I have written several articles on postings related to politics. A list of links have been provided at bottom of this article for your convenience. This article will, however address different aspects on these political events.
The Constitution of the United States gives Congress the authority to remove the president of the United States from office in two separate proceedings. The first one takes place in the House of Representatives, which impeaches the president by approving articles of impeachment through a simple majority vote. The second proceeding, the impeachment trial, takes place in the Senate. There, conviction on any of the articles requires a two-thirds majority vote and would result in the removal from office (if currently sitting), and possibly debarment from holding future office.
Three United States presidents have been impeached, although none were convicted: Andrew Johnson in 1868, Bill Clinton in 1998, and Donald Trump in 2019 and 2021. Trump is the only president (and only federal officeholder) to be impeached twice. Richard Nixon resigned as a result of the Watergate Scandal in 1974, after the House Judiciary Committee passed articles of impeachment.
Article I, Section 2, Clause 5 of the United States Constitution provides:
The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.
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. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
Article II, Section 2 provides:
[The President] … shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
Article II, Section 4 provides:
The Constitution limits grounds of impeachment to “Treason, Bribery, or other high Crimes and Misdemeanors”, but does not itself define “high crimes and misdemeanors”.
Types of conduct
Congressional materials have cautioned that the grounds for impeachment “do not all fit neatly and logically into categories” because the remedy of impeachment is intended to “reach a broad variety of conduct by officers that is both serious and incompatible with the duties of the office”. Congress has identified three general types of conduct that constitute grounds for impeachment, although these categories should not be understood as exhaustive:
- improperly exceeding or abusing the powers of the office;
- behavior incompatible with the function and purpose of the office; and
- misusing the office for an improper purpose or for personal gain.
High crimes and misdemeanors
“High crimes and misdemeanors”, in the legal and common parlance of England in the 17th and 18th centuries, is corrupt activity by those who have special duties that are not shared with common persons. Toward the end of the 18th century, “High crimes and misdemeanors” acquired a more technical meaning. As Blackstone says in his Commentaries: The first and principal high misdemeanor…was mal-administration of such high offices as are in public trust and employment.
A common question regarding the impeachment process is what it takes to see a president face trial in the Senate. When there are leaders of the free world that appear to be involved with criminal activity, what actually qualifies them for impeachment?
Is the president guilty of:
c) high crimes and misdemeanors
d) a combination of the above
e) none of the above
The phrase “high crimes and misdemeanors” was a common phrase when the U.S. Constitution was written and did not require any stringent or difficult criteria for determining guilt, but meant the opposite. The crimes are called “high crimes” because they are carried out by a person in a position of public authority, or by misusing the position of public authority they have been given. It does not mean that the crimes themselves are unusual or “higher” types of crime. The phrase was historically used to cover a very broad range of crimes. In 1974 the Senate’s Judiciary Committee’s stated that “‘High Crimes and Misdemeanors’ has traditionally been considered a ‘term of art‘, like such other constitutional phrases as ‘levying war’ and ‘due process.’
Several commentators have suggested that Congress alone may decide for itself what constitutes a “high Crime or Misdemeanor”, especially since the Supreme Court decided in Nixon v. United States that it did not have the authority to determine whether the Senate properly “tried” a defendant. In 1970, then-House Minority Leader Gerald R. Ford defined the criterion as he saw it: “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”
… is an essential and appropriate auxiliary to the legislative function”, as “[a] legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change.” The Supreme Court held that it was irrelevant that the Senate’s authorizing resolution lacked an “avow[al] that legislative action was had in view” because, said the Court, “the subject to be investigated was … [p]lainly [a] subject … on which legislation could be had” and such legislation “would be materially aided by the information which the investigation was calculated to elicit.” Although “[a]n express avowal” of the Senate’s legislative objective “would have been better”, the Court admonished that “the presumption should be indulged that [legislation] was the real object.”
Two years later, in Sinclair v. United States, the Court considered investigation of private parties involved with officials under potential investigation for public corruption. In Sinclair, Harry F. Sinclair, the president of an oil company, appealed his conviction for refusing to answer a Senate committee’s questions regarding his company’s allegedly fraudulent lease on federal oil reserves at Teapot Dome in Wyoming. The Court, acknowledging individuals’ “right to be exempt from all unauthorized, arbitrary or unreasonable inquiries and disclosures in respect of their personal and private affairs”, nonetheless explained that because “[i]t was a matter of concern to the United States, … the transaction purporting to lease to [Sinclair’s company] the lands within the reserve cannot be said to be merely or principally … personal.” The Court also dismissed the suggestion that the Senate was impermissibly conducting a criminal investigation. “It may be conceded that Congress is without authority to compel disclosures for the purpose of aiding the prosecution of pending suits,” explained the Court, “but the authority of that body, directly or through its committees, to require pertinent disclosures in aid of its own constitutional power is not abridged because the information sought to be elicited may also be of use in such suits.”
The Supreme Court reached similar conclusions in a number of other cases. In Barenblatt v. United States, the Court permitted Congress to punish contempt, when a person refused to answer questions while testifying under subpoena by the House Committee on Un-American Activities. The Court explained that although “Congress may not constitutionally require an individual to disclose his … private affairs except in relation to … a valid legislative purpose”, such a purpose was present. Congress’s “wide power to legislate in the field of Communist activity … and to conduct appropriate investigations in aid thereof is hardly debatable,” said the Court, and “[s]o long as Congress acts in pursuance of its constitutional power, the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power.”
Presidents have often been the subjects of Congress’s legislative investigations. For example, in 1832, the House vested a select committee with subpoena power “to inquire whether an attempt was made by the late Secretary of War … [to] fraudulently [award] … a contract for supplying rations” to Native Americans and to “further … inquire whether the President … had any knowledge of such attempted fraud, and whether he disapproved or approved of the same.” In the 1990s, first the House and Senate Banking
Committees and then a Senate special committee investigated President and Mrs. Clinton’s involvement in the Whitewater land deal and related matters. The Senate had an enabling resolution; the House did not.
The Supreme Court has also explained that Congress has not only the power, but the duty, to investigate so it can inform the public of the operations of government:
It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct. The informing function of Congress should be preferred even to its legislative function.
House of Representatives: Impeachment
“House Manager” redirects here. For theater operations, see House management. See also: U.S. presidential impeachmentFirst day of the Judiciary Committee’s formal impeachment hearings against President Nixon, May 9, 1974.
Impeachment proceedings may be requested by a member of the House of Representatives on his or her own initiative, either by presenting a list of the charges under oath or by asking for referral to the appropriate committee. The impeachment process may be requested by non-members. For example, when the Judicial Conference of the United States suggests a federal judge be impeached, a charge of actions constituting grounds for impeachment may come from a special prosecutor, the President, or state or territorial legislature, grand jury, or by petition. An impeachment proceeding formally begins with a resolution adopted by the full House of Representatives, which typically includes a referral to a House committee.
The type of impeachment resolution determines the committee to which it is referred. A resolution impeaching a particular individual is typically referred to the House Committee on the Judiciary. A resolution to authorize an investigation regarding impeachable conduct is referred to the House Committee on Rules, and then to the Judiciary Committee. The House Committee on the Judiciary, by majority vote, will determine whether grounds for impeachment exist (this vote is not law and is not required, US Constitution and US law).
Articles of impeachment
Where the Committee finds grounds for impeachment, it will set forth specific allegations of misconduct in one or more articles of impeachment. The Impeachment Resolution, or Articles of Impeachment, are then reported to the full House with the committee’s recommendations.
The House debates the resolution and may at the conclusion consider the resolution as a whole or vote on each article of impeachment individually. A simple majority of those present and voting is required for each article for the resolution as a whole to pass. If the House votes to impeach, managers (typically referred to as “House managers”, with a “lead House manager”) are selected to present the case to the Senate. Recently, managers have been selected by resolution, while historically the House would occasionally elect the managers or pass a resolution allowing the appointment of managers at the discretion of the Speaker of the United States House of Representatives. These managers are roughly the equivalent of the prosecution or district attorney in a standard criminal trial. Also, the House will adopt a resolution in order to notify the Senate of its action. After receiving the notice, the Senate will adopt an order notifying the House that it is ready to receive the managers. The House managers then appear before the bar of the Senate and exhibit the articles of impeachment. After the reading of the charges, the managers return and make a verbal report to the House.
The proceedings unfold in the form of a trial, with the Senate having the right to call witnesses and each side having the right to perform cross-examinations. The House members, who are given the collective title of managers during the course of the trial, present the prosecution case, and the impeached official has the right to mount a defense with his or her own attorneys as well. Senators must also take an oath or affirmation that they will perform their duties honestly and with due diligence. After hearing the charges, the Senate usually deliberates in private. The Constitution requires a two-thirds supermajority to convict a person being impeached. The Senate enters judgment on its decision, whether that be to convict or acquit, and a copy of the judgment is filed with the Secretary of State. Upon conviction in the Senate, the official is automatically removed from office and may also be barred from holding future office. The trial is not an actual criminal proceeding and more closely resembles a civil service termination appeal in terms of the contemplated deprivation. Therefore, the removed official may still be liable to criminal prosecution under a subsequent criminal proceeding. The President may not grant a pardon in the impeachment case, but may in any resulting Federal criminal case (unless it is the President who is convicted and thus loses the pardon power). However, whether the President can pardon them self for criminal offenses is an open question, because it has never been reviewed by a court.
Beginning in the 1980s with Harry E. Claiborne, the Senate began using “Impeachment Trial Committees” pursuant to Senate Rule XI. These committees presided over the evidentiary phase of the trials, hearing the evidence and supervising the examination and cross-examination of witnesses. The committees would then compile the evidentiary record and present it to the Senate; all senators would then have the opportunity to review the evidence before the chamber voted to convict or acquit. The purpose of the committees was to streamline impeachment trials, which otherwise would have taken up a great deal of the chamber’s time. Defendants challenged the use of these committees, claiming them to be a violation of their fair trial rights as this did not meet the constitutional requirement for their cases to be “tried by the Senate”. Several impeached judges, including District Court Judge Walter Nixon, sought court intervention in their impeachment proceedings on these grounds. In Nixon v. United States (1993), the Supreme Court determined that the federal judiciary could not review such proceedings, as matters related to impeachment trials are political questions and could not be resolved in the courts.
In the case of impeachment of the president, the Chief Justice of the Supreme Court presides over the trial. The Constitution is silent about who would preside in the case of the impeachment of a Vice President. It is doubtful the Vice President would be permitted to preside over their own trial. As President of the Senate, the Vice President would preside over other impeachments. If the Vice President did not preside over an impeachment (of anyone besides the President), the duties would fall to the President pro tempore of the Senate.
To convict an accused, “the concurrence of two thirds of the [Senators] present” for at least one article is required. If there is no single charge commanding a “guilty” vote from two-thirds of the senators present, the defendant is acquitted and no punishment is imposed.
Removal and disqualification
Conviction immediately removes the defendant from office. Following the vote on conviction, the Senate may also vote to punish the individual by barring him or her from holding future federal office, elected or appointed. As the threshold for disqualification is not explicitly mentioned in the Constitution, the Senate has taken the position that disqualification votes only require a simple majority rather than a two-thirds supermajority. The Senate has used disqualification sparingly, as only three individuals have been disqualified from holding future office.
Conviction does not extend to further punishment, for example, loss of pension. After conviction by the Senate, “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law” in the regular federal or state courts. However, the Former Presidents Act of 1958, which provides a pension and other benefits, does not extend to presidents who were removed from office following an impeachment conviction. Because of an amendment to that law made in 2013, a former president who has been removed from office due to impeachment and conviction is still guaranteed lifetime Secret Service protection.
History of federal constitutional impeachment
In the United Kingdom, impeachment was a procedure whereby a member of the House of Commons could accuse someone of a crime. If the Commons voted for the impeachment, a trial would then be held in the House of Lords. Unlike a bill of attainder, a law declaring a person guilty of a crime, impeachments did not require royal assent, so they could be used to remove troublesome officers of the Crown even if the monarch was trying to protect them.
The monarch, however, was above the law and could not be impeached, or indeed judged guilty of any crime. When King Charles I was tried before the Rump Parliament of the New Model Army in 1649 he denied that they had any right to legally indict him, their king, whose power was given by God and the laws of the country, saying: “no earthly power can justly call me (who is your King) in question as a delinquent … no learned lawyer will affirm that an impeachment can lie against the King.” While the House of Commons pronounced him guilty and ordered his execution anyway, the jurisdictional issue tainted the proceedings.
With this example in mind, the delegates to the 1787 Constitutional Convention chose to include an impeachment procedure in Article II, Section 4 of the Constitution which could be applied to any government official; they explicitly mentioned the President to ensure there would be no ambiguity. Opinions differed, however, as to the reasons Congress should be able to initiate an impeachment. Initial drafts listed only treason and bribery, but George Mason favored impeachment for “maladministration” (incompetence). James Madison argued that impeachment should only be for criminal behavior, arguing that a maladministration standard would effectively mean that the President would serve at the pleasure of the Senate. Thus the delegates adopted a compromise version allowing impeachment by the House for “treason, bribery and other high crimes and misdemeanors” and conviction by the Senate only with the concurrence of two-thirds of the senators present.
Presidents who were impeached
Andrew Johnson (impeached Feb. 1868, acquitted May 1868)
The impeachment resolution against Andrew Johnson, adopted on February 24, 1868.
President Andrew Johnson held open disagreements with Congress, who tried to remove him several times. The Tenure of Office Act was enacted over Johnson’s veto to curb his power and he openly violated it in early 1868.
The House of Representatives adopted 11 articles of impeachment against Johnson. The articles charged Johnson with:
- Dismissing Secretary of War Edwin Stanton from office after the Senate had voted not to concur with his dismissal and had ordered him reinstated.
- Appointing Adjutant General Lorenzo Thomas as secretary of war ad interim despite the lack of vacancy in the office, since the dismissal of Stanton had been invalid.
- Appointing Thomas without the required advice and consent of the Senate.
- Conspiring, with Thomas and “other persons to the House of Representatives unknown,” to unlawfully prevent Stanton from continuing in office.
- Conspiring to unlawfully curtail faithful execution of the Tenure of Office Act.
- Conspiring to “seize, take, and possess the property of the United States in the Department of War.”
- Conspiring to “seize, take, and possess the property of the United States in the Department of War” with specific intent to violate the Tenure of Office Act.
- Issuing to Thomas the authority of the office of secretary of war with unlawful intent to “control the disbursements of the moneys appropriated for the military service and for the Department of War.”
- Issuing to Major General William H. Emory orders with unlawful intent to violate federal law requiring all military orders to be issued through the General of the Army.
- Making three speeches with intent to “attempt to bring into disgrace, ridicule, hatred, contempt and reproach, the Congress of the United States.”
- Unlawfully, and unconstitutionally, challenged the authority of the 39th Congress to legislate, because Southern states had not been readmitted to the Union.
Chief Justice Salmon P. Chase presided over Johnson’s Senate trial. Conviction failed by one vote in May 1868. The impeachment trial remained a unique event for 130 years.
Bill Clinton (impeached Dec. 1998, acquitted Feb. 1999)
Two articles of impeachment were approved by the House, charging President Bill Clinton with perjury and obstruction of justice. The charges stemmed from a sexual harassment lawsuit filed against Clinton by Arkansas state employee Paula Jones and from Clinton’s testimony denying that he had engaged in a sexual relationship with White House intern Monica Lewinsky. They were:
Article I, charging Clinton with perjury, alleged in part that:
On August 17, 1998, William Jefferson Clinton swore to tell the truth, the whole truth, and nothing but the truth before a federal grand jury of the United States. Contrary to that oath, William Jefferson Clinton willfully provided perjurious, false and misleading testimony to the grand jury concerning one or more of the following:
- the nature and details of his relationship with a subordinate government employee;
- prior perjurious, false and misleading testimony he gave in a federal civil rights action brought against him;
- prior false and misleading statements he allowed his attorney to make to a federal judge in that civil rights action; and
- his corrupt efforts to influence the testimony of witnesses and to impede the discovery of evidence in that civil rights action.
Article II, charging Clinton with obstruction of justice alleged in part that:
The means used to implement this course of conduct or scheme included one or more of the following acts:
- … corruptly encouraged a witness in a Federal civil rights action brought against him to execute a sworn affidavit in that proceeding that he knew to be perjurious, false and misleading.
- … corruptly encouraged a witness in a Federal civil rights action brought against him to give perjurious, false and misleading testimony if and when called to testify personally in that proceeding.
- … corruptly engaged in, encouraged, or supported a scheme to conceal evidence that had been subpoenaed in a Federal civil rights action brought against him.
- … intensified and succeeded in an effort to secure job assistance to a witness in a Federal civil rights action brought against him in order to corruptly prevent the truthful testimony of that witness in that proceeding at a time when the truthful testimony of that witness would have been harmful to him.
- … at his deposition in a Federal civil rights action brought against him, William Jefferson Clinton corruptly allowed his attorney to make false and misleading statements to a Federal judge characterizing an affidavit, in order to prevent questioning deemed relevant by the judge. Such false and misleading statements were subsequently acknowledged by his attorney in a communication to that judge.
- … related a false and misleading account of events relevant to a Federal civil rights action brought against him to a potential witness in that proceeding, in order to corruptly influence the testimony of that witness.
- … made false and misleading statements to potential witnesses in a Federal grand jury proceeding in order to corruptly influence the testimony of those witnesses. The false and misleading statements made by William Jefferson Clinton were repeated by the witnesses to the grand jury, causing the grand jury to receive false and misleading information.
Chief Justice William Rehnquist
Chief Justice William Rehnquist presided over Clinton’s Senate trial. As both articles of impeachment failed to receive the required super-majority, Clinton was acquitted and was not removed from office.
First impeachment (impeached Dec. 2019, acquitted Feb. 2020)
After a whistleblower accused President Donald Trump of pressuring a foreign government to interfere on Trump’s behalf in the 2020 election, the House initiated an impeachment inquiry. On December 10, 2019, the Judiciary Committee approved two articles of impeachment (H.Res. 755): abuse of power and obstruction of Congress. On December 18, 2019, the House voted to impeach Trump on two charges:
- Abuse of power by “pressuring Ukraine to investigate his political rivals ahead of the 2020 election while withholding a White House meeting and $400 million in U.S. security aid from Kiev.”
- Obstruction of Congress by directing defiance of subpoenas issued by the House and ordering officials to refuse to testify.
On January 31, 2020, the Senate voted 51–49 against calling witnesses or issuing subpoenas for any additional documents. On February 5, 2020, the Senate found Trump not guilty of abuse of power, by a vote of 48–52, with Republican senator Mitt Romney being the only senator—and the first senator in U.S. history—to cross party lines by voting to convict, not guilty of obstruction of Congress, by a vote of 47–53. Chief Justice John Roberts.
Chief Justice John Roberts presided over Trump’s trial. As both articles of impeachment failed to receive the required super-majority, Trump was acquitted and was not removed from office.
Second impeachment (impeached Jan. 2021)
Trump was impeached for a second time after he was accused of inciting a deadly insurrection against the United States by attempting to overturn the 2020 presidential election results after his loss to Joe Biden. On January 13, 2021, the House voted to impeach Trump for “Incitement of Insurrection”. The definition of inciting violence or a riot is the following.
The speech must include:
+Not be abstract
+Include instructions to act
+produce imminent lawless action
President subjected to an impeachment process who resigned before it ended
Richard Nixon (initiated Oct. 1973, resigned Aug. 1974)
Further information: Watergate scandal and Impeachment process of Richard Nixon. The Judiciary Committee’s impeachment hearings received intense press attention. Portions were broadcast live on television. Outgoing President Richard Nixon’s farewell speech to the White House staff, August 9, 1974
On October 30, 1973, Nixon ordered the firing of Special Prosecutor Archibald Cox, precipitating the Saturday Night Massacre. A massive reaction took place, especially in Congress, where 17 resolutions were introduced between November 1, 1973, and January 1974: H.Res. 625, H.Res. 635, H.Res. 643, H.Res. 648, H.Res. 649, H.Res. 650, H.Res. 652, H.Res. 661, H.Res. 666, H.Res. 686, H.Res. 692, H.Res. 703, H.Res. 513, H.Res. 631, H.Res. 638, and H.Res. 662. H.Res. 803, passed February 6, authorized a Judiciary Committee investigation, and in July, that committee approved three articles of impeachment. Before the House took action, the impeachment proceedings against Nixon were mooted when Nixon resigned on August 9, 1974. A report containing articles of impeachment was accepted by the full House on August 20, 1974, by a vote of 412–3.
While Nixon was never formally impeached, this is the only impeachment process to result in the president leaving office.
Presidents who, after a formal investigation, were not impeached
A number of attempts to remove President John Tyler from office failed. On January 10, 1843, Rep. John Minor Botts, of Virginia introduced a resolution that charged “John Tyler, Vice President acting as President” with nine counts of impeachable offenses, including corruption and official misconduct. The resolution was defeated, 83–127.
After Tyler vetoed a tariff bill in June 1842, the House of Representatives initiated the first impeachment proceedings against a president in American history. A committee headed by former president John Quincy Adams, then a congressman, condemned Tyler’s use of the veto and stated that Tyler should be impeached. (This was not only a matter of the Whigs supporting the bank and tariff legislation which Tyler vetoed. Until the presidency of the Whigs’ archenemy Andrew Jackson, presidents vetoed bills rarely, and then generally on constitutional rather than policy grounds, so Tyler’s actions also went against the Whigs’ concept of the presidency.) Adams then proposed a constitutional amendment to change the two-thirds requirement to override a veto to a simple majority, but neither house passed such a measure.
The House of Representatives set up the United States House Select Committee to Investigate Alleged Corruptions in Government, known as the Covode Committee after its chairman, Rep. John Covode (R-PA), to investigate President James Buchanan on suspicion of bribery and other allegations. After about a year of hearings, the committee concluded that Buchanan’s actions did not merit impeachment.
Ulysses S. Grant (Republican)
Near the end of Grant‘s second term as U.S. president in 1876, Democratic congressmen looking for political advantage against Republicans in the upcoming election threatened to impeach him after a turbulent year of administration scandals. The effort began during the impeachment trial for Grant’s Secretary of War, William W. Belknap, on charges of allegedly taking extortion money from a contractor in the Trader post scandal. Although no evidence bore on Grant directly, this and several political controversies had come into public view that year, including a Navy Department scandal that involved members of his wife’s family and the Whiskey Ring, which resulted in the indictment of Grant’s personal secretary, Orville E. Babcock. Grant removed Babcock from his administration after he was subsequently indicted in the Safe burglary conspiracy.
Hoping to further discredit the president, the Democrats’ impeachment attempt focused on the amount of time Grant had been absent from his presidential duties. Congressman Joseph Blackburn introduced the impeachment measure, but proceedings never began. Congress tabled the resolution after the November election.
Grover Cleveland (Democrat)
Representative Milford W Howard, of Alabama, on May 23, 1896, submitted a resolution (H.Res 374) impeaching President Grover Cleveland for selling unauthorized federal bonds and breaking the Pullman strike. It was not voted on or referred to a committee.
Harry S. Truman
On April 22, 1952, Rep. Noah M. Mason (R-IL) suggested that impeachment proceedings should be started against President Harry S. Truman for seizing the nation’s steel mills. Soon after Mason’s remarks, Rep. Robert Hale (R-ME) introduced a resolution (H.Res. 604). After three days of debate on the floor of the House, it was referred to the House Judiciary Committee where it died.
Further information: Iran–Contra affair
On March 5, 1987, Rep. Henry B. González (D-TX) introduced H.Res. 111, with six articles against President Ronald Reagan regarding the Iran-Contra affair to the House Judiciary Committee where no further action was taken. While no further action was taken on this particular bill, it led directly to the joint hearings of the subject that dominated the news later that year. After the hearings were over, USA Today reported that articles of impeachment were discussed but decided against.
Presidents against whom impeachment resolutions were introduced, but no action was taken
Many presidents have been subject to demands for impeachment by groups and individuals.
Ulysses S. Grant
Rep. Joseph Clay Stiles Blackburn (D-KY) introduced an impeachment resolution against President Ulysses S. Grant in 1876, regarding the number of days Grant had been absent from the White House. The resolution never gained momentum and was tabled in December 1876.
Rep. Milford W. Howard (D-AL), on May 23, 1896, submitted a resolution (H.Res 374) impeaching President Grover Cleveland for selling unauthorized federal bonds and breaking the Pullman Strike. It was neither voted on nor referred to a committee.
Herbert Hoover (Republican)
During the 1932–33 lame-duck session of Congress, Congressman Louis Thomas McFadden twice introduced impeachment resolutions against President Herbert Hoover. The resolutions were tabled by wide margins.
In 1932 and early 1933, Rep. Louis Thomas McFadden (R-PA) introduced two impeachment resolutions against President Herbert Hoover, over economic grievances. The resolutions were considered for several hours and were then tabled.
Harry S. Truman (Democrat)
In April 1951, President Harry S. Truman fired General of the Army Douglas MacArthur. Congressional Republicans responded with numerous calls for Truman’s removal. The Senate held hearings, and a year later, Congressmen George H. Bender and Paul W. Shafer separately introduced House bills 607 and 614 against President Truman. The resolutions were referred to the Judiciary Committee which, being run by Democrats, sat on them. However, the US Senate held extensive hearings on the matter.
On April 22, 1952, Representative Noah M. Mason, of Illinois, suggested that impeachment proceedings should be started against President Truman for seizing the nation’s steel mills. Soon after Mason’s remarks, Rep.Robert Hale of Maine, introduced a resolution (H.Res. 604). After three days of debate on the floor of the House, it was referred to the Judiciary where it died.
Lyndon B. Johnson
On May 3, 1968, a petition to impeach President Lyndon B. Johnson for “military and political duplicity” was referred to the House Judiciary Committee. No action was taken.
Ronald Reagan (Republican)
On March 6, 1987, Representative Henry B. Gonzalez introduced articles of impeachment against President Ronald Reagan regarding the Iran Contra affair, leading to the joint hearings that dominated the summer. A special prosecutor was appointed.
George H.W. Bush
President George H. W. Bush was subject to two resolutions over the Gulf War in 1991, both by Rep. Henry B. González (D-TX). H.Res. 34 was introduced on January 16, 1991, and was referred to the House Committee on Judiciary and then its Subcommittee on Economic and Commercial Law on March 18, 1992. H.Res. 86 on February 21, 1991, and referred to the House Judiciary Committee, where no further action was taken on it.
George W. Bush
Further information: Efforts to impeach George W. BushA protester calling for the impeachment of George W. Bush on June 16, 2005.
During the administration of President George W. Bush, several American politicians sought to either investigate him for possible impeachable offenses or to bring actual impeachment charges. The most significant of these occurred on June 10, 2008, when Rep. Dennis Kucinich (D-OH) and Rep. Robert Wexler (D-FL) introduced H.Res. 1258, containing 35 articles of impeachment against Bush. After nearly a day of debate, the House voted 251–166 to refer the impeachment resolution to the House Judiciary Committee on June 11, 2008, where no further action was taken on it.
Further information: Efforts to impeach Barack Obama
On December 3, 2013, the House Judiciary Committee held a hearing on President Barack Obama that was formally titled “The President’s Constitutional Duty to Faithfully Execute the Laws,” which political journalists viewed as an attempt to begin justifying impeachment proceedings. When asked by reporters if this was a hearing about impeachment, Rep. Lamar Smith (R-TX) claimed that it was not, saying “I didn’t mention impeachment nor did any of the witnesses in response to my questions at the Judiciary Committee hearing.” One witness did mention impeachment directly: Georgetown University law professor Nicholas Quinn Rosenkranz said “a check on executive lawlessness is impeachment” as he accused Obama of “claim[ing] the right of the king to essentially stand above the law.” Impeachment efforts never advanced past this, making Obama the first president in 28 years never to have articles of impeachment against him referred to the House Judiciary Committee during his tenure.
As the reader can see the impeachment process is not something to be taken lightly. To do it properly involves a substantial process. Pelosi has made the process a travesty. It was never meant to be a tool of politics. It was meant to remove a corrupt president, not somebody you happened to dislike, or did not agree with their beliefs or agenda. In my opinion Pelosi and Schumer should be impeached. That will never happen, because they are creatures of the D.C. swamp. Mitch McConnell will not hear the impeachment process until Biden is inaugurated, and you cannot impeach a private citizen, which is what Trump will be. Pelosi has not filed the papers with the Senate, so I don’t now if this technically counts as an impeachment or not. I believe it was a distraction technique by the left.
Also it can be argued that since insurrection is a capital crime, President Trump was impeached under the Bill of attainder, which is illegal under the Constitution. 18 U.S. Code § 2383 – Rebellion or insurrection. Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States. These are some very serious charges that he has been accused of. So the Democrats need to follow the rule of the law, which they are not doing.
Only time will tell what will happen. However, by the time this article is posted we will know and I will update it when I have the information.
en.wikipedia.org, “Impeachments of presidents of the United States,” By Wikipedia editors; en.wikipedia.org, ” Impeachment in the United States & Federal Impeachment,” By Wikipedia editors; en.wikipedia, “Impeachment investigations of United States federal officials,’ by Wikipedia editors; nytimes.com, “What Is the Impeachment Process? A Step-by-Step Guide,” By New York Times editor; constitutionus.com, “The Impeachment Process;” heritage.org, “Bill of Attainder,” By Daniel Troy; heritage.org, ” Ex post facto,” By Daniel Troy; constitutioncenter.org, “Andrew Jackson, presidential censure and the Constitution, ” By Abigail Perkiss; historynewsnetwork.org, “What It Means to Censure a President,” By Rick Shenkman;
The different stages of the impeachment process.
There are different stages to the judiciary process, from beginning a case for impeachment to the president being removed from office. So far, only three presidents have reached the final stage of the trial at the senate. None have ended the process with a guilty verdict.
The process is as follows:
1) Charges begin following evidence of one of the crimes mentioned above
2) An investigation by the House Judiciary Committee within the House of Representatives
3) A case is heard in the House and put to the vote
4) If successful, the case moves to the Senate
5) Here, a trial takes place, which results in a final verdict for impeachment or acquittal
It all begins with an investigation by the House Judiciary Committee.
First of all, six members of the house committees need to send their cases to the Judiciary Committee, with strong evidence in favor of conviction. It could take a while for this process to play out, as this involves a long investigation process to create the best possible case. Representatives can’t just put forward a case on a whim. There must be enough evidence and backing for the case to move forward through the process.
An interesting factor in all of this is Jefferson’s Manual. This includes rules that create a clear process for members to follow. An impeachment case can only begin when there are specific charges made on the floor of the House. This could be via a member’s resolution, a message from the president, a referral to the committee, or other key facts in an investigation. Any member with such a proposition to impeach is awarded high privilege in the House and jumps the queue over any other business of the day.
At this point, the Judiciary Committee needs to decide if there is enough of a case to move forward. If the case is too weak, the process is over, and the President remains in office without facing any trial. However, if the committee decides that there is sufficient evidence to present the case to the house, the case moves forward.
This is when the motion goes before its first vote.
Once the impeachment process reaches the house, the representatives must hold a floor vote on each of the articles presented. This is where it is so important for those initial committees to make a strong case. If they can present multiple articles of impeachment, which means multiple grounds for removal based on different accounts of high crimes, there is a greater chance of success.
From there, it all comes down to a majority vote. If most House members decide that there is evidence enough to impeach the President, the process moves forward.
Failure to achieve that majority means the end of the process, and the President remains in office.
So, what happens if there is a majority vote?
At this stage, the impeachment process will have passed the House of Representatives and then moves into the Senate. This is where the impeachment trial takes place. Those involved in the case have to give evidence either in support of or against the president to determine their guilt related to the original charges. The trial then ends with another vote between the members of the Senate.
Again, it all comes down to majorities. Two thirds or more of Senate members have to vote in favor of impeachment for the president to be removed from office. This means that half the Senate could be utterly convinced of the president’s guilt, but the democratic process means that they would remain in power.
Naturally, there are pros and cons to this majority approach. It is important to have a strong majority either for or against to show that there is limited doubt over the President’s next step. A guilty president shouldn’t remain in place just because one or two representatives voted in his favor. At the same time, innocent presidents shouldn’t have their reputation destroyed because of two representatives who wish to discredit him.
The impeachment process is political, not criminal.
It is important to remember that this is all a political process rather than a criminal one, which is why the Senate and Whitehouse can get away with so much that wouldn’t get past a court of law. This can get frustrating for citizens and all those on the outside that expect a clean, professional process with no signs of political bias and a clear conviction at the end.
Ideally, this whole process should be neutral, democratic, and free from any political influence. This isn’t the case for several reasons. We have to consider the following:
1) the purpose of the impeachment trial isn’t to decide on a criminal conviction
2) the process of the trial doesn’t follow traditional rules of a court of law
3) the process of the trial doesn’t follow standardized rules at all
4) the political power within the House and Senate can play a big role in outcomes.
The purpose of the impeachment trial is to gain a political outcome.
This distinction between a political and criminal trial is important when we consider the potential penalties. The Constitution states that the only penalties permitted are removing the accused from office and the disqualification from holding any federal office in the future. That is all. The impact of the result only has a bearing on the defendant’s political career. A defendant can’t face any risk of life, liberty, or property in this situation.
So far, we have seen what the constitution doesn’t say about the impeachment process. However, there are mentions of impeachment that have some bearing on cases today. Article II, Section 2, states that future presidents cannot pardon any past president found guilty in an impeachment trial.
Therefore, were Trump to be impeached and removed from office, he wouldn’t have then found himself in jail or at risk of losing any of his wealth or property. That is, of course, aside from his temporary residency in the Whitehouse. Instead, he would have lost his position, been banned from seeking federal office again, and then referred onto criminal charges where applicable.
The process of the trial doesn’t follow the traditional rules of a court of law.
Another area of inconsistency in this process is the Senate trial. At this point, it is decided if there is enough evidence against the current President to convict them of a high crime and remove them from office. Therefore, you would expect to see a professional, neutral courtroom trial with a strong prosecution and defense case and a neutral jury.
The reality here is that while there are prosecution and defense, with a chance to give evidence, make statements and present a case, the set-up is much different. There is also the fact that the jury that goes away to debate the findings are the Senate members themselves. The majority of which we know are currently Republican.
The process of the trial doesn’t follow standardized rules at all.
Furthermore, the rules for a Senate trial are created via a resolution for that specific situation. This essentially means that the Senate can adapt the process and make demands based on specific circumstances. There is no regulation and no clear attempt to follow any precedent. In some ways, this could make sense as impeachment trials are so rare and have to work within the case and the defendant’s parameters. It wouldn’t be right to use the same procedure from the 1868 Andrew Jackson impeachment process in the 1998 Bill Clinton process.
However, there was the sense that the Senate made things up as they went along with the Clinton case, potentially abusing their own power in the process. Perhaps we could have expected some regulation here, which might have followed on into the Trump case, but apparently not.
A lot of the issue with a lack of standardization and regulation stems from the Constitution. As was mentioned above, there is a lot of focus on an 18th-century document’s vague words open to interpretation. As there is little to no standardization for the process of impeachment in the Constitution, it is difficult to make a case that any modern-day process is unconstitutional.
Both the House and Senate have a majority rule: one to the left and one to the right.
Finally, we have to remember that both the House of Representatives and the Senate are led by members holding political affiliations with either leading party. This is called having control of the Senate or the House. This control could be highly influential in the results of impeachment trials.
Are representatives more likely to vote against a president they disagree with and want to see out of office? Or, will they leave politics aside and focus purely on the evidence presented to them? This level of control and political power is why it is so important for presidents to have supportive houses beneath them to pass laws and make all the “right” decisions. It is much harder to fight a Democratic house when you are a Republican president and visa-versa.
At the time of the Trump Impeachment case, the House of Representatives was Democrat-controlled and the Senate Republican-controlled. Would the case have passed through a Republican House of Representatives?
This lack of clear rules and regulations brings us back to an important point about Republican control of the Senate and bipartisan politics in these organizations.
There is nothing in the constitution to force the Senate leader to start an impeachment trial, even if the process passes the House of Representatives. Therefore, the Republican majority leader, Mitch McConnell, could have refused to hold the trial and thrown out the impeachment case. This notion wasn’t that extreme considering the fact that McConnell also refused a confirmation hearing for a Democrat Supreme Court vacancy in 2016.
The term high crimes and misdemeanors don’t make a lot of sense in modern society. The term actually comes from the English legal system of the 17th century, made its way into the constitution, and has stuck around.
How does the impeachment process work in practice?
Cynics would argue that the impeachment process doesn’t work in any clear defined manner. The alternate rules for each trial, interpretations of the constitution, and the right to refuse a trial are problematic.
At its core, there is a structure and process here that allows for an evidence-led case and a proper trial. The fact that no case has achieved the two-thirds majority yet is telling. But, it is also comforting to know that the House of Representatives has this process available to hold presidents to justice for any “high crimes” that may occur.
Bill of Attainder
ARTICLE I, SECTION 9, CLAUSE 3
No Bill of Attainder…shall be passed.
The Constitution prohibits both the federal government (in this clause) and the states (in Article I, Section 10, Clause 1) from passing either bills of attainder or ex post facto laws. The Framers considered freedom from bills of attainder and ex post facto laws so important that these are the only two individual liberties that the original Constitution protects from both federal and state intrusion. In Philadelphia, the Constitutional Convention approved both provisions without debate. As James Madison said in The Federalist No. 44, “Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts are contrary to the first principles of the social com-pact and to every principle of sound legislation.”
In common law, bills of attainder were legislative acts that, without trial, condemned specifically designated persons or groups to death. Bills of attainder also required the “corruption of blood”; that is, they denied to the condemned’s heirs the right to inherit his estate. Bills of pains and penalties, in contrast, singled out designated persons or groups for punishment less than death, such as banishment or disenfranchisement. Many states had enacted both kinds of statutes after the Revolution.
The Framers forbade bills of attainder as part of their strategy of undoing the English law of treason, and to contend with what they regarded as the most serious historical instances of legislative tyranny by state or national legislatures. Raoul Berger argues that the bill of attainder clauses protect only against legislative actions that affect the life of the individual, not his property, which was the province of bills of pains and penalties. Beginning with Chief Justice John Mar-shall, however, the Supreme Court has insisted that “a Bill of Attainder may affect the life of an individual, or may confiscate his property, or may do both,” Fletcher v. Peck (1810), and that “[t]he term ‘bill of attainder’ in the National Constitution is generical, and embraces bills of both classes,” Drehman v. Stifle (1869).
Marshall and his successors saw the Bill of Attainder Clause as an element of the separation of powers. As the decisions of the Court in Mar-bury v. Madison (1803) and United States v. Klein (1871) made clear, only a court can hold a trial, evaluate the evidence, and determine the merits of the claim or accusation. The Constitution for-bade Congress from “exercis[ing] the power and office of judge.” Cummings v. Missouri (1867). In United States v. Brown (1965), the Court specifically rejected a “narrow historical approach” to the clauses and characterized the Framers’ purpose as to prohibit “legislative punishment, of any form or severity, of specifically designated persons or groups.” In Ex parte Garland (1867), for example, the Supreme Court struck down under the Attainder Clause a congressional statute directed against former Confederates that barred persons from practicing law before United States courts who had, among other things, merely given “encouragement” to rebels.
Bills of attainder can also operate conditionally, that is, the punishment may not only be for past acts, but it also may be triggered whenever the person engages in any future prohibited acts. Test oaths can be a type of attainder, and exclusion from employment can be a form of punishment. A Missouri test oath required one to affirm, among other things, that one had never indicated “disaffection to the government of the United States in its contest with the Rebellion.” Those who failed to take the oath were prohibited from practicing the otherwise lawful occupation of clergyman. The Court found to oath to be a bill of attainder. Cummings v. Missouri (1867). In other instances, however, the Court has found a test oath “merely provides standards of qualification and eligibility for employment.” Garner v. Board of Public Works of City of Los Angeles (1951).
After World War II, the Supreme Court dealt with laws limiting the activities of members of the Communist Party. The Court struck as violative of the Bill of Attainder Clause an appropriation act that barred payment of salaries to certain named individuals who were thought to be subversive. United States v. Lovett (1946). In Communist Party of the United States v. Subversive Activities Control Board (1961), a dividedCourt upheld the application of the Subversive Activities Control Act of 1950, which required the Communist Party and its officers to register with the Attorney General. The Court stated that the law did not restrict a class of individuals. Rather, it only regulated “designated activities.” But in United States v. Brown, the Court invalidated a law that prohibited Communist Party members from serving as leaders of labor organizations.
Nonetheless, even with an expansive definition, the Bill of Attainder Clause provides only limited protection against retroactive civil legislation. The modern Court rarely invokes the clause’s protection; it has not invalidated legislation on bill-of-attainder grounds since Brown in 1965. Moreover, the only laws that the Court has invalidated as bills of attainder have been bars on the employment of specific individuals or groups of individuals.
The Court has devised a three-part test to determine when a piece of legislation violates the Bill of Attainder Clause: (1) such legislation specifies the affected persons (even if not done in terms within the statute), (2) includes punishment, and (3) lacks a judicial trial. Because of the Court’s relatively narrow definition of punishment, however, it rarely, if ever, invalidates legislation on this basis. For example, the Court has held that the denial of noncontractual government benefits such as financial aid was not punishment, Selective Service System v. Minnesota Public Interest Research Group (1984), nor did enact requisitioning the recordings and material of President Richard M. Nixon and several of his aides constitute punishment. Nixon v. Administrator of General Services (1977).
Ex Post Facto
ARTICLE I, SECTION 9, CLAUSE 3
No…ex post facto Law shall be passed.
As generally understood, a law that is ex post facto—literally, after the fact—is one that criminally punishes conduct that was lawful when it was done. It is an aspect of the fundamental maxim, nulla poena sine lege: there can be no punishment without law—in this case, without preexisting law. Despite the fact that the prohibition against such laws had worked its way into English law (as celebrated by Sir William Blackstone), Parliament had, nonetheless, claimed the right to enact ex post facto laws in the form of bills of attainder against unpopular groups and persons. In addition, prior to the Constitutional Convention, some states themselves had passed ex post facto laws. (The prohibition of ex post facto state laws is found in Article I, Section 10, Clause 1.)
Nevertheless, opposition to ex post facto laws was a bedrock principle among the Framers. In The Federalist No. 78, Alexander Hamilton noted that “the subjecting of men to punishment for things which, when they were done, were breaches of no law” is among “the favorite and most formidable instruments of tyranny.” Thomas Jefferson noted in an 1813 letter to Isaac McPherson “the sentiment that ex post facto laws are against natural right.”
In Philadelphia, the Framers debated the issue vigorously. Some thought an explicit ban on ex post facto laws an absolute necessity. Others, such as Oliver Ellsworth of Connecticut, echoed the natural law tradition and “contended that there was no lawyer, no civilian who would not say that ex post facto laws were void of themselves. It cannot then be necessary to prohibit them.” James Wilson declared that the prohibition against ex post facto laws in the state constitutions had been ineffective and would be likewise “useless” in the national constitution. Hugh Williamson then pointed to North Carolina’s prohibition of ex post facto laws. He acknowledged that the prohibition had been violated, but argued that “it has done good there & may do good here, because the Judges can take hold of it.” The delegates then approved the clause, seven states to three.
Later, James Dickinson reported that, on examining Blackstone’s Commentaries on the Laws of England, he found that “the terms ‘ex post facto’ related to criminal cases only; that they would not consequently restrain the states from retrospective laws in civil cases and that some further provision for this purpose would be requisite.” After the Committee of Style had reported the ex post facto law clauses in their current form, George Mason of Virginia moved to strike the prohibition against ex post facto laws because the clause might apply to civil laws “and no Legislature ever did or can altogether avoid them in Civil cases.” Elbridge Gerry seconded the motion because he wanted a clearer statement that prohibition did in fact apply to “Civil cases.” Mason’s motion was unanimously rejected.
The Court addressed the issue of the scope of the clause in one of its earliest constitutional decisions. Calder v. Bull, decided in 1798, involved a determination by the Connecticut legislature that a judicial decree should be set aside and a new trial held regarding a contested will. Without dissent, the Court held that the Connecticut legislature’s action was not an ex post facto law forbidden under Article I, Section 10. Justice Samuel Chase defined ex post facto laws as:
1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offence, in order to convict the offender. All these, and similar laws, are manifestly unjust and oppressive.
Chase also made the point that, had the ex post facto law clauses barred all retroactive civil laws, the prohibition on the impairment of contracts by states (Article I, Section 10, Clause 1) and on uncompensated takings by the federal government (the Fifth Amendment’s Takings Clause) would have been unnecessary.
Although some believe that the question of the scope of the Ex Post Facto Clause had not been squarely presented in Calder v. Bull, the Supreme Court adopted and upheld Justice Chase’s position in Carpenter v. Pennsylvania (1855). Since that time, a few commentators and two Justices, William Johnson in Satterlee v. Matthewson (1829) and Clarence Thomas in Eastern Enterprises v. Apfel (1998), have voiced doubt over the accepted rule that the Ex Post Facto Clause applies only to criminal legislation. In Apfel, citing Justice Joseph Story, Thomas contended that the Ex Post Facto Clause, even more clearly than the Takings Clause, reflects the principle that retrospective laws are “generally unjust.” He continued:
Since Calder v. Bull,…this Court has considered the Ex Post Facto Clause to apply only in the criminal context. I have never been convinced of the soundness of this limitation, which in Calder was principally justified because a contrary interpretation would render the Takings Clause unnecessary….In an appropriate case, therefore, I would be willing to reconsider Calder and its progeny to determine whether a retroactive civil law that passes muster under our current Takings Clause jurisprudence is nonetheless unconstitutional under the Ex Post Facto Clause.
The weight of precedent and scholarly opinion, however, supports Justice Chase’s view.
While the Supreme Court has hewn to the position that the Ex Post Facto Clause prohibits criminal penalties only, it has also applied the clause in civil cases where criminal penalties are disguised as civil disabilities. As the Court has said, “it is the effect, not the form, of the law that determines whether it is ex post facto.” Weaver v. Graham (1980).
When undertaking this inquiry, courts assess whether the ostensibly civil fine or penalty is penal in nature. As Justice Felix Frankfurter articulated the inquiry:
The mark of an ex post facto law is the imposition of what can fairly be designated punishment for past acts. The question in each case where unpleasant consequences are brought to bear upon an individual for prior conduct, is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation, such as the proper qualifications for a profession. De Veau v. Braisted (1960).
The issue of what constitutes “punishment” involves other clauses of the Constitution as well. For example, recent interpretations of the Double Jeopardy Clause of the Fifth Amendment may have implications for the Ex Post Facto Clause. In United States v. Halper (1989), the Supreme Court said that if “civil proceedings…advance punitive as well as remedial goals,” they do not constitute punishment that is prohibited under the Double Jeopardy Clause. In United States v. Ursery (1996), the Court found that confiscating the home of an individual convicted for growing marijuana was a “civil remedial sanction” rather than a civil penalty. On the other hand, the Court has found that an imposed forfeiture constitutes a punitive sanction under the Eighth Amendment’s excessive fines clause. United States v. Bajakajian (1998).
Most recently, in Smith v. Doe (2003), the Court (by a 6–3 decision) rejected the claim that Alaska’s sex offender registration and notification law constituted retroactive punishment forbidden by the Ex Post Facto Clause (of the analogue Article I, Section 10, Clause 1). The Court focused on the legislature’s “intention” and applied the following analytical framework:
If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate [the State’s] intention to deem it civil. Because we ordinarily defer to the legislature’s stated intent, only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.
A possible problem with the Court’s current interpretation of the Ex Post Facto Clause is the fact that many criminal laws could be rephrased as civil. As currently understood, the Ex Post Facto Clause thus guards against only the most severe use of the legislature’s power to make laws retroactive. They do so effectively where personal liberty is at issue. But the clause is of little use to those who are aggrieved by most forms of retroactive civil legislation, which frequently affect property rights of one form or another.
The clause applies only to criminal statutes, not judicial decisions having a retroactive effect. Retroactive judicial decisions, however, can be challenged under the Due Process Clause. See Rogers v. Tennessee (2001). Retroactive procedural statutes that work to deny a defense, bar the practice of law, increase punishment, or increase the likelihood of conviction may violate the Ex Post Facto Clause. See Cummings v. Missouri (1867); Ex parte Garland (1867); Carmell v. Texas (2000). In Stogner v. California (2003), the Court struck down a California law that revived prosecutions for sexual abuse of children after the statute of limitations had expired.
A statutory increase in punishment is also an impermissible ex post facto law. Collins v. Youngblood (1990). The clause prohibits, for example, applying new sentencing guidelines to a defendant who committed the crime prior to their promulgation, Miller v. Florida (1987); or canceling early-release credits after they have been awarded, Lynce v. Mathis (1997); but not a retroactive decrease in the availability of parole hearings, California Department of Corrections v. Morales (1995); nor a change in the place of trial, Cook v. United States (1891); nor deportation, Mahler v. Eby (1924). The Court found no increase in punishment in a change of method of execution from hanging to electrocution, Malloy v. South Carolina (1915); or in imposing civil commitment on a sexual predator after sentence, Kansas v. Hendricks (1997).
Andrew Jackson, presidential censure and the Constitution
On March 28, 1834, the U.S. Senate censured President Andrew Jackson in a tug-of-war that had questionable constitutional roots but important political overtones.
Congressional censure motions against a sitting President have always been controversial. In addition to Jackson, John Tyler and James Polk faced censure resolutions. Abraham Lincoln faced a censure problem during the Civil War, which was ironic, since Representative Lincoln led the censure movement against President Polk.
In modern years, censure motions were introduced against Richard Nixon and Bill Clinton, but not pursued.
Censure motions are subject to votes in either the House of Representatives or the Senate, and their sharply worded language is essentially a public shaming of government officials.
The most-famous censure motion in congressional history happened in 1954, when the Senate passed a censure motion against Joseph McCarthy, who was a key figure in the post-World War II Communist Red Scare era.
The motion said that McCarthy “acted contrary to senatorial ethics and tended to bring the Senate into dishonor and disrepute, to obstruct the constitutional processes of the Senate, and to impair its dignity; and such conduct is hereby condemned.”
The effective punishment came against McCarthy in a separate motion, where he lost a key committee chairmanship.
The constitutional precedent for the censure motion comes from Article 1, Section 5, Clause 2, which says that “each House may determine the Rules of its Proceedings, punish its Members for disorderly behavior, and, with the Concurrence of two thirds, expel a Member.”
However, there is nothing in the Constitution about Congress having the ability to pass a censure motion against a member of another branch of the government. And the word “censure” doesn’t appear in the Constitution.
These facts weren’t lost on President Andrew Jackson in 1834 when he faced the first-ever censure motion against a sitting President. Jackson was locked in a fierce battle against Henry Clay and the Whigs over the Second Bank of the United States.
In 1832, Jackson vetoed a congressional move to re-charter the bank; the Whig-controlled Senate and Clay asked Jackson to supply notes from his Cabinet meeting about the veto decision and Jackson refused to supply the documents. Clay then led the censure motion, which passed by a 26-20 vote.
“Resolved, That the President, in the late Executive proceedings in relation to the public revenue, has assumed upon himself authority and power not conferred by the Constitution and laws, but in derogation of both,” the motion read.
Jackson’s response was quite longer.
“I thus find myself charged on the records of the Senate, and in a form hitherto unknown in our history, with the high crime of violating the laws and Constitution of my country,” he wrote in a letter to the Senate.
“The resolution of the Senate is wholly unauthorized by the Constitution, and in derogation of its entire spirit. It assumes that a single branch of the legislative department may for the purposes of a public censure, and without any view to legislation or impeachment, take up, consider, and decide upon the official acts of the Executive. But in no part of the Constitution is the President subjected to any such responsibility, and in no part of that instrument is any such power conferred on either branch of the Legislature,” Jackson added.
Jackson remained angry about censure resolution for years and his supporters had the motion expunged from the Senate records in 1837 when the Democrats controlled the chamber.
“The Senate is no longer a place for any decent man,” Clay said after the censure motion was expunged.
What It Means to Censure a President
This article was first published in the 1990s after the GOP began floating the idea of censuring President Bill Clinton. It is relevant once again. In response to Charlottesville the House Democratic leader, Nancy Pelosi, is now calling for Trump’s censure.
Like a nation stuck in a “Groundhog Day” time warp, Americans keep reliving the Clinton mess over and over again, each time with a different outcome. Ten months ago the scandal was supposed to end with the president’s resignation. This summer he was going to be censured. On the eve of the November elections Republicans were predicting he’d be impeached. Now we are back to censure again. Ugh!
While some Republicans are grumbling that they’d rather see the president get off scot-free than be censured, which they regard as impeachment-lite, most Americans seem to approve of the idea, and with good reason. Censure is the Goldilock’s solution for people who can’t stomach impeachment: not too hot, not too cold.
But is it just right? Or is it so weak a version of impeachment that in the end it won’t mean much?
Part of the problem is that nobody knows exactly what censure is. The Constitution devotes several clauses to the impeachment and trial of presidents. There is not one word about censure. During the debates over the Constitution the framers never even gave it a nod. Like the character in “Alice in Wonderland,” we can say it means what we say it means.
But censure has not simply been dreamed up out of thin air. In the nineteenth century Congress censured three presidents (Andrew Jackson, John Tyler, and James Buchanan), and considered censuring a fourth (John Adams).
The great significance of this history may very well be the fact that almost nobody remembers it. If you want to make history, impeach a president. Censures don’t seem to mean much.
Two of the four presidents who faced censure, Adams and Jackson, are regarded today as among the greatest figures in our history. The other two, Tyler and Buchanan, are now forgotten, their censures having left no more mark on the national consciousness than their largely failed presidencies.
Jackson’s censure is the only one with which even most historians are familiar. In 1834 he was censured by the Whig-dominated Senate for illegally removing federal deposits from the Bank of the United States. And the only reason Jackson’s left an impression on historians is because it was subsequently expunged. In a delightfully dramatic moment, the secretary of the Senate drew a bold black box around the original entry, writing across it: “Expunged by order of the Senate, this 16th day of January, in the year of our Lord 1837.” Members of the opposition then promptly walked out in protest.
Buchanan’s censure isn’t even noted by his foremost biographer in a book that runs over five hundred pages long. I only stumbled upon it one day when doing research in the president’s official papers.
All four censures, however, have more in common than that they simply have been largely forgotten. All were the work of highly partisan politicians eager to score political points. Buchanan’s was typical.
Buchanan, a Democrat, had long been under attack by the Republicans, who accused him of softness on the South, moral cowardice, and corruption. But not until the off-year elections of 1858, which Republicans swept, did they finally go after him. The resolution officially accused him of conniving with the secretary of the navy to award a contract to a Philadelphia shipbuilder in hopes of swinging the congressional district to the Democrats, “an example dangerous to the public safety and deserving the reproof of this House.”
Why censure and not impeachment? Like the Republicans today, Republicans then didn’t have the votes in the Senate to convict.
Buchanan protested what he called this “vote of censure.” The House promptly decided not to accept his protest. And that ended the matter.
Why did none of these censures amount to much? The main reason would seem to be that they were the work of highly agitated partisan majorities – and the American people recognized this. What each presidents’ critics hoped would be a devastating historic blow instead was regarded as a cheap partisan shot.
The lesson that can be drawn from all this is that censures must be bipartisan to carry weight with the American people. History suggests that a resolution passed along party lines would be a source of palpable political divisiveness.
Addendum 8-19-17 The Democrats opposed to Trump may not care whether a censure of President Trump is remembered by history or not. What they clearly hope to do is orchestrate a vote in Congress on a resolution that forces Republicans to say whether they approve or disapprove of Trump. Such a resolution would be a loser for the GOP. A vote in favor of a resolution of censure would alienate Trumpeters. A vote against such a resolution would alienate moderates. Either case is a win for Democrats. A resolution of censure would divide Republicans.
There is, however, a downside for Democrats. A resolution of censure could take so much energy that the Democrats have nothing left over for the fight that counts: a vote to impeach and convict Trump.
Governmental and Political Posts Both National and International