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Impeachment - The Process

Article 1, Section 2 of the US Constitution grants the sole power of impeachment to the House of Representatives:
Clause 5. The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

In practice, the House Judiciary Committee, chaired by the ranking member of majority party, draws up a list of offenses called the "articles of impeachment." If approved by a majority of Committee members, the articles of impeachment are sent to the full House of Representatives. The House then considers the articles of impeachment, and by a simple majority vote, can send the impeachment to the Senate for trial.

Article 1, Section 3 grants the sole power to try all impeachments, to the Senate:

Clause 6: The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

The actual trial is subject to the Senate Rules of Procedure and Practice for impeachments. These rules specify that representatives from the House acting in the role of prosecutors, present the evidence. Following the presentation of the evidence, the impeached individual is summoned to the Senate to respond to the accusations.

Other points of interest include:

  • If the individual fails to appear, the trial can continue, as if the individual had entered a plea of not guilty.
  • The impeached individual may be represented by an attorney.
  • Each party is entitled to one questioner, but Senators may submit written questions.
  • The Senate has the power to compel the attendance of witnesses.
  • The Presiding Officer of the Senate may, at the direction of the Senate, appoint a committee of Senators to receive evidence and take testimony.

Why is the trial conducted in a political body, the Senate, rather than a court of law? The simple answer might be that this was the model used in British law. A more eloquent explanation was presented by Alexander Hamiltion in Federalist Paper Number 65. In this paper, Hamilton recognized the inherent political nature of the Senate:

The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.

But he then went on to point out the advantages of using an elected body for the trial, rather than appointed jurists:

Could the Supreme Court have been relied upon as answering this description? It is much to be doubted, whether the members of that tribunal would at all times be endowed with so eminent a portion of fortitude, as would be called for in the execution of so difficult a task; and it is still more to be doubted, whether they would possess the degree of credit and authority, which might, on certain occasions, be indispensable towards reconciling the people to a decision that should happen to clash with an accusation brought by their immediate representatives. A deficiency in the first, would be fatal to the accused; in the last, dangerous to the public tranquillity.

In addition, Hamilton noted that if the Supreme Court were to adjudicate the impeachment proceedings, it might expose the accused to the equivalent of double jeopardy - being tried twice for the same crime.

The punishment which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. After having been sentenced to a prepetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law. Would it be proper that the persons who had disposed of his fame, and his most valuable rights as a citizen in one trial, should, in another trial, for the same offense, be also the disposers of his life and his fortune? Would there not be the greatest reason to apprehend, that error, in the first sentence, would be the parent of error in the second sentence?

In other words, Hamilton took care to point out that other legal penalties could still fall upon the convicted if prosecuted under ordinary law for criminal acts after leaving office.

< return to Impeachment -- A Guide next: History of Impeachment >

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