U.S. Constitution: Article II

Section 4. Impeachment

Impeachment

Few provisions of the Constitution were adopted from English practice to the degree the section on impeachment was. In England, impeachment was a device to remove from office one who abused his office or misbehaved but who was protected by the Crown. [748] It was a device that figured in the plans proposed to the Convention from the first, and the arguments went to such questions as what body was to try impeachments and what grounds were to be stated as warranting impeachment. [749] The attention of the Framers was for the most part fixed on the President and his removal, and the results of this narrow frame of reference are reflected in the questions unresolved by the language of the Constitution.

During the debate in the First Congress on the ''removal'' controversy, it was contended by some members that impeachment was the exclusive way to remove any officer of the Government from his post, [750] but Madison and others contended that this position was destructive of sound governmental practice, [751] and the view did not prevail. Impeachment, said Madison, was to be used to reach a bad officer sheltered by the President and to remove him ''even against the will of the President; so that the declaration in the Constitution was intended as a supplementary security for the good behavior of the public officers.'' [752] The language of Sec. 4 does not leave any doubt that any officer in the executive branch is subject to the power; it does not appear that military officers are subject to it [753] nor that members of Congress can be impeached. [754]

Judges .--Article III, Sec. 1, specifically provides judges with ''good behavior'' tenure, but the Constitution nowhere expressly vests the power to remove upon bad behavior; it has been assumed that judges are made subject to the impeachment power through being labeled ''civil officers.'' [755] The records in the Convention make this a plausible though not necessary interpretation. [756] And, in fact, twelve of the fifteen impeachments reaching trial in the Senate have been directed at federal judges. [757] So settled apparently is the interpretation that the major arguments, scholarly and political, have concerned the question whether judges, as well as others, are subject to impeachment for conduct which does not constitute an indictable offense and the question whether impeachment is the exclusive removal device with regard to judges. [758]

Impeachable Offenses

Treason is defined in the Constitution; [764] bribery is not, but it had a clear common-law meaning and is now well covered by statute. [765] High crimes and misdemeanors, however, is an undefined and indefinite phrase, which, in England, had comprehended conduct not constituting indictable offenses. [766] In an unrelated action, the Convention had seemed to understand the term ''high misdemeanor'' to be quite limited in meaning, [767] but debate prior to adoption of the phrase [768] and comments thereafter in the ratifying conventions [769] were to the effect that the President at least, and all the debate was in terms of the President, should be removable by impeachment for commissions or omissions in office which were not criminally cognizable. And in the First Congress' ''removal'' debate, Madison maintained that the wanton removal from office of meritorious officers would be an act of maladministration which would render the President subject to impeachment. [770] Other comments, especially in the ratifying conventions, tend toward a limitation of the term to criminal, perhaps gross criminal, behavior. [771] While conclusions may be drawn from the conflicting statement, it must always be recognized that a respectable case may be made for either view.

Practice over the years, however, insofar as the Senate deems itself bound by the actions of previous Senates, would appear to limit the grounds of conviction to indictable criminal offenses for all officers, with the possible exception of judges.

The Chase Impeachment .--The issue was early joined as a consequence of the Jefferson Administration's efforts to rid itself of some of the Federalist judges who were propagandizing the country through grand jury charges and other means. The theory of extreme latitude was enunciated by Senator Giles of Virginia during the impeachment trial of Justice Chase. ''The power of impeachment was given without limitation to the House of Representatives; and the power of trying impeachments was given equally without limitation to the Senate. . . . A trial and removal of a judge upon impeachment need not imply any criminality or corruption in him . . . [but] nothing more than a declaration of Congress to this effect: You hold dangerous opinions, and if you are suffered to carry them into effect you will work the destruction of the nation. We want your offices, for the purpose of giving them to men who will fill them better.'' [772] Chase's counsel responded that to be impeachable, conduct must constitute an indictable offense. [773] Though Chase's acquittal owed more to the political divisions in the Senate than to the merits of the arguments, it did go far to affix the latter reading to the phrase ''high Crimes and Misdemeanors'' until the turbulent period following the Civil War. [774]

The Johnson Impeachment .--President Johnson was impeached by the House on the ground that he had violated the ''Tenure of Office'' Act [775] by dismissing a Cabinet chief. The theory of the proponents of impeachment was succinctly put by Representative Butler, one of the managers of the impeachment in the Senate trial. ''An impeachable high crime or misdemeanor is one in its nature or consequences subversive of some fundamental or essential principle of government or highly prejudicial to the public interest, and this may consist of a violation of the Constitution, of law, of an official oath, or of duty, by an act committed or omitted, or, without violating a positive law, by the abuse of discretionary powers from improper motives or for an improper purpose.'' [776] Former Justice Benjamin Curtis controverted this argument, saying: ''My first position is, that when the Constitution speaks of 'treason, bribery, and other high crimes and misdemeanors,' it refers to, and includes only, high criminal offences against the United States, made so by some law of the United States existing when the acts complained of were done, and I say that this is plainly to be inferred from each and every provision of the Constitution on the subject of impeachment.'' [777] The President's acquittal by a single vote was no doubt not the result of a choice between the two theories, but the result may be said to have placed a gloss on the impeachment language approximating the theory of the defense.

Later Judicial Impeachments .--With regard to federal judges, however, several successful impeachments in this Century appear to establish that the constitutional requirement of ''good behavior'' and ''high crimes and misdemeanors'' may conjoin to allow the removal of judges who have engaged in seriously questionable conduct, although no specific criminal statute may have been violated. Thus, both Judge Archbald and Judge Ritter were convicted on articles of impeachment that charged questionable conduct probably not amounting to indictable offenses. [778] It is possible that Members of Congress may employ different standards with regard to judges who have life tenure than they do with regard to other officers of the Government who either serve for a term of years or who serve at the pleasure of others who serve for a term of years, but such a differentiation places a substantial burden upon the language of the Constitution.

With regard to the three most recent judicial impeachments, Judges Claiborne and Nixon had previously been convicted of criminal offenses, while Judge Hastings had been acquitted of criminal charges after trial. The impeachment articles charged both the conduct for which he had been indicted and trial conduct. Clearly, he was charged and convicted with criminal offenses, it being a separate question what effect the court acquittal should have.

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So, who is going to demand an impeachment trial for President Barack H. Obama? There is certainly a MOUNTAIN of evidence against this guy.

Citizens of the United States v. Barack H. Obama