). 885 H.R. REP. NO . 93–1305. 886 120 CONG. REC . 29361–62 (1974). 887 Analyses of the issue from different points of view are contained in Impeachment Inquiry Staff, House Judiciary Committee, 93d Cong., Constitutional Grounds for Presidential Impeachments, (Comm. Print 1974) J. St. Clair, et al., Legal Staff of the President, Analysis of the Constitutional Standard for Presidential Impeachment (Washington: 1974) Office of Legal Counsel, Department of Justice, Legal Aspects of Impeachment: An Overview, and Appendix I (Washington: 1974). See also RAOUL BERGER, IMPEACHMENT: THE CONSTITUTIONAL PROBLEMS (1973), which preceded the instant controversy and M ICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENT PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS 103–06 (2d ed. 2000). 888 Indeed, the Committee voted not to recommend impeachment for alleged income tax fraud, an essentially private crime not amounting to an abuse of power. 889 The question first arose during the grand jury investigation of former Vice President Agnew, during which the United States, through the Solicitor General, argued that the Vice President and all civil officers were not immune from the judicial process and could be indicted prior to removal, but that the President for a number of constitutional and practical reasons was not subject to the ordinary criminal process. Memorandum for the United States, Application of Spiro T. Agnew, Civil No. 73–965 (D.Md., filed October 5, 1973). Courts have held that a federal judge was indictable and could be convicted prior to removal from office. United States v. Claiborne, 727 F.2d 842, 847–848 (9th Cir.), cert. denied, 469 U.S. 829 (1984) United States v. Hastings, 681 F.2d 706, 710–711 (11th Cir.), cert. denied, 459 U.S. 1203 (1983) United States v. Isaacs, 493 F.2d 1124 (7th Cir.), cert. denied sub nom. Kerner v. United States, 417 U.S. 976 (1974). 890 The grand jury had named the President as an unindicted coconspirator in the case of United States v. Mitchell, et al., No. 74–110 (D.D.C. 1974), apparently in the belief that he was not actually indictable while in office. The Supreme Court agreed to hear the President’s claim that the grand jury acted outside its authority, but finding that resolution of the issue was unnecessary to decision of the executive privilege claim it dismissed as improvidently granted the President’s petition for certiorari. United States v. Nixon, 418 U.S. 683, 687 n.2 (1974). 891 Approved by a vote of 228–206. 144 C ONG. REC . H12,040 (daily ed. Dec. 19, 1998). 892 Approved by a vote of 221–212. 144 C ONG. REC . H12,041 (daily ed. Dec. 19, 1998). 893 An article charging the President with perjury in the civil sexual harassment suit brought against him was defeated by a vote of 229–205 another article charging him with abuse of office by false responses to the House Judiciary Committee’s written request for factual admissions was defeated by vote of 285 to 148. 144 CONG. REC . H12,042 (daily ed. Dec. 19, 1998). 894 The vote for acquittal was 55 to 45 on the grand jury perjury charge, and 50 to 50 on the obstruction of justice charge. 145 C ONG. REC . S1458–59 (daily ed. Feb. 12, 1999). 895 For analysis and different perspectives on the Clinton impeachment, see Background and History of Impeachment: Hearing Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 105th Cong., 2d Sess. (1998) and Staff of the House Comm. on the Judiciary, 105th Cong., Impeachment: Selected Materials (Comm. Print 1998). See also M ICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENT PROCESS : A CONSTITUTIONAL AND HISTORICAL ANALYSIS (2d ed. 2000) R ICHARD A. POSNER, AN AFFAIR OF STATE: THE INVESTIGATION, IMPEACHMENT , AND TRIAL OF PRESIDENT CLINTON (1999) LAURENCE H. TRIBE, 1 AMERICAN CONSTITUTIONAL LAW 181–202 (3d ed. 2000) and Michael Stokes Paulsen, Impeachment (Update), 3 E NCYCLOPEDIA OF THE AMERICAN CONSTITUTION 1340–43 (2d ed. 2000). Much of the documentation can be found in Impeachment of William Jefferson Clinton, President of the United States, H.R. R EP. NO . 105–380 (1998) Staff of the House Comm. on the Judiciary, 105th Cong., 2d Sess., Impeachment Inquiry: William Jefferson Clinton, President of the United States Consideration of Articles of Impeachment (Comm. Print 1998) and Impeachment of President William Jefferson Clinton: The Evidentiary Record Pursuant to S. Res. 16, S. Doc. No. 106–3 (1999) (21-volume set). 896 Following the trial, a number of Senators placed statements in the record explaining their votes. See 145 C ONG. REC . S1462–1637 (daily ed. Feb. 12, 1999). 897 Note that the Judiciary Committee deleted from the article a charge based on President Clinton’s allegedly frivolous assertions of executive privilege in response to subpoenas from the Office of Independent Counsel. Similarly, the Committee in 1974 distinguished between President Nixon’s refusal to respond to congressional subpoenas and his refusal to respond to those of the special prosecutor only the refusal to provide information to the impeachment inquiry was cited as an impeachable abuse of power. 898 The requirement was contained in the Ethics in Government Act, since lapsed, and codified at 28 U.S.C. § 595(c). For commentary, see Ken Gormley, Impeachment and the Independent Counsel: A Dysfunctional Union, 51 S TAN. L. REV . 309 (1999). 899 For analysis of the issue, see Jack Maskell, Censure of the President by Congress, CRS Report for Congress 98–843. 900 According to one scholar, the three articles of impeachment against President Nixon epitomized the “paradigm” for presidential impeachment—abuse of power in which there is “not only serious injury to the constitutional order but also a nexus between the misconduct of an impeachable official and the official’s formal duties.” Michael J. Gerhardt, The Lessons of Impeachment History, 67 G EO. WASH. L. REV . 603, 617 (1999). 901 Although committing perjury in a judicial proceeding—regardless of purpose or subject matter—impedes the proper functioning of the judiciary both by frustrating the search for truth and by breeding disrespect for courts, and consequently may be viewed as an (impeachable) “offense against the state” (see 145 C ONG. REC. S1556 (daily ed. Feb. 12, 1999) (statement of Sen. Thompson)), such perjury arguably constitutes an abuse of power only if the purpose or subject matter of the perjury relates to official duties or to aggrandizement of power. Note that one of the charges against President Clinton recommended by the House Judiciary Committee but rejected by the full House—providing false responses to the Committee’s interrogatories— was squarely premised on an abuse of power. 902 The House vote can be viewed as rejecting the views of a number of law professors, presented in a letter to the Speaker entered into the Congressional Record, arguing that high crimes and misdemeanors must involve “grossly derelict exercise of official power.” 144 C ONG. REC . H9649 (daily ed. Oct. 6, 1998). 903 Some Senators who explained their acquittal votes rejected the idea that the particular crimes that President Clinton was alleged to have committed amounted to impeachable offenses (see, e.g., 145 C ONG. REC . S1560 (daily ed. Feb. 12, 1999) (statement of Sen. Moynihan) id. at 1601 (statement of Sen. Lieberman)), some alleged failure of proof (see, e.g., id. at 1539 (statement of Sen. Specter) id. at 1581 (statement of Sen. Akaka)), and some cited both grounds (see, e.g., id. at S1578–91 (statement of Sen. Leahy), and id. at S1627 (statement of Sen. Hollings)). 904 See, e.g., 145 C ONG. REC . S1525 (daily ed. Feb. 12, 1999) (statement of Sen. Cleland) (accepting the proposition that murder and other crimes would qualify for impeachment and removal, but contending that “the current case does not reach the necessary high standard”) id. at S1533 (statement of Sen. Kyl) (impeachment cannot be limited to wrongful official conduct, but must include murder) and id. at S1592 (statement of Sen. Leahy) (acknowledging that “heinous” crimes such as murder would warrant removal). This idea, incidentally, was not new one Senator in the First Congress apparently assumed that impeachment would be the first recourse if a President were to commit a murder. IX D OCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS, 1789–1790, THE DIARY OF WILLIAM MACLAY AND OTHER NOTES ON SENATE DEBATES 168 (Kenneth R. Bowling and Helen E. Veit, eds. 1988). 905 One commentator, analogizing to the impeachment and conviction of Judge Claiborne for income tax evasion, viewed the basic issue in the Clinton case as whether his alleged misconduct was so outrageous as to “effectively rob[ ] him of the requisite moral authority to continue to function as President.” Gerhardt, supra n.817, at 619. Under this view, the Claiborne conviction established that income tax evasion by a judge, although unrelated to official duties, reveals the judge as lacking the unquestioned integrity and moral authority necessary to preside over criminal trials, especially those involving tax evasion. 906 Senator Thompson propounded this theory in arguing that “abuse of power” is too narrow a category to encompass all forms of subversion of government that should be grounds for removal. 145 C ONG. REC . S1556 (daily ed. Feb. 12, 1999). 907 Both judges challenged the use under Rule XI of a trial committee to hear the evidence and report to the full Senate, which would then carry out the trial. The rule was adopted in the aftermath of an embarrassingly sparse attendance at the trial of Judge Louderback in 1935. National Comm. Report, supra at 50–53, 54–57 Grimes, supra at 1233–37. In the Nixon case, the lower courts held the issue to be non-justiciable (Nixon v. United States, 744 F. Supp. 9 (D.D.C. 1990), aff’d, 938 F.2d 239 (D.C. Cir. 1991), but a year later a district court initially ruled in Judge Hastings’ favor. Hastings v. United States, 802 F. Supp. 490 (D.D.C. 1992), vacated, 988 F.2d 1280 (D.C. Cir. 1993). 908 Nixon v. United States, 506 U.S. 224 (1993). Nixon at the time of his conviction and removal from office was a federal district judge in Mississippi. 909 The Court listed “reasons why the Judiciary, and the Supreme Court in particular, were not chosen to have any role in impeachments,” and elsewhere agreed with the appeals court that “opening the door of judicial review to the procedures used by the Senate in trying impeachments would expose the political life of the country to months, or perhaps years, of chaos.” 506 U.S. at 234, 236.

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Senator Party Total votes
Tammy Baldwin