James Bryce, in his landmark commentary The American Commonwealth, wrote that impeachment "is like a one-hundred ton gun which needs complex machinery to bring it into position, an enormous charge of powder to fire it; and a large mark to aim at."
Like a 100-ton gun, impeachment is seldom used but remains a bedrock of our democracy; necessary, as was said at the Constitutional Convention, "to guard against perfidity of the Chief Magistrate" (James Madison of Virginia), or when "great crimes were committed" (William Davis of North Carolina). James Iredell elaborated during the North Carolina ratification debates that impeachment was intended to guard against "tyranny and oppression as when the President gives false information to the Senate to induce them into measures injurious to their country."
Impeachment has roots deep in our history. The colonies had suffered the wrath of imperial royal governors. This experience burned into their consciousness the political axiom that unchecked executive power leads to tyranny. With independence in 1776, they wrote impeachment clauses into their constitutions to prevent grave abuse by official authority. North Carolina, for example, authorized the removal of high officials "for offending against the state by violating any part of this constitution"; Virginia, for "offending against the state by which the safety of the state may be endangered."
This theme continued when our founding fathers met in Philadelphia in 1787. Early on during the convention, Roger Sherman of Connecticut suggested that the national legislature have the authority to remove the president "at its pleasure," the practice in seven states. George Mason of Virginia was "shocked at the proposal to make the Executive the mere creature of the Legislature." John Dickinson of Delaware proposed that the executive be removable "on the request of a majority of the legislatures of the individual states." Alexander Hamilton of New York objected to this "rudderless method of ousting a President" and counter-suggested he be removed for "corrupt conduct" and trial by a court composed "of the Chief Judge of each State."
As the weeks wore on and the debate continued, Gouverneur Morris of Pennsylvania, "fearing for the independence of the executive," opposed the very concept of impeachment. But then, "recalling that Charles II of England was bribed by Louis XIV of France," Morris became "sensible to the necessity of impeachment" and suggested it be available "for treachery." The delegates rephrased this to mean "treason or bribery," and those words went unchallenged until the very final days of the convention. Then, George Mason noted that the phrase might not reach many "great and dangerous offenses." He suggested adding the words "other high crimes or misdemeanors." This was agreed to without debate.
It went this way to a committee on style and came back as we know it in Article II of the U.S. Constitution: "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 founders not only limited the grounds for impeachment, they created a complex machinery as a brake on emotional impulse.
Article 1 of the Constitution gives the House of Representatives the "sole Power of Impeachment," a role comparable to that of a grand jury. Impeachment is initiated when a member proposes a resolution to investigate. The House votes on whether to refer the matter to a committee (usually the Judiciary Committee). The committee holds hearings and may vote to issue a report favoring impeachment. If so, the report is debated and voted up or down by the House. If the House majority votes impeachment, it notifies the Senate and appoints "managers" to argue the case before the Senate.
The Senate has the "sole Power to try all Impeachments." It acts like a court, hearing evidence and examining witnesses. The Chief Justice presides when the president is the target. At the close of the trial, the senators vote. A two-thirds vote of the senators present is required to convict.
If the Senate votes to impeach, the only penalties are "removal from Office" and "disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States." But the person so convicted remains liable to indictment, trial, judgment and additional punishment by other tribunals "according to Law."
British Lord Chancellor Somers wrote in 1691 that "the Power of Impeachment ought to be like Goliath's sword, kept in the temple, and not used but on great occasion."
That has been the American practice. Impeachment is fueled by an enormous charge of powder and a large mark to aim at.
Here are the stories of the handful of impeachment proceedings in our history: a senator, a secretary of war, 12 federal judges and three presidents.
William Blount (1797-99)
William Blount, a North Carolinian, had served loyally with Washington as paymaster general of the Revolutionary Army, and later represented North Carolina at the Constitutional Convention. He then moved to Tennessee, where he acquired large land holdings and was elected to the Senate.
President Washington appointed him Governor of the Territory South of the Ohio River. For political and economic reasons Blount betrayed his trust. He raised an armed band of frontiersmen and Creek and Cherokee Indians to drive the Spanish from Florida and Louisiana. When word leaked out to President Adams, the nation was shocked. Abigail Adams wrote, "When shall we cease to have Judases?" and President Adams notified the House and Senate. Within a week the House impeached Blount for conspiring to carry on a military expedition against Spanish territory in violation of the Neutrality Act. The Senate expelled him for "disorderly behavior" and dismissed the impeachment charge on the theory that senators are not "civil officers" within the meaning of the impeachment clause.
Disgraced in Washington, Blount returned to Knoxville where he was elected speaker of the Tennessee legislature.
William W. Belknap (1876)
William Belknap (right) served as Secretary of War during the corrupt Grant administration. He was paid $12,000 annually by a middleman to sell the lucrative "port trader" positions at army posts. The House impeached him for bribery and he promptly resigned. The Senate took the case and a majority (but not the required two-thirds) ruled to convict. The minority thought the resignation ended the case, as the principal punishment available to the Senate was removal from office.
Judges John Pickering (1803-04)
and Samuel Chase (1804-05)
Pickering and Chase are considered together as they were, in a sense, political victims.
In 1787, as election neared, President Adams and the Federalist-controlled Congress passed a sedition law that made it illegal to criticize the United States, the president or members of Congress. Jeffersonian candidates and supporters suffered the fangs of this law.
Vermont Congressman Matthew Lyon was the first victim, jailed when he described Adams as having "an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice." Vermont editor Anthony Haswell was sentenced to two months in jail when he wrote that Lyon "is holden by the oppressive hand of usurped power." A New York Jeffersonian senator was arrested when he circulated a petition for the repeal of the law. When Adams campaigned in Newark, N.J., the local artillery company fired a salute in his honor. A bystander outside a pub was convicted when he wished "the wadding from the cannon had been lodged in the President's backside."
Jefferson won the election and it was payback time. Congress let the law expire, repaid all fines, and went after those who had enforced the law with partisan vengeance.
Pickering, the federal district judge in New Hampshire, was impeached first--for appearing on the bench in a smuggling case against a political ally "in a state of total intoxication ... and did then and there frequently, in a most profane and indecent manner, invoke the name of the Supreme Being, to the evil example of all the good citizens of the United States." Blasphemy was a crime, and the Senate, by party line vote, voted to convict.
Within an hour, the House voted to impeach Supreme Court Justice Samuel Chase, primarily for his repeated jury instructions "if a man attempts to destroy the confidence of the people in their ... supreme magistrate ... he eventually saps the foundation of the government."
Chase was a terror on the bench. In the sedition cases he "bullied counsel, browbeat witnesses, and ruled juries." His friend and Senate impeachment witness Chief Justice John Marshall admitted on cross-examination that Chase was "tyrannical, oppressive and overbearing." These are not "high crimes and misdemeanors," and the Senate voted to acquit.
James H. Peck (1830-31)
James Peck, judge of the District Court in Missouri, presided at a trial brought by early settlers claiming title to land under grants issued by the Spanish Crown prior to the Louisiana Purchase. Much was at stake, and Peck ruled against the settlers. To mollify the public outcry, Peck wrote a newspaper article. The attorney who lost the case wrote an article in a rival paper, rebutting Peck point by point. Angry at the public rebuff, Peck ordered the lawyer's arrest, held him in contempt, sentenced him to jail, and disbarred him from federal practice.
The House impeached Peck for his gross abuse of power. The Senate voted to acquit because no crimes were charged and abuse of authority is not an impeachable offense.
Congress did, however, limit the contempt power of judges to misbehavior "in the presence of the said court, or so near there to obstruct the administration of justice."
West H. Humphreys (1862)
West Humphreys is the only person impeached and convicted of treason. He had resigned his federal judgeship and accepted a comparable post in the Confederacy.
Charles Swayne (1903-05)
Charles Swayne was appointed by Republican President Benjamin Harrison to the District Court in Florida. His mission was to convict Florida Democrats who denied African Americans the right to vote. His nomination was opposed by all Senate Democrats. Swayne was relentless in his task, extending court sessions to bring all offenders to justice.
This fueled the fires of impeachment. It was charged that he always claimed the allowable maximum $10 per diem expense whether he spent that much or not; that when not holding court in Florida he lived in Delaware though the law required he live in his judicial district; and that he accepted a free ride to California for himself and his wife from a national railroad then in his bankruptcy court.
Swayne argued that the charges were not "High Crimes or Misdemeanors." The Democratic House voted to impeach; the Republican Senate voted to acquit.
Robert W. Archbald (1912-13)
Judge Archbald served on the United States Commerce Court. It was created by President William Howard Taft to review the decisions of the Interstate Commerce Commission. Increasingly, the commission ruled for the consumers, and increasingly the court ruled for the railroads on appeal. It was the fulcrum of bitter political controversy. Teddy Roosevelt promised to abolish the court if elected president. The judges of the court were ready targets.
The House impeached Archbald for: 1) accepting a free trip from himself and his family from a railroad, and 2) accepting a "purse" (bribery) from some lawyers who practiced before him. The Senate voted to convict.
George W. English (1926)
The House passed five articles of impeachment against English, who was a U.S. District Court judge in Illinois. They said he unlawfully disbarred lawyers who came before him, demeaned state and local officials whom he'd called in to discuss an imaginary case, and threatened two reporters with imprisonment. He resigned five days before his trial was scheduled to start, and the Senate voted to cancel the proceedings.
Harold Louderback (1933)
Louderback served on the United States District Court in California. He owed his appointment to Sen. Samuel Shortridge, and reciprocated by appointing the senator's son to a lucrative position in bankruptcy cases that came before him.
The House impeached for "favoritism in the appointment of competent receivers" and "allowance of excessive fees." But as no money flowed to the judge (bribery), the Senate voted to acquit.
Halsted L. Ritter (1936)
Ritter, a native of Colorado, moved to Florida for his health. President Calvin Coolidge appointed him to the bench. Republicans and Democrats alike opposed the appointment of this "outsider."
Ritter had appointed a former law partner to a receivership with a fee of $75,000 and took a kickback of $4,500. He failed to report the payment on his income tax return. The House voted to impeach, and Senate Democrats, with the aid of five maverick Republicans, voted to convict.
Harry E. Claiborne (1986)
Judge Claiborne of Nevada was indicted and convicted of tax evasion (he failed to report bribes) and sent to prison. He demanded an impeachment trial and refused to resign his judgeship. He continued to draw a salary and announced he would resume judicial functions upon his release. The House then voted to impeach, and the Senate voted to convict and removed him from office.
Alcee L. Hastings (1988)
Judge Alcee Hastings, from Florida, was criminally indicted for conspiracy to take a bribe. The jury found him not guilty (the co-conspirator had pleaded guilty to bribing the judge to go easy on a narcotics client), but the House did not like the verdict and impeached the judge. The Senate convicted. As punishment, the Senate removed Hastings from office but neglected to disqualify him from holding other offices under the United States. Hastings was elected to Congress, and sits there today with those who voted to impeach.
Walter L. Nixon Jr. (1988)
Judge Nixon of Mississippi took money from a businessman and asked the district attorney to go easy on the businessman's son. He lied about this to the grand jury and was sentenced to prison. Like Claiborne, he refused to resign, continued to draw his pay, and remained anxious to resume his judicial functions.
The House then decided it had better impeach and did so, for: 1) giving false testimony to the grand jury, and 2) bringing disrepute to the federal judiciary. The Senate convicted Nixon of the former charge but ruled that the latter was not an impeachable offense.
This handful of completed cases represents the extent of formal impeachment of federal judges, but the impeachment power is not insignificant. More than 60 additional judges have faced charges on the floor of the House, on average one every three or four years. Some were immediately cleared, but most resigned rather than face impeachment proceedings.
This takes us on to the impeachment proceedings against three presidents.
Andrew Johnson (1868)
Andrew Johnson was an accidental president. A Democrat from Tennessee, Johnson was picked by Lincoln (a Republican) as running mate to help pick up Democratic and border state votes. Then came Lincoln's assassination and post-war Reconstruction.
Early on, the Congress and Johnson were at loggerheads. The president wanted reconciliation and was generous with his pardons. Thaddeus Stevens, who led the radical Republicans in Congress, thought "hell wasn't hot enough for the rebels" and advocated rigorous punishment. Secretary of War Edwin Stanton also clashed savagely with the president over keeping military rule in the South.
Friction grew between the president and Congress. Congress passed a Civil Rights Bill and Johnson vetoed it. Congress passed a Freedman's Bureau Bill (40 acres and mule) and Johnson vetoed it. So it went, one Reconstruction bill after another. A clash was inevitable. It came when Johnson decided to fire Stanton and replace him with his own man, Lorenzo Thomas.
Congress would have none of this and passed a Tenure of Office Act requiring the president to obtain the "advice and consent" of the Senate before replacing any officer who had been appointed with the "advice and consent" of the Senate. Johnson defied the law, discharged Stanton and replaced him with Thomas.
Stanton refused to vacate his office and Thaddeus Stevens immediately prepared impeachment charges, arguing primarily that Johnson had failed "to take care that the laws be faithfully executed," particularly the law relating to the dismissal of Stanton. The Senate voted to acquit 35 to 19, one vote short of the two-thirds majority required to convict.
Johnson finished his presidential term, and then was elected to the Senate from Tennessee. When he died, per his instructions, he was wrapped in an American flag with his head at rest on the Constitution.
Richard M. Nixon (1974)
This sequence of events became known as the "Saturday Night Massacre," and set in motion plans for Nixon's impeachment. The charges were that he had "repeatedly engaged in conduct violating the constitutional rights of citizens"; impeded "the due and proper administration of justice"; and contravened "the laws governing agencies of the executive branch." In simple language, Nixon burglarized, wiretapped, turned the IRS loose against political enemies, misused the CIA and misled the FBI. He resigned rather than contest the issues.
It might be noted that Nixon's vice president, Spiro Agnew, was indicted for crimes related to bribery. Initially he argued that criminal indictment and trial must follow, not precede impeachment and removal from office. Otherwise, the vice president might be in prison, still obligated to preside over the Senate, still next in line for the presidency. It's just too unseemly. Subsequently, Agnew struck a deal with the prosecution--resigning his office and paying a fine. Which must come first, impeachment or criminal trial, was not resolved. President Nixon then nominated Gerald Ford to be vice president. Ford assumed the presidency when Nixon resigned and nominated Nelson Rockefeller to the vice presidency.
Bill Clinton (1998-99)
Clinton was popular with the Democrats and the country but was the bête noire of the Republicans. He beat them twice. He also was a "womanizer." Word of this surfaced during his first campaign but came to naught when he confessed on television and his wife, Hillary, said she would "stand by her man."
In his second term, Clinton was sued by Paula Jones for sexual harassment when he had been governor of Arkansas. During a deposition, he was asked if he had had sex with another woman, a young White House intern named Monica Lewinsky. Clinton then said "no" under oath, but later admitted that he had.
The framers of our Constitution did not consider illicit sex an impeachable offense. The ink was hardly dry on the Constitution when Secretary of Treasury Alexander Hamilton admitted to an affair and to paying hush money to the husband. The investigative committee (Rep. Abraham Venable, Speaker Frederick Muhlenberg and then-Senator, later President, James Monroe) reported that this was a private, not a public, matter. President Washington, Vice President Adams and Secretary of State Jefferson agreed.
So matters stood until the Lewinsky affair. The Republican House, on a mostly party line vote, impeached Clinton for perjury, and the Democratic Senate, also on a mostly party line vote, acquitted.
This takes us to George W. Bush.
The president misled us into a grinding war in Iraq with false reports of toxic weapons of mass destruction, close ties to Al Qaeda terrorism, and the specter of nuclear mushroom clouds.
There is more. George Bush has snuffed out the constitutional rights of due process for hundreds we hold in captivity: a "speedy and public trial"; the right to confront hostile witnesses, to have compulsory process for obtaining witnesses, and the assistance of counsel. These are bedrock demands of democracy, the "blessings of liberty" secured to ourselves and our posterity, the beacon of liberty we proudly hold on high.
These may or may not be "high Crimes and Misdemeanors," but they provide the "enormous charge of power" required to bring the 100-ton impeachment gun into position.
But "high Crimes and Misdemeanors" abound:
In fact, Bush has claimed in "signing statements" that he can ignore provisions of more than 750 laws he has signed.
It is time to take Lord Chancellor Somers' "Goliath sword" from the Temple.
But is this not just academic blather? A majority of the House must vote to impeach; two-thirds of the Senate to convict. And if Bush is somehow removed from office, the 25th Amendment provides that the "Vice President shall become President"; Vice President Dick Cheney would then nominate a vice president (Condoleeza Rice?) who would take office "upon confirmation by a majority vote of both Houses of Congress."
Prospects are bleak. But are we not obligated to speak out? The greatest danger to democracy lies in an inert populace. One person throwing pebbles can make ripples. But if a second and third person join in, the pond is full of waves, maybe breakers. That is the theory and hope of democracy.
Rosa Parks had no idea what would follow when she refused to move to the back of the bus. Good things can happen--it's worth a try.
Daniel H. Pollitt is professor of law emeritus at UNC-Chapel Hill.