Jurisprudence on Impeachable Offenses (1789–1860)

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Article II, Section 4:

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.

Congressional understanding of the scope of activities subject to impeachment and the potential persons who may be impeached was first put to the test during the Adams Administration. In 1797, letters sent to President John Adams revealed a conspiracy by Senator William Blount—in violation of the United States government’s policy of neutrality on the matter and the Neutrality Act1 —to organize a military expedition with the British to invade land in the American Southwest under Spanish control.2 The House voted to impeach Senator Blount on July 7, 1797,3 while the Senate voted to expel Senator William Blount the next day.4 Before impeaching Senator Blount, several House Members questioned whether Senators were “civil officers” subject to impeachment.5 But Samuel W. Dana of Connecticut argued that Members of Congress must be civil officers, because other provisions of the Constitution that mention offices appear to include holding legislative office.6 Despite already having voted to impeach Senator Blount, it was not until early in the next year that the House actually adopted specific articles of impeachment against Senator Blount.7

At the Senate impeachment trial in 1799, Blount’s attorneys argued that impeachment was improper because Blount had already been expelled from his Senate seat and had not been charged with a crime.8 However, the primary issue of debate was whether Members of Congress qualified as civil officers subject to impeachment. The House prosecutors argued that under the American system, as in England, virtually anyone was subject to impeachment.9 The defense responded that this broad interpretation of the impeachment power would enable Congress to impeach state officials as well as federal, upending the proper division of federal and state authorities in the young Republic.10 The Senate voted to defeat a resolution that declared Blount was a “civil officer” and therefore subject to impeachment.11 The Senate ultimately voted to dismiss the impeachment articles brought against Blount because it lacked jurisdiction over the matter, although the impeachment record does not indicate precisely the basis for this conclusion.12 Regardless, the House has not impeached a Member of Congress since.

The first federal official to be impeached and removed from office was John Pickering, a federal district judge. The election of President Thomas Jefferson in 1800, along with Jeffersonian Republican majorities in both House of Congress, signaled a shift from Federalist party control of government.13 Much of the federal judiciary at this early stage of the Republic were members of the Federalist party, and the new Jeffersonian Republican majority strongly opposed the Federalist-controlled courts.14 John Pickering was impeached by the House of Representatives in 180315 and convicted by the Senate on March 12, 1804.16 The circumstances of Judge Pickering’s impeachment are somewhat unique as it appears that the judge had been mentally ill for some time, although the articles of impeachment did not address Pickering’s mental faculties but instead accused him of drunkenness, blasphemy on the bench, and refusing to follow legal precedent.17 Judge Pickering did not appear at his trial, and Senator John Quincy Adams apparently served as a defense counsel.18 Following debate in a closed session, the Senate voted to permit evidence of Judge Pickering’s insanity, drunkenness, and behavior on the bench.19 The Senate also rejected a resolution to disqualify three Senators, who were previously in the House and had voted to impeach Judge Pickering, from participating in the impeachment trial.20 The Senate voted to convict Judge Pickering guilty as charged, but the articles did not explicitly specify that any of Pickering’s behavior constituted a high crime or misdemeanor.21 Objections to the framing of the question at issue caused several Senators to withdraw from the trial.22

On the same day the Senate convicted Judge Pickering, the House of Representatives impeached Supreme Court Justice Samuel Chase.23 Like the impeachment trial of Judge Pickering, the proceedings occurred following the election of President Thomas Jefferson and amidst intense conflict between the Federalists and Jeffersonian Republicans.24 Justice Chase was viewed by Jeffersonian Republicans as openly partisan, and in fact the Justice did openly campaign for the election of Federalist John Adams in the election of 1800.25 In addition, Republicans took issue with Justice Chase’s aggressive approach to jury instructions in Sedition Act prosecutions.26 The eight articles of impeachment accused him of acting in an “arbitrary, oppressive, and unjust” manner at trial, misapplying the law, and expressing partisan political views to a grand jury.27 The Senate trial began on February 4, 1805. Both the House managers and defense counsel for Justice Chase presented witnesses detailing the Justice’s behavior.28 While some aspects of the dispute focused on whether Justice Chase took certain actions, the primary conflict centered on whether his behavior was impeachable.29 Before reaching a verdict, the Senate approved a motion from Senator James Bayard, a Federalist from Delaware, that the underlying question be whether Justice Chase was guilty of high crimes and misdemeanors, rather than guilty as charged.30 The Senate vote ultimately fell short of the necessary two-thirds majority to secure a conviction on any of the articles.31 Of the eight articles, a majority of Senators voted to convict on three, while the remaining five did not muster a majority for conviction.32

The trial raised a number of questions which have recurred throughout the history of impeachments. For example, is impeachment limited to criminal acts, or does it extend to non-criminal behavior?33 The opposing sides in the Chase case took differing views on this matter, as they would in later impeachments to come.34 Due in part to the charged political atmosphere of the historical context, the attempted impeachment of Justice Chase has also come to represent an important limit on the scope of the impeachment remedy. Commentators have interpreted the acquittal of Justice Chase as establishing that impeachment does not extend to congressional disagreement with a judge’s opinions or judicial philosophy.35 At least some of the Senators who voted to acquit did not consider the alleged offenses as rising to the level of impeachable behavior.36

By the time of the next impeachment in 1830, both houses of Congress were controlled by Jacksonian Democrats, and the federal courts were unpopular with Congress and the public.37 The House of Representatives impeached James Peck, a federal district judge, for abusing his judicial authority. The sole article accused the judge of holding an attorney in contempt for publishing an article critical of Peck and barring the attorney from practicing law for 18 months. The context surrounding Judge Peck’s actions involved disputes over French and Spanish land grant titles following the transfer of land in the Louisiana territory from French to U.S. control.38 Shortly after Missouri was admitted to the United States as part of the Missouri Compromise in 1821, Judge Peck decided a land rights case against the claimants in favor of the United States.39 The attorney for the plaintiffs wrote an article critical of the decision in a local paper.40 Judge Peck held the attorney in contempt, sentenced him to jail for twenty-four hours, and barred him from practicing law for eighteen months.41

The House impeached Judge Peck by a wide margin.42 Of central concern during the Senate trial were the limits of a judge’s common law contempt power, a matter that appeared to be in dispute.43 The Senate ultimately acquitted Judge Peck, with roughly half of the Jacksonian Democrats voting against conviction.44 Shortly thereafter, Congress passed a law reforming and defining the scope of the judicial contempt power.45

Finally, in the midst of the Civil War, federal district judge West H. Humphreys was appointed to a position as a judge in the Confederate government, but he did not resign as a United States federal judge.46 In 1862, the House impeached and the Senate convicted Judge Humphreys for joining the Confederate government and abandoning his position.47 As in the trial of Judge Pickering previously, Judge Humphreys did not attend the proceedings.48 Unlike in the case of Judge Pickering, however, no defense was offered in the impeachment trial of Judge Humphreys.49

1: 1 Stat. 381, 384 § 5 (June 5, 1794).
2: See Buckner F. Melton, The First Impeachment 60–103 (1998); Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 48 (2000); David Currie, The Constitution in Congress: The Federalist Period 1789–1801 275–81 (1997).
3: Emily F.V. Tassel & Paul Finkelman, Impeachable Offenses: A Documentary History from 1787 to the Present 87–88 (1999).
4: Gerhardt, supra note 2, at 48; see U.S. Const. art. I, § 5.
5: Currie, supra note 2, at 276.
6: Id. (noting Article I, Section 9 and Article I, Section 3).
7: Tassel & Finkelman, supra note 3, at 87–88; Melton, supra note 2, at 104–89.
8: Currie, supra note 2, at 277.
9: Id. at 279.
10: Id.
11: 8 Annals of Cong. 2317 (1799).
12: Peter Hoffer & N.E.H. Hull, Impeachment in America, 1635–1805 155 (1984). 9 Annals of Cong. 2648–49 (1799). Currie, supra note 2, at 2780–81. While the Senate’s vote to dismiss for lack of jurisdiction might also be based on the fact that the Senator had been expelled from Congress, and therefore did not occupy an “office,” it is generally accepted that the Senate’s decision stands for the proposition that impeachment does not extend to Members of Congress. See Charles W. Johnson, John V. Sullivan, and Thomas J. Wickham, Jr., House Practice: A Guide to the Rules, Precedents and Procedures of the House 604–06 (2017); Staff of H. Comm. on the Judiciary, Impeachment, Selected Materials, 93d Cong. 692 (Comm. Print 1973); Motions Sys. Corp. v. Bush, 437 F.3d 1356, 1373 (Fed. Cir. 2006) ( “This principle has been accepted since 1799, when the Senate, presented with articles of impeachment against Senator William Blount, concluded after four days of debate that a Senator was not a civil officer for purposes of the Impeachment Clause.” ).
13: Hoffer & Hull, supra note 12, at 181.
14: Id. at 181.
15: See 12 Annals of Cong. 642 (1803); 13 Annals of Cong. 380 (1803).
16: See 13 Annals of Cong. 368 (1804); Hoffer & Hull, supra note 12, at 208, 216–17.
17: Eleanore Bushnell, Crimes, Follies, and Misfortunes: The Federal Impeachment Trials 45–46 (1992).
18: Hoffer & Hull, supra note 12, at 211–13.
19: Bushnell, supra note 17, at 48–51. Scholars have noted that the Senate vote in favor of admitting evidence of insanity likely stemmed from two opposing reasons. The minority party Federalists—of which Judge Pickering was a member—considered evidence of insanity a reason to acquit the judge because it was not an impeachable offense. The majority party Republicans, in contrast, considered insanity a reason to remove him from the bench. Id. at 48–49.
20: Id. at 47.
21: 13 Annals of Cong. 367 (1804); Bushnell, supra note 17, at 53–54.
22: Bushnell, supra note 17, at 53–54.
23: 13 Annals of Cong. 1180 (1804); Bushnell, supra note 17, at 60.
24: Hoffer & Hull, supra note 12, at 228–138.
25: Bushnell, supra note 17, at 63.
26: Josh Chafetz, Congress’s Constitution 108 (2017).
27: Impeachment, Selected Materials, supra note 12, at 133–35.
28: Bushnell, supra note 17, at 63–73.
29: Bushnell, supra note 17, at 67–84; see Gerhardt, supra note 2, at 181.
30: Bushnell, supra note 17, at 84.
31: Tassel & Finkelman, supra note 3, at 103.
32: 14 Annals of Cong. 664–69 (1805); Tassel & Finkelman, supra note 3, at 103.
33: Bushnell, supra note 17, at 82–87.
34: H. Comm. on the Judiciary, Impeachment of Richard M. Nixon, President of the United States, H.R. Rep. No. 93–1305, 93d Cong. 362–72 (1974) (minority views); 3 Lewis Deschler, Precedents of the United States of the House of Representatives, H.R. Doc. No. 94-661, ch. 14 § 3.8 (1974).
35: See David P. Currie, The Constitution in Congress: the Most Endangered Branch, 1801–1805, 33 Wake Forest L. Rev. 219, 259 (1998); William H. Rehnquist, Grand Inquests: The Historic Impeachments 114 (1992); Chafetz, supra note 26, at 150. But see Chafetz, supra note 26, at 109 (arguing that Justice Chase returned to the bench “humbled” and that one result of the affair was that the Marshall Court “made its peace with Republican politics” ).
36: See Michael J. Gerhardt, Putting the Law of Impeachment in Perspective, 43 St. Louis U. L.J. 905, 921 (1999).
37: Bushnell, supra note 17, at 91.
38: Tassel & Finkelman, supra note 3, at 108–09; Bushnell, supra note 17, at 92.
39: Tassel & Finkelman, supra note 3, at 108–09.
40: Id.
41: Id.
42: 6 Cong. Deb. 818–19 (1830).
43: Bushnell, supra note 17, at 91–113.
44: 7 Cong. Deb. 45 (1831).
45: See Act of Mar. 2, 1831, ch. 99, 4 Stat. 487.
46: Tassel & Finkelman, supra note 3, at 114–16.
47: 2 Asher C. Hinds, Hinds’ Precedents of the House of Representatives of the United States §§ 2385–97 (1907).
48: Bushnell, supra note 17, at 115.
49: Id.