A Historical Note on Impeachment

No one has asked me my legal opinion. I will give it anyway.

Those who say that impeachment is a political process unhindered by legal considerations are wrong; those who say impeachment is a legal process restricted to violations of criminal law are likewise wrong.

Everyone is wrong, because everyone is simplifying a subtle legal argument.

In an impeachment trial, the Senate sits as a judicial court overseeing a criminal trial. The only permissible offenses in an impeachment trial are treason and bribery or “other high crimes and misdemeanors” (and Blackstone holds this phrase includes abuses of power and maladministration) which are of like magnitude.

The court of impeachment must abide by the Constitution’s prohibitions against punishing someone for a crime that was defined retroactively (ex post facto law) or that applied only to him individually (bill of attainder). These are two powers the English parliament claims but which the US Constitution specifically forbids.

The Constitution provides first, that “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury” and also provides that “The President . . . shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” This means that the matter being tried is a crime. “Cases of Impeachment” is a subset of “The Trial of all Crimes” involving “Offences against the United States.”

Does this mean an officer can be removed for an offense against the United States which is not, technically speaking, a felony or a misdemeanor?

I would argue that it does, but in a limited sense.  Abuse of power is, in that sense a “high crime or misdemeanor” — an ancient term of art well-defined in the legal literature — whereas “obstruction of Congress” is a meaningless phrase.

Let us look at the precedent.

The impeachment power of the House to issue an indictment has been used twenty times, resulting, to date, in eight convictions by the Senate.

Fifteen were federal judges, associate judges, or justices. One was a cabinet secretary, one was a senator. Three are Presidents. Richard Nixon resigned before impeachment inquiry was held.

These were the dates, names, charges and outcomes:

  1. 1797
    Sen. William Blount: conspiring to assist in Great Britain’s attempt to seize Spanish-controlled territories.
    Charges dismissed for lack of jurisdiction.
  2. 1803
    Judge John Pickering: Mental instability and intoxication on the bench.
    Found guilty; removed from office.
  3. 1804
    Justice Samuel Chase: Arbitrary and oppressive conduct of trials.
  4. 1830
    Judge James H. Peck: Abuse of the contempt power.
  5. 1862
    Judge West H. Humphreys: Refusing to hold court and waging war against the United States government.
    Found guilty; removed from office and disqualified from future office.
  6. 1868
    Pres. Andrew Johnson: violating the Tenure of Office Act by removing Secretary of War Edwin Stanton from office.
  7. 1873
    Judge Mark H. Delahay: Intoxication on the bench.
    Resigned prior to trial.
  8. 1876
    Secretary of War William W. Belknap: criminal disregard for his office and accepting payments in exchange for making official appointments.
  9. 1904
    Judge Charles Swayne: Abuse of contempt power and other misuses of office.
  10. 1912
    Judge Robert W. Archbald: Improper business relationship with litigants.
    Found guilty; removed from office and disqualified from future office.
  11. 1926
    Judge George W. English: Abuse of power.
  12. 1933
    Judge Harold Louderback: Favoritism in the appointment of bankruptcy receivers.
  13. 1936
    Judge Halsted L. Ritter: Favoritism in the appointment of bankruptcy receivers and practicing law while sitting as a judge.
    Found guilty; removed from office.
  14. 1986
    Judge Harry E. Claiborne: Income tax evasion and remaining on the bench following a criminal conviction.
    Found guilty; removed from office.
  15. 1989
    Judge Alcee L. Hastings: Perjury and conspiring to solicit a bribe.
    Found guilty; removed from office.
  16. 1989
    Judge Walter L. Nixon: Perjury before a federal grand jury.
    Found guilty; removed from office.
  17. 1998
    Pres. William J. “Slick Willie” Clinton: lying under oath to a federal grand jury and obstruction of justice.
  18. 2009
    Judge Samuel B. Kent: Sexual assault, obstructing and impeding an official proceeding, and making false and misleading statements.
  19. 2010
    Judge Thomas Porteous, Jr.: accepting bribes and making false statements under penalty of perjury.
    Found guilty; removed from office and disqualified from holding future office.
  20. 2020
    Pres. Donald J Trump: Abuse of Power and Obstruction of Congress.
    At the time of this writing, pending.