For the second time in 13 months, the U.S. House of Representatives has voted to impeach President Donald J. Trump. The decision of whether the president will be found guilty now goes to the U.S. Senate, where the question faces an uncertain political and legal road ahead.

The Senate has yet to announce when it would convene a trial although outgoing Senate Majority Leader Mitch McConnell, R-Ky., indicated on Jan. 13 that he would not agree to call the Senate back into session before its scheduled Jan. 19 session. President-elect Joe Biden takes office the next day.

The Constitution Center, a private, nonprofit organization, recently wrote that it is an open question for whether a Senate impeachment trial can legally occur after the president leaves office. It noted however, that in 1876 a former secretary of war who allegedly took kickbacks was impeached by the House and acquitted by the Senate after he resigned his office.

Since the first impeachment proceeding in 1797, the U.S. House of Representatives has initiated impeachment proceedings more than 60 times against top U.S. civil officials, including against four U.S. presidents — Andrew Johnson in 1868, Richard Nixon in 1974, Bill Clinton in 1998 and President Donald Trump in 2019 and now again in 2021. Under the U.S. Constitution, the House has the “sole power” to begin an impeachment inquiry, and the Senate alone has the power to try an impeachment case referred by the House. Read more …

Despite this long history, the impeachment process raises several questions related to congressional rules and constitutional law. These include what is meant by the Constitution’s term “high crimes and misdemeanors” and what is the nature of the trial the Senate must conduct if the House files articles of impeachment.

The language regarding impeachment dates to centuries-old English law and represents a compromise of the Founding Fathers. One difficult issue was determining the seriousness of an offense that would lead to impeachment. The Founding Fathers debated whether an impeachable offense must reflect “corrupt conduct” or merely “malpractice or neglect of duty.”

Another sticky issue faced by the Founders was who should be the jury: The Senate, a judicial panel or a combination of the two? In arguing for the Senate, Alexander Hamilton summarized in Federalist No. 65 in 1788 the intent of impeachment: “Is it not designed as a method of NATIONAL INQUEST into the conduct of public men?”

The final language in Articles I and II of the U.S. Constitution gives the House of Representatives the “sole power” to impeach a federal officer by majority vote, a process akin to an indictment by a grand jury. The Constitution gives the Senate “sole power” to try all impeachment cases and requires “concurrence of two thirds of the members present.” The Constitution also states the chief justice of the U.S. Supreme Court will preside at a Senate trial for presidential impeachments.

Over the decades, the Senate has conducted formal impeachment proceedings 20 times, resulting in eight acquittals, eight convictions (all federal judges), three dismissals and one resignation. Presidents Johnson, Clinton and Trump last year were the most notable to be found not guilty by the Senate after the House voted to impeach. In addition to trying impeachment charges, the Constitution gives the Senate the power — without mentioning a vote count — to disqualify a convicted officer from holding public office again. Under Senate rules, disqualification has happened twice, both by majority vote and involving federal judges (see footnote 856).

With high-profile impeachment inquiries, such as those involving Clinton and now Trump for the second time, the debate over what the Founding Fathers meant by “high crimes and misdemeanors” reignites. In an unsuccessful attempt to impeach U.S. Supreme Court Justice William O. Douglas in 1970, then-U.S. Rep. Gerald Ford of Michigan — who later became vice president and then president after Nixon’s resignation — provided this blunt assessment: “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”

Individual senators decide for themselves whether the official must have committed an indictable offense to be convicted; no Senate rule or constitutional provision imposes that requirement.

The U.S. Supreme Court last weighed an impeachment issue in 1993. Then former U.S. District Court Judge Walter Nixon of Mississippi, who was tried in federal court and convicted of perjury and removed through impeachment, challenged the use of a Senate committee “to receive evidence and take testimony,” rather than the full Senate.

His counsel argued that the Constitution required the full Senate to hold a trial. But, the U.S. Supreme Court unanimously held the question was not reviewable by the courts, citing the language in the Constitution that says “the Senate shall have the sole power to try all impeachments."

“While courts possess power to review legislative action that transgresses identifiable textual limits, the word ‘try’ does not provide such a limit on the authority committed to the Senate,” Chief Justice William Rehnquist wrote, extending what is known as the “political question doctrine” to impeachments.

In the 1999 Senate trial of Clinton, the Senate considered a motion to dismiss the case shortly after its outset. The motion, which required a simple majority vote and not a two-thirds vote, failed. But neither the Senate’s impeachment rules nor the Constitution specifically addresses that possibility.

Posted 10/4/2019 and updated 12/19/2019 and 1/13/2021

American Bar Association

Ethics and Environmental Practice