Constitution of the United States/Art. I/Sec. 3/Clause 7 Impeachment Judgments

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Constitutional Law Treatise
Table of Contents
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Constitutional Law Outline
The Preamble
Article I Legislative Branch
Art. I, Section 1 Legislative Vesting Clause
Art. I, Section 2 House of Representatives
Art. I, Section 3 Senate
Art. I, Section 4 Congress
Art. I, Section 5 Proceedings
Art. I, Section 6 Rights and Disabilities
Art. I, Section 7 Legislation
Art. I, Section 8 Enumerated Powers
Art. I, Section 9 Powers Denied Congress
Art. I, Section 10 Powers Denied States
Article II Executive Branch
Art. II, Section 1 Function and Selection
Art. II, Section 2 Powers
Art. II, Section 3 Duties
Art. II, Section 4 Impeachment
Article III Judicial Branch
Art. III, Section 1 Vesting Clause
Art. III, Section 2 Justiciability
Art. III, Section 3 Treason
Article IV Relationships Between the States
Art. IV, Section 1 Full Faith and Credit Clause
Art. IV, Section 2 Interstate Comity
Art. IV, Section 3 New States and Federal Property
Art. IV, Section 4 Republican Form of Government
Article V Amending the Constitution
Article VI Supreme Law
Article VII Ratification
First Amendment: Fundamental Freedoms
Establishment Clause
Free Exercise Clause
Free Speech Clause
Freedom of Association
Second Amendment: Right to Bear Arms
Third Amendment: Quartering Soldiers
Fourth Amendment: Searches and Seizures
Fifth Amendment: Rights of Persons
Sixth Amendment: Rights in Criminal Prosecutions
Seventh Amendment: Civil Trial Rights
Eighth Amendment: Cruel and Unusual Punishment
Ninth Amendment: Unenumerated Rights
Tenth Amendment: Rights Reserved to the States and the People
Eleventh Amendment: Suits Against States
Twelfth Amendment: Election of President
Thirteenth Amendment: Abolition of Slavery
Thirteenth Amend., Section 1 Prohibition on Slavery and Involuntary Servitude
Thirteenth Amend., Section 2 Enforcement
Fourteenth Amendment: Equal Protection and Other Rights
Fourteenth Amend., Section 1 Rights
Fourteenth Amend., Section 2 Apportionment of Representation
Fourteenth Amend., Section 3 Disqualification from Holding Office
Fourteenth Amend., Section 4 Public Debt
Fourteenth Amend., Section 5 Enforcement
Fifteenth Amendment: Right of Citizens to Vote
Fifteenth Amend., Section 1 Right to Vote
Fifteenth Amend., Section 2 Enforcement
Sixteenth Amendment: Income Tax
Seventeenth Amendment: Popular Election of Senators
Eighteenth Amendment: Prohibition of Liquor
Eighteenth Amend., Section 1 Prohibition
Eighteenth Amend., Section 2 Enforcement of Prohibition
Eighteenth Amend., Section 3 Ratification Deadline
Nineteenth Amendment: Women's Suffrage
Twentieth Amendment: Presidential Term and Succession
Twentieth Amend., Section 1 Terms
Twentieth Amend., Section 2 Meetings of Congress
Twentieth Amend., Section 3 Succession
Twentieth Amend., Section 4 Congress and Presidential Succession
Twentieth Amend., Section 5 Effective Date
Twentieth Amend., Section 6 Ratification
Twenty-First Amendment: Repeal of Prohibition
Twenty-First Amend., Section 1 Repeal of Eighteenth Amendment
Twenty-First Amend., Section 2 Importation, Transportation, and Sale of Liquor
Twenty-First Amend., Section 3 Ratification Deadline
Twenty-Second Amendment: Presidential Term Limits
Twenty-Second Amend., Section 1 Limit
Twenty-Second Amend., Section 2 Ratification Deadline
Twenty-Third Amendment: District of Columbia Electors
Twenty-Third Amend., Section 1 Electors
Twenty-Third Amend., Section 2 Enforcement
Twenty-Fourth Amendment: Abolition of Poll Tax
Twenty-Fourth Amend., Section 1 Poll Tax
Twenty-Fourth Amend., Section 2 Enforcement
Twenty-Fifth Amendment: Presidential Vacancy
Twenty-Fifth Amend., Section 1 Presidential Vacancy
Twenty-Fifth Amend., Section 2 Vice President Vacancy
Twenty-Fifth Amend., Section 3 Declaration by President
Twenty-Fifth Amend., Section 4 Declaration by Vice President and Others
Twenty-Sixth Amendment: Reduction of Voting Age
Twenty-Sixth Amend., Section 1 Eighteen Years of Age
Twenty-Sixth Amend., Section 2 Enforcement
Twenty-Seventh Amendment: Congressional Compensation

Article I Legislative Branch

Section 3 Senate

Clause 7 Impeachment Judgments

Clause Text
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.

Overview of Impeachment Judgments[edit | edit source]

The immediate effect of conviction upon an article of impeachment is removal from office,[1] although the Senate may subsequently vote on whether the official shall be disqualified from again holding an office of public trust under the United States.[2] If this latter option is pursued, a simple majority vote by the Senate is required.[3] If not, an individual who has been impeached and removed may remain eligible to serve in an office in the future, including as a Member of Congress.[4]

By design,[5] impeachment is separate and distinct from a criminal proceeding. Impeachment and conviction by Congress operates to remove an individual from office; it does not, however, preclude criminal consequences for an individual's actions.[6] Those who have been impeached and removed from office are still subject to criminal prosecutions for the same underlying factual matters, and individuals who have already been convicted of crimes may be impeached for the same underlying behavior later.[7] A number of federal judges, in fact, have been indicted and convicted for conduct which has formed the basis for a subsequent impeachment proceeding.[8]

The text of the Constitution does not address the sequencing of impeachment and other legal proceedings. Generally speaking, historical practice has been to impeach individuals after the conclusion of any related criminal proceedings, although this might simply reflect practical convenience as such proceedings can alert Congress of improper behavior that may warrant impeachment. Nonetheless, nothing in the Constitution demands this order of events.

The Constitution bars the President from using the pardon power to shield individuals from impeachment or removal from office.[9] A President could pardon impeached officials suspected of criminal behavior, thus protecting them from federal criminal prosecution; such a move would not, however, shield those officials from removal from office via the impeachment process.

Doctrine on Impeachment Judgments[edit | edit source]

While the Constitution authorizes the Senate,[10] following an individual's conviction in an impeachment trial, to bar an individual from holding office in the future, the text of the Constitution does not clearly indicate that a vote for disqualification from future office must be taken separately from the initial vote for conviction.[11] Instead, the potential for a separate vote for disqualification has arisen through the historical practice of the Senate.[12] The Senate did not choose to disqualify an impeached individual from holding future office until the Civil War era. Federal district judge West H. Humphreys took a position as a judge in the Confederate government but did not resign his seat in the United States government.[13] The House impeached Humphreys in 1862. The Senate then voted unanimously to convict Judge Humphreys and voted separately to disqualify the Humphreys from holding office in the future.[14] Senate practice since the Humphreys case has been to require a simple majority vote to disqualify an individual from holding future office, rather than the supermajority required by the Constitution's text for removal, but it is unclear what justifies this result beyond historical practice.[15]

The second impeachment trial of Donald Trump saw the President's attorneys argue that the dual punishments of removal and disqualification are linked. They asserted that removal and disqualification are not "separate or alternative punishment[s]" but instead that removal was a "condition precedent" to the "further penalty" of disqualification.[16] As such, the President's attorneys argued that as a textual matter, there can be no impeachment of former officials because the necessary punishment of removal is not available when the official has already left office. The House managers rejected this interpretation during the impeachment trial, arguing that the punishments are indeed separate and have been historically treated as such. Linking the two punishments "defies logic" the managers argued, for "[i]f a law sets out two possible penalties and one of them becomes unavailable, that does not mean that the offender is exempt from the penalty that remains."[17] Ultimately, the Senate's decision to exercise jurisdiction over the second Trump impeachment appears to be an implicit rejection of the President's position.[18]

The Senate's power to convict and remove individuals from office, as well as to bar them from holding office in the future, does not overlap with criminal remedies for misconduct. Indeed, the unique nature of impeachment as a political remedy distinct from criminal proceedings ensures that "the most powerful magistrates should be amenable to the law."[19] Rather than serving to police violations of strictly criminal activity, impeachment is a "method of national inquest into the conduct of public men" for "the abuse or violation of some public trust."[20] Impeachable offenses are those that "relate chiefly to injuries done immediately to the society itself."[21] Put another way, the purpose of impeachment is to protect the public interest, rather than impose a punitive measure on an individual.[22] This distinction was highlighted in the impeachment trial of federal district judge Alcee Hastings. Judge Hastings had been indicted for a criminal offense, but was acquitted.[23] In 1988, the House impeached Hastings for much of the same conduct for which he had been indicted. Judge Hastings argued that the impeachment proceedings constituted "double jeopardy" because of his previous acquittal in a criminal proceeding.[24] The Senate rejected his motion to dismiss the articles against him.[25] The Senate voted to convict and remove Judge Hastings on eight articles, but it did not disqualify him from holding office in the future.[26] Judge Hastings was subsequently elected to the House of Representatives.[27]

  1. Art. II, Section 4 Impeachment; 3 Lewis Deschler, Precedents of the United States of the House of Representatives, H.R. Doc. No. 94-661, at Ch. 14 § 3.8 (1974), [1].
  2. See 3 Asher C. Hinds, Hinds' Precedents of the House of Representatives of the United States § 2397 (1907), [2]; 6 Clarence Cannon, Cannon's Precedents of the House of Representatives of the United States § 512 (1936), [3] [hereinafter Cannon].
  3. See 6 Cannon, supra note here, at § 512. See, e.g., 49 Cong. Rec. 1447-48 (1913) (vote to disqualify Judge Robert W. Archbald, thirty-nine yeas, thirty-five nays).
  4. See Waggoner v. Hastings, 816 F. Supp. 716 (S.D. Fla. 1993).
  5. The Constitution contains a number of provisions that are relevant to the impeachment of federal officials. Article I, Section 2, Clause 5 grants the sole power of impeachment to the House of Representatives; Article I, Section 3, Clause 6 assigns the Senate sole responsibility to try impeachments; Article I, Section 3, Clause 7 provides that the sanctions for an impeached and convicted individual are limited to removal from office and potentially a bar from holding future office, but an impeachment proceeding does not preclude criminal liability; Article II, Section 2, Clause 1 provides that the President enjoys the pardon power, but it does not extend to cases of impeachment; and Article II, Section 4 defines which officials are subject to impeachment and what kinds of misconduct constitute impeachable behavior. Article III does not mention impeachment expressly, but Section 1, which establishes that federal judges shall hold their seats during good behavior, is widely understood to provide the unique nature of judicial tenure. And Article III, Section 2, Clause 3 provides that trials, "except in Cases of Impeachment, shall be by jury."
  6. Art. II, Section 4 Impeachment.
  7. See discussion Art. II, Sec. 4: Judicial Impeachments.
  8. See id.
  9. Art. II, Sec. 2, Clause 1 Military, Administrative, and Clemency.
  10. For more on the background of the Constitution's impeachment provisions, see Art. III, Sec. 1: Historical Background on Good Behavior Clause; Art. I, Sec. 3, Cl. 6: Historical Background on Impeachment Trials; Art. II, Sec. 4: Historical Background on Impeachable Offenses.
  11. Art. I, Sec. 3, Clause 7 Impeachment Judgments.
  12. See 6 Clarence Cannon, Cannon's Precedents of the House of Representatives of the United States § 512 (1936), [4]. See, e.g., 49 Cong. Rec. 1447-48 (1913) (vote to disqualify Judge Robert W. Archbald, thirty-nine yeas, thirty-five nays).
  13. Emily F.V. Tassel & Paul Finkelman, Impeachable Offenses: A Documentary History from 1787 to the Present 87-88, 114-16 (1999).
  14. Eleanore Bushnell, Crimes, Follies, and Misfortunes: The Federal Impeachment Trials 123 (1992); see Art. I, Sec. 3, Clause 7 Impeachment Judgments ("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.").
  15. Art. I, Sec. 3, Clause 7 Impeachment Judgments.
  16. Proceedings of the United States Senate in the Impeachment Trial of Donald John Trump, Part II, 117th Cong., S. Doc. No. 117-2, at 141 (2021).
  17. Proceedings of the United States Senate in the Impeachment Trial of Donald John Trump, Part III, 117th Cong., S. Doc. No. 117-2, at 200-01 (2021).
  18. 167 Cong. Rec. S609 (daily ed. Feb. 9, 2021).
  19. James Wilson, Lectures on Law, reprinted in, 1 The Works of James Wilson 425-26 (1791).
  20. See The Federalist No. 65 (Alexander Hamilton).
  21. See Id.
  22. 8 Annals of Cong. 2251 (1798).
  23. H.R. Res. 499 (Aug. 9, 1988); H. Comm. on the Judiciary, Impeachment of Judge Alcee L. Hastings, Report of the Comm. on the Judiciary to Accompany H. Res. 499, 100th Cong., 2d Sess., H.R. Rep. No. 100-810, at 1-5 (1988).
  24. Impeachment of Judge Alcee L. Hastings, Motions of Judge Alcee L. Hastings to Dismiss Articles I-XV and XVII of the Articles of Impeachment Against Him and Supporting and Opposing Memoranda, 101st Cong., 1st Sess., S. Doc. No. 101-4, at 48-65 (1989).
  25. The Impeachment Trial of Alcee L. Hastings (1989) U.S. District Judge, Florida, U.S. Senate, [5] (last visited Jan. 24, 2018).
  26. 135 Cong. Rec. S13,783-87 (daily ed. Oct. 20, 1989).
  27. See Waggoner v. Hastings, 816 F. Supp. 716 (S.D. Fla. 1993).