How Impeachment Works


The people are often the ones who demand impeachment. Here, retired Air Force Gen. John Douglass is calling for impeachment of President Donald Trump at the Tax March rally held on the west lawn of the U.S. Capitol on April 15, 2017. Tom Williams/CQ Roll Call/Getty Images
The people are often the ones who demand impeachment. Here, retired Air Force Gen. John Douglass is calling for impeachment of President Donald Trump at the Tax March rally held on the west lawn of the U.S. Capitol on April 15, 2017. Tom Williams/CQ Roll Call/Getty Images

At around 12:30 p.m. on Saturday, May 16, 1868, Senator Edmund Ross of Kansas sat at his desk in the Senate chamber shredding paper into smaller and smaller pieces until his lap and feet were covered in scraps of white. The stress must have been getting to him. One by one, all around him the voices of his fellow senators were answering a single question from Chief Justice Salmon Portland Chase: "Mr. Senator, how say you?"

On that day, the senators of the United States were voting, for the first time in the nation's history, whether to impeach their commander in chief President Andrew Johnson. Johnson had been Abraham Lincoln's vice president and moved into the Oval Office after Lincoln's assassination in April 1865. By December of that year, the new president's Republican opponents in Congress were beginning to rail against him, and a year later they would begin the first in a series of attempts to impeach him.

In the wake of the Civil War, U.S. Representative Thaddeus Stevens and his followers felt that Johnson had failed to stop the brutalization of freed slaves by their previous owners, and was likewise ceding control of the Southern states to former Confederates.

Now at last, Congress had the opportunity to do something about the situation. To impeach a president requires a so-called "super-majority," or two-thirds, of the Senate vote. The problem was that in the time leading up to the impeachment vote, corruption, backroom deals and bribery had been rife.

As a result, it was, by this time known exactly how all the senators were going to vote. All, that is, except for Edmund Ross of Kansas. Ross was the lynch pin, the fulcrum, the straw that could break the proverbial camel's back. Hence the anxious paper-shredding routine as he waited for his name to be called. Senator after senator voted exactly as expected. Finally, the chief justice said the words everyone was waiting to hear, "Mr. Senator Ross, how say you?"

Edmund Ross rose from his chair, his face as white as the shredded paper falling from his lap. He felt, as he would later say, as though he were facing death. Nevertheless, he quickly and clearly declared, "Not guilty."

A sigh went through the chamber, whether of disappointment or relief, it was difficult to say. Although the voting continued, everybody now knew what the final result would be: The first effort to impeach a U.S. president had failed by a single vote [source: Stewart].

The Roots of Impeachment

Benjamin Franklin and the other Founding Fathers included a provisions in the U.S. Constitution to remove a president or other federal officials from office for engaging in treason, bribery or something called "high crimes and misdemeanors." Bettmann/Contributor/Getty Images
Benjamin Franklin and the other Founding Fathers included a provisions in the U.S. Constitution to remove a president or other federal officials from office for engaging in treason, bribery or something called "high crimes and misdemeanors." Bettmann/Contributor/Getty Images

The French word "empecher" means "to prevent," and is related to the English word, "impede." Both have origins in the Latin term, "impedicare," which means "to fetter." Impeachment, then, has roots in the idea of putting a stop to movement [source: Merriam-Webster].

In his study of the origins of impeachment, British legal historian T.F.T. Plucknett agrees with the general consensus that the procedure makes its first appearance in the English Parliament of the 14th century. During that era, Plucknett writes that impeachment evolved from a series of high profile criminal proceedings. In particular, he notes a shift from the trial of Roger Mortimer in 1330 to the case of Chief Justice Willoughby in 1341. In the first, "notorious facts" as voiced by "the clamor of the people," concerning Mortimer were enough to condemn him to death for arranging the murder of King Edward II. In the latter, "notorious facts" were required to put Willoughby on trial, but they did not result in his immediate conviction [source: Plucknett].

By the 19th century, the Westminster parliamentary system had evolved to the point where impeachment was a largely redundant process. If a high official, say a prime minister, for instance, was so terrible that nobody could stand him anymore, his party colleagues in Parliament could simply vote no-confidence and effectively remove him from power without resorting to a lengthy trial [source: Plucknett].

But in Philadelphia in 1787, as the framers of the U.S. Constitution scribbled away at the new nation's founding document, they decided they should probably stick in a few words about how to get rid of egregiously bad federal officials, presidents in particular. That old medieval invention seemed as good as any. As Ben Franklin famously pointed out at the time, without recourse to impeachment, the only alternative way of dropping a bad president was assassination [source: Stewart]. This, it went without saying, was a method to be strenuously avoided.

So, Franklin and his colleagues sketched out a few lines about how a president or other federal official who engaged in treason, bribery or something called "high crimes and misdemeanors," was just begging to be removed. In such cases, says the constitution, Congress has the power to dump the chief executive and turn things over to the vice president.

Franklin and the founders wrote the entire process up in just a few sentences. As the constitutional scholar, David O. Stewart has pointed out, the framers had a lot of ground to cover when they wrote the Constitution, so their brevity about impeachment is understandable. Still, it has come back to bedevil every subsequent impeachment trial. And that maddeningly imprecise phrase, "high crimes and misdemeanors" has caused particular angst.

Impeachment, U.S. Style

Impeachment proceedings start in the House of Representatives, which requires a majority vote to impeach. Here the House Judiciary Committee debated on the possible impeachment of President Richard Nixon in 1974. Bettmann/Contributor/Getty Images
Impeachment proceedings start in the House of Representatives, which requires a majority vote to impeach. Here the House Judiciary Committee debated on the possible impeachment of President Richard Nixon in 1974. Bettmann/Contributor/Getty Images

Treason and bribery are fairly easy to define and if a U.S. president or other federal official is accused of one of those crimes, the impeachment proceedings are on reasonably solid ground. But what about "high crimes and misdemeanors"?

It turns out that when the founders first drafted the standards for impeachment (Article 2, Section 4 of the constitution), they only listed treason and bribery as the actions that could trigger the process. But a framer by the name of George Mason pointed out that a federal official could try to "subvert the Constitution" without committing treason or deploying bribery. He tried shoe-horning in the term "maladministration," but James Madison found the word unclear.

So Mason took it out and shoved in "high crimes and misdemeanors," failing completely to clarify the matter [source: Stewart]. By that time, we have to assume, the framers had reached peak revision-fatigue and just left those four words in as place-savers until better vocabulary could be wrought. This eventuality failed to materialize.

The problem has vexed scholars, lawyers, officials and impeachment procedures ever since. Taking out "maladministration," seems to indicate that simply being bad at the job of commander in chief isn't enough to get you fired. The "crimes" part of "high crimes," would seem to suggest that a president has to commit a crime while in office, but some have argued that saying "high crimes and misdemeanors" means they're of a different order and indicate a betrayal or subversion of the political office.

In other words, for some people it's all about the crimes and for others it's all about the politics. This confusion is of a piece with the dual, or hybrid nature of impeachment, a process which looks, sounds, talks and walks like a judicial proceeding, but has a purely political result — removal from office. In other words, impeaching a president doesn't send him (still him, so far) to jail.

An impeachment procedure starts life in the House of Representatives where there's a vote to impeach on at least one of the articles (treason, bribery or the infamous high crimes and misdemeanors). If the vote gets a majority, the president is officially impeached, which amounts to the political equivalent of a criminal indictment. To be impeached, in other words, is to be officially accused of a wrongdoing worthy of removal from office [source: Savage]. But if you're an impeached president, the fat lady hasn't sung yet.

Next, the matter moves to the Senate. There, a group of representatives from the House comes along to perform duties equivalent to criminal prosecutors. But since this isn't a prosecution, they're not called prosecutors, they're called — for reasons unknown — the "managers." The managers argue their case before the Senate, which stands in here for a jury. At the end of the impeachment trial, the senators vote.

To find a president guilty of the charges laid, fully two-thirds of the Senate must vote "guilty" [source: Savage]. If they do, the POTUS is potted. He's goners. But if the vote is anything less than two-thirds against he gets to stay. This is why a president can be impeached by the House but acquitted by the Senate and thus remain in office.

U.S. Presidential Impeachments

President Bill Clinton became only the second president in history to be impeached. He was ultimately aquitted by the Senate, and spoke from the Rose Garden on Feb. 12, 1999, saying he was "profoundly sorry." Richard Ellis/Contributor/Getty Images
President Bill Clinton became only the second president in history to be impeached. He was ultimately aquitted by the Senate, and spoke from the Rose Garden on Feb. 12, 1999, saying he was "profoundly sorry." Richard Ellis/Contributor/Getty Images

Thus far, nearly two-and-a-half centuries into the nation's history, only three presidents have been faced impeachment proceedings. The first, as described in the introduction, was Andrew Johnson, the second was Richard Nixon and the third was Bill Clinton.

In the case of Andrew Johnson, Congress passed a piece of legislation called the "Tenure of Office Act," which was designed to stop the president from firing a cabinet member without Congress's approval. It's pretty clear they were hoping he would break this law and it should be noted that the act was later struck down as unconstitutional. But while it lasted, it served its purpose because Johnson duly fired his Secretary of War and the House quickly issued Articles of Impeachment. As we said earlier, the effort to get rid of Johnson was doomed to fail by just one vote.

Richard Nixon's presidential career began to nose-dive after it was discovered that he and his administration used a variety of dirty tricks and illegal methods to sabotage the Democratic party, most notably breaking into the Watergate hotel. When he lost the support of his own party, it became clear that he would likely be impeached and almost certainly removed from office. But Nixon deprived Congress of that satisfaction and, in a "you're-fired-I-quit" scenario, he resigned.

Bill Clinton was infamously caught perjuring himself when he lied to a grand jury about his relationship with a White House intern named Monica Lewinsky. On the strength of that perjury, the Republican-dominated House of Representatives voted to impeach him. The proceedings then moved to the Republican-led Senate. Because the constitutional wording for trials of impeachment in Article 1, Section 3 are so brief, there are no set rules as to how the Senate trial must proceed. Essentially, the senators made it up as they went along.

For instance, during Bill Clinton's impeachment, the Senate decided to give the "managers" only four days to present their case and the president's defense team four days to defend him. As for witnesses, it wasn't even clear if any would be permitted to testify at all. Eventually a few gave videotaped depositions [source: Savage].

The fact that the Senate, which essentially serves as the jury in these proceedings, can determine the rules of the trial, underlines how unique a process impeachment is. It's hard to imagine a jury in a criminal case dictating how long an opening statement can be. In any case, the impeachment process foundered when the Senate acquitted Clinton with a 50-50 vote, far short of the two-thirds required to convict [source: Savage].

Who Else Has Been Impeached?

Demonstrators protestested for the impeachment of Brazilian President Dilma Rousseff in 2016. She was ultimately convicted and is standing trial to annul the results of her 2014 presidential win. Victor Moriyama/Getty Images
Demonstrators protestested for the impeachment of Brazilian President Dilma Rousseff in 2016. She was ultimately convicted and is standing trial to annul the results of her 2014 presidential win. Victor Moriyama/Getty Images

As historian David O. Stewart has noted, when Congress undertakes an impeachment process, it's like writing on water. There's so little guidance in the standards of impeachment, and legal precedent is thin on the ground. That said, there is a small body of legal history to reference — more, in any case, than the three presidential proceedings mentioned earlier. That's because U.S. presidents aren't the only ones who can be impeached. The impeachment provisions state that Congress can remove the president, vice president and all civil officers [source: U.S. House of Representatives].

In fact, while Andrew Johnson was the first president to be impeached, his was not the first impeachment trial. That (dis)honor belongs to one William Blount, senator of North Carolina who, in 1797 was believed to have provoked an American Indian rebellion in Florida to help the British. He managed to escape conviction, but nevertheless got expelled by a two-thirds vote from his fellow senators [source: U.S. House of Representatives].

Blount's case was the first of more than 60 impeachment proceedings undertaken by the House of Representatives since then. Fewer than a third of those proceedings ran their full course. The bulk of those— 15 in total — were trials of federal judges. Statistically, therefore, it makes sense that the eight impeachment proceedings that have resulted in actual convictions and removals have been those conducted against said federal judges for everything from drunkenness and tax evasion to accepting a bribe and perjury. Aside from three presidents, one senator and 15 judges, the House also once took on a cabinet secretary named William Belknap for corruption in 1876 [source: U.S. House of Representatives]. He was acquitted.

And of course, the U.S. isn't the only country to have impeachment provisions baked into its constitution. Many other countries adopted similar legislation when writing up their national laws, perhaps most notably Brazil. The South American country has the distinction of having impeached no fewer than two presidents in just 24 years. The first was in 1992 when Fernando Collor pulled a Nixon-style resignation before things got too hot for him. His reputation for corruption was so malodorous that few were sad to see him go. But Brazil's more recent 2016 trial of Dilma Rousseff has been far more divisive, leading to accusations that her opponents were carrying out a legal coup d'état. However, the trial did follow all of the established rules [source: The Economist]. One thing's for sure, as Ben Franklin would say, for all its faults, impeachment is a lot better than the alternative.

Author's Note: How Impeachment Works

I was in high school when the Iran-Contra scandal took over the news and I was glued to the live broadcasts of the Congressional hearings in which Oliver North was grilled for info. For those who don't remember, Oliver North was accused of engineering an illegal scheme whereby the Reagan administration secretly sold arms to Iran in exchange for help freeing American hostages from Lebanon. Since North then had to do something with the illegal funds he got from Iran, he used them to help finance the Contra guerrillas in Nicaragua. Many people were convinced that Ronald Reagan knew full well what was going on, but he steadfastly denied any knowledge of it. At the time, I was convinced the Reagan would be impeached. But not only did he emerge relatively unscathed from the scandal, stickers shouting, "Ollie for President!" soon adorned bumpers everywhere. That was my first inkling that politics and the law were not synonymous.

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Sources

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