Impeachment of presidents and the Supreme Court

Description: As specified in the US Constitution, impeachment means charging the president or other federal officials with treason, bribery, or other “high crimes and misdemeanors.” The House of Representatives has the sole power to impeach; the president is tried by the Senate and, if found guilty, removed from office.

Significance: As of 2023, as a means to remove the president from office, the process, part of which is presided over by the chief justice, had been employed (to the extent of at least being underway) five times in US history, with three presidents being impeached and tried by the Senate. While President Richard Nixon resigned before official impeachment, in 2021, President Donald Trump became the first president to be impeached twice. All three impeached presidents, Andrew Johnson, William Jefferson Clinton, and Donald Trump, were found not guilty.

The US Constitution limits the grounds for impeachment to “treason, bribery, and other high crimes and misdemeanors.” Treason and bribery are clearly defined, but the words “high crimes and misdemeanors” have caused difficulty. Some believe they refer only to indictable crimes, and a few have argued that a president can be impeached only after having been indicted. Most agree the term covers serious wrongdoing by the president that harms the United States. Although this does not necessarily mean indictable crimes, in many cases, they would fall into this category.

In theory, presidential impeachment is straightforward. The House Judiciary Committee takes evidence during hearings and votes on which articles of impeachment, if any, are sent to the full House. If the House approves the articles, managers are appointed to present the case to the Senate. Managers may be selected by direct vote, the passage of a resolution, or at the discretion of the speaker.

When the Senate receives the articles of impeachment, it forms a tribunal with the chief justice of the United States presiding. The Senate hears evidence and, if it chooses, witnesses. The president (or another federal official) is represented by counsel and may appear in person. The Senate votes separately on each article of impeachment, with a two-thirds vote in favor required to convict. If any article of impeachment is approved, the chief justice pronounces the president guilty and thereby removed from office.

Presidential impeachment was regarded by the authors of the Constitution as the last resort to remove a president who seriously threatened the safety and security of the nation. It has been much discussed but rarely used.

Impeachment and Trial of Andrew Johnson

After Andrew Johnson became president following the assassination of Abraham Lincoln, he attempted to follow a policy of reconciliation toward the defeated South. In doing so, he ran afoul of the Radical Republicans who controlled Congress. The situation was exacerbated by politics and personality. Johnson was a Democrat who had remained loyal to the Union but who opposed many Radical Republican policies. Rising from a poor background, he was a proud but often difficult man who made and kept enemies easily. As an unelected president, he was particularly vulnerable to attack.

In 1867 Congress passed the Tenure of Office Act, which permitted the removal of members of the president’s cabinet only by senatorial consent. When Johnson dismissed Secretary of War Edwin M. Stanton, a staunch ally of the Radical Republicans, the House approved eleven articles of impeachment against Johnson on March 3, 1868, and presented them to the Senate on March 5. The trial began on March 30.

Both sides focused on the constitutionality of the Tenure of Office Act. Johnson’s lawyers offered better arguments and appealed to moderate Republicans. Ultimately, only two of the eleven impeachment articles were voted on, and Johnson was acquitted on each by a single vote.

Johnson’s impeachment and trial were clearly motivated by political differences rather than high crimes and misdemeanors. Eleven moderate Republicans voted their conscience and defeated the impeachment. Senator Edmund G. Moss of Kansas, whose single vote decided the issue, was featured in Profiles in Courage, authored by John F. Kennedy.

Nixon and Watergate

In June 1972, during President Richard M. Nixon’s reelection campaign, several burglars were arrested for breaking into Democratic Party National Headquarters at the Watergate complex in Washington, DC. Suspicion grew that the Nixon White House knew of the event and had participated in its cover-up.

For the next two years, the White House alternated between “stonewalling” (refusing to release any evidence) and “limited hang-out” (providing some, but not all, of the evidence). By the spring of 1973, the Senate Select Committee on Presidential Campaigns heard testimony that tape recordings of conversations in the Oval Office held evidence that President Nixon had indeed participated in the cover-up. Nixon sought to withhold the tapes under executive privilege. During the “Saturday night massacre” of October 19, 1973, Nixon dismissed his attorney general, assistant attorney general, and special prosecutor Archibald Cox in an effort to retain the tapes.

On October 30, 1973, the House Judiciary Committee began investigations. In April 1974, it launched a full-scale impeachment inquiry, and it approved the first of three articles of impeachment on July 27, 1974. The underlying theme was that all charges involved violations of the president’s constitutional duties and intended to further Nixon’s personal political interests.

At this point, the Supreme Court ruled eight to zero (Nixon-appointed justice William H. Rehnquist did not participate) that the president must surrender the tapes. The tapes demonstrated that Nixon had indeed known about the cover-up as early as June 20, 1972, and had orchestrated many of the activities. As his congressional support eroded, Nixon understood he faced conviction by the Senate, and he resigned from the presidency on August 9, 1974.

Impeachment and Trial of Bill Clinton

Soon after Democrat Bill Clinton was elected president in 1992, Republican congressional opponents demanded an investigation of numerous alleged Clinton offenses. When Republicans gained control of Congress in 1994, their attacks resulted in the appointment of independent prosecutor Kenneth Starr, who used all means available to secure Clinton’s impeachment. Despite, or perhaps because of, Clinton’s reelection in 1996, the partisan attacks continued, and late in 1998, Starr presented evidence to Congress that Clinton had lied to a grand jury about an affair with a White House intern.

After hearings in the House Judiciary Committee, the full House, voting along party lines, approved the impeachment of Clinton on two counts of perjury and obstruction of justice, on December 19, 1998. In the Senate, with Chief Justice Rehnquist presiding, the House managers presented their case. The Senate rejected suggestions of censuring, rather than trying, the president and opted not to hear witnesses.

On President’s Day, February 14, 1999, the Senate found Clinton not guilty on both counts. Despite Republican control of the Senate, the House’s impeachment articles could not muster a simple majority. The offenses alleged against the president were found not to have risen to the level required by the Constitution.

First Impeachment and Trial of Donald Trump

As American politics became increasingly polarized following the election of Donald Trump in 2016, by September 2019, Nancy Pelosi, the Speaker of the House, announced the decision to officially begin an impeachment investigation against Trump. The event most directly linked to the opening of the inquiry was a phone call that took place between Trump and the president of Ukraine that July. Allegations were made, based in part on a transcript of the conversation, that Trump had betrayed his office and risked national security by asking the Ukrainian president to launch an investigation of Joe Biden, the former vice president who was one of the candidates opposing Trump for the 2020 election, in what was seen as an attempt to discredit him. By mid-December, after the House Judiciary Committee presented two articles of impeachment, one for abuse of power and one for obstruction of justice, the full House voted largely along partisan lines to approve them.

The Senate's impeachment trial, presided over by Chief Justice John Roberts, began in January 2020. In early February, Trump was acquitted by the Senate on both counts.

Second Impeachment and Trial of Donald Trump

After Biden was declared the winner of the 2020 presidential election in November, Trump refused to concede his loss as he made claims of widespread voter fraud and result illegitimacy. Though he and his legal team's challenges to the results did not uncover any evidence of such fraud, he continued to insist in appearances and on social media that the election had been fraudulent and stolen. On January 6, 2021, the day on which members of the House and Senate were meeting to formally confirm the results of the election, Trump held a rally for his supporters. Not long after the congressional sessions began, they were halted when a large group of people protesting the results, deemed to be Trump supporters, violently broke into the Capitol and sieged the building. While the confirmation of Biden's win was completed early the next day, many members of Congress on both sides of the aisle spoke out and expressed condemnation of the attack as a dangerous domestic assault on American democracy. Many argued that Trump and his rhetoric had been involved in inciting this incident and that there was an urgent need, particularly with Trump's presidency set to end in a matter of weeks, to impeach him to address his threat to national security and the violation of his oath of office. The process was subsequently fast-tracked, and on January 13, the House voted to approve one article of impeachment charging Trump with inciting insurrection against the US government, giving examples such as his repeated, false assertions of voter fraud and his words to his supporters on the day of the attack.

Despite Trump leaving office on January 20, impeachment supporters still called for a Senate trial as he could still face penalties such as the loss of his continued financial and security benefits associated with having held the presidency. Though many Republicans voted against proceeding with the trial, the Senate ultimately voted in favor of constitutionality and moved ahead with the trial on February 9. After the prosecution began presenting its case, which included showing previously unseen footage of the Capitol attack, and Trump's defense team made their case in the following days, a Senate vote of 57–43 on February 13 resulted in another acquittal for Trump; while the majority of Republicans did vote for acquittal, it was noted that seven of the party's Senate members voted in favor of finding Trump guilty.

Bibliography

Berger, Raoul. Impeachment: The Constitutional Problems. Cambridge, Mass.: Harvard University Press, 1973.

Black, Charles L. Impeachment: A Handbook. New Haven, Conn.: Yale University Press, 1971.

Egan, Lauren, and Rebecca Shabad. "House Impeaches Trump for Second Time; Senate Must Now Weigh Conviction." NBC News, 13 Jan. 2021, www.nbcnews.com/politics/congress/house-poised-impeach-trump-second-time-incitement-insurrection-n1254051. Accessed 4 Feb. 2021.

Fandos, Nicholas, and Michael D. Shear. "Trump Impeached for Abuse of Power and Obstruction of Congress." The New York Times, 18 Dec. 2019, www.nytimes.com/2019/12/18/us/politics/trump-impeached.html. Accessed 5 Aug. 2020.

Gerhardt, Michael J. The Federal Impeachment Process: A Constitutional and Historical Analysis. Princeton, N.J.: Princeton University Press, 1996.

Herb, Jeremy. "Trump Acquitted at End of Months Long Impeachment Process, Found Not Guilty of Two Articles." CNN Politics, 5 Feb. 2020, www.cnn.com/2020/02/05/politics/senate-impeachment-trial-vote-acquittal/index.html. Accessed 5 Aug. 2020.

Labovitz, John R. Presidential Impeachment. New Haven, Conn.: Yale University Press, 1978.

Lantry, Lauren. "Former President Donald Trump Acquitted in 2nd Impeachment Trial." ABC News, 13 Feb. 2021, abcnews.go.com/Politics/president-donald-trump-acquitted/story?id=75853994. Accessed 16 Feb. 2021.

Naylor, Brian. "Impeachment Resolution Cites Trump's 'Incitement' of Capitol Insurrection." NPR, 11 Jan. 2021, www.npr.org/sections/trump-impeachment-effort-live-updates/2021/01/11/955631105/impeachment-resolution-cites-trumps-incitement-of-capitol-insurrection. Accessed 4 Feb. 2021.