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.

The Constitution gives Congress the authority to impeach and remove the President,1 Vice President, and all federal “civil officers” for treason, bribery, or other high crimes and misdemeanors.2 This tool was inherited from English practice, in which Parliament impeached and convicted ministers and favorites of the Crown in a struggle to rein in the Crown’s power.

Congress’s power of impeachment is an important check on the Executive and Judicial Branches, recognized by the Framers as a crucial tool for holding government officers accountable for violations of the law and abuses of power.3 Congress has most notably employed the impeachment tool against the President and federal judges, but all federal civil officers are subject to removal by impeachment.4 The Senate has also concluded (by majority vote) on various occasions that an official impeached while in office remains subject to trial, conviction, and imposition of the penalty of disqualification even after he or she leaves office.5 The practice of impeachment makes clear, however, that Members of Congress are not civil officers subject to impeachment and removal.6

While judicial precedents inform the effective substantive meaning of various provisions of the Constitution, impeachment is at bottom a unique political process largely unchecked by the judiciary. While the meaning of treason and bribery is relatively clear, the scope of high crimes and misdemeanors lacks a formal definition and has been fleshed out over time, in a manner perhaps analogous to the common law, through the practice of impeachments in the United States Congress.7 The type of behavior that qualifies as impeachable conduct, and the circumstances in which impeachment is an appropriate remedy for such actions, are thus determined by, among other things, competing political interests, changing institutional relationships among the three branches of government, and legislators’ interaction with and accountability to the public.8 The weight of historical practice, rather than judicial precedent, is thus central to understanding the nature of impeachment in the United States.

Footnotes

1

The Constitution contains a number of provisions that are relevant to the impeachment of federal officials. Article I, Section 2, Clause 5 grants the sole power of impeachment to the House of Representatives; Article I, Section 3, Clause 6 assigns the Senate sole responsibility to try impeachments; Article I, Section 3, Clause 7 provides that the sanctions for an impeached and convicted individual are limited to removal from office and potentially a bar from holding future office, but an impeachment proceeding does not preclude criminal liability; Article II, Section 2, Clause 1 provides that the President enjoys the pardon power, but it does not extend to cases of impeachment; and Article II, Section 4 defines which officials are subject to impeachment and what kinds of misconduct constitute impeachable behavior. Article III does not mention impeachment expressly, but Section 1, which establishes that federal judges shall hold their seats during good behavior, is widely understood to provide the unique nature of judicial tenure. And Article III, Section 2, Clause 3 provides that trials, “except in Cases of Impeachment, shall be by jury.”

2

U.S. Const. art. II, § 4.

3

See The Federalist Nos. 65, 81 (Alexander Hamilton) (Rossiter ed., 1961).

4

U.S. Const. art. II, § 4; see ArtII.S4.4.5 Jurisprudence on Impeachable Offenses (1865–1900).

5

See 167 Cong. Rec. S609 (daily ed. Feb. 9, 2021) (determining that “Donald John Trump is subject to the jurisdiction of a Court of Impeachment for acts committed while President of the United States, notwithstanding the expiration of his term in that office” ); Jared P. Cole & Todd Garvey, Cong. Rsch. Serv., R46013, Impeachment and the Constitution 47–48 (2019).

6

See ArtII.S4.4.3 Jurisprudence on Impeachable Offenses (1789–1860).

7

2 Joseph Story, Commentaries on the Constitution of the United States § 762 (1833) ( “Not but that crimes of a strictly legal character fall within the scope of the power, (for, as we shall presently see, treason, bribery, and other high crimes and misdemeanours are expressly within it;) but that it has a more enlarged operation, and reaches, what are aptly termed, political offences, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties of political office. These are so various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law.” ); id. §§ 795–98.

8

See Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis x–xi (2000). See also Story, supra note 7, at § 762.