Article I, Section 2, Clause 5:

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

While legal doctrine developed from judicial opinions informs much of constitutional law, the understood meaning of the Constitution’s provisions is also shaped by institutional practices and political norms.1 James Madison believed that the meaning of the Constitution would be “liquidated” over time or determined through a “regular course of practice.” 2 Justice Joseph Story thought this principle applied to impeachment, noting for example that the Framers understood that the meaning of “high crimes and misdemeanors” constituting impeachable offenses would develop over time, much like the common law.3 Indeed, Justice Story believed it would be impossible to precisely define the full scope of political offenses that may constitute impeachable behavior.4 Consequently, the historical practices of the House with regard to impeachment flesh out the meaning of the Constitution’s grant of the impeachment power to that body.

Generally speaking, the impeachment process has been initiated in the House by a Member via resolution or declaration of a charge,5 although anyone—including House Members, a grand jury, or a state legislature—may request that the House investigate an individual for impeachment purposes.6 Indeed, in modern practice, a number of impeachments have been sparked by referrals from an external investigatory body.7 Beginning in the 1980s, the Judicial Conference has referred its findings to the House recommending an impeachment investigation into a number of federal judges who were eventually impeached.8 Similarly, in the impeachment of President Bill Clinton, an independent counsel—a temporary prosecutor given statutory independence and charged with investigating certain misconduct when approved by a judicial body9 —first conducted an investigation into a variety of alleged activities on the part of the President and his associates, and then delivered a report to the House detailing conduct that the independent counsel considered potentially impeachable.10

Regardless of the source requesting an impeachment investigation, the House has sole discretion under the Constitution to actually begin any impeachment proceedings against an individual.11 In practice, impeachment investigations are often handled by an already existing or specially created subcommittee of the House Judiciary Committee.12

, at 6 (2010) [hereinafter Porteous Impeachment] (describing the creation by the House Judiciary Committee of an Impeachment Task Force to investigate allegations against Judge Porteous). The investigations that ultimately led to the first impeachment of President Donald Trump were carried out by multiple House committees, including the Permanent Select Committee on Intelligence and the Committees on Financial Services, Foreign Affairs, Judiciary, Oversight and Reform, and Ways and Means. See Staff of H. Perm. Select Comm. on Intelligence, et al., 116th Cong., The Trump-Ukraine Impeachment Inquiry Report: Report for the H. Perm. Select Comm. on Intelligence Pursuant to H. Res. 660 in Consultation with the H. Comm. on Oversight and Reform and the H. Comm. on Foreign Affairs (Comm. Print 2019). The early stages of this investigation saw some controversy over whether the House must explicitly authorize the initiation of an impeachment investigation. While the House committees had previously been investigating possible misconduct by President Trump, on September 24, 2019, the Speaker of the House announced that these investigations constituted an “official impeachment inquiry.” Press Release, Nancy Pelosi, Speaker of the House, Pelosi Remarks Announcing Impeachment Inquiry (Sept. 24, 2019), https://www.speaker.gov/newsroom/92419-0. The House, as an institution, did not take action to approve explicitly the impeachment investigation until October 31, 2019, when the body adopted a resolution formally authorizing the House committees “to continue their ongoing investigations as part of the existing House of Representatives inquiry into whether sufficient grounds exist for the House of Representatives to exercise its Constitutional power to impeach Donald John Trump, President of the United States of America.” H.R. Res. 660, 116th Cong. (2019). Although the Department of Justice, Office of Legal Counsel concluded that the House “must expressly authorize a committee to conduct an impeachment investigation,” see House Committees’ Authority to Investigate for Impeachment, 44 Op. O.L.C., slip op. at *53 (Jan. 19, 2020), https://www.justice.gov/olc/opinion/house-committees-authority-investigate-impeachment, it would appear that such an authorization is not strictly necessary given the existing tools and authority available to House committees to conduct more traditional legislative investigations into Executive Branch misconduct. For a more thorough discussion of this subject, see Todd Garvey, Cong. Rsch. Serv., R45983, Congressional Access to Information in an Impeachment Investigation (2019), https://crsreports.congress.gov/product/pdf/R/R45983. The scope of the investigation can vary. In some instances, an entirely independent investigation may be initiated by the relevant House committee or subcommittee. In other cases, an impeachment investigation may rely on records delivered by outside entities, such as that delivered by the Judicial Conference or an independent counsel.13 Following this investigation, the full House may vote on the relevant impeachment articles. If articles of impeachment are approved, the House chooses managers to bring the case before the Senate.14 The managers then present the articles of impeachment to the Senate, request that the body order the appearance of the accused,15 and typically act as prosecutors in the Senate trial.16

The House has impeached twenty individuals: fifteen federal judges, one Senator, one Cabinet member, and three Presidents.17

, U.S. House of Representatives, http://history.house.gov/Institution/Impeachment/Impeachment-List/ (last visited Dec. 7, 2021). The consensus reflected in these proceedings is that impeachment may serve as a means to address misconduct that does not necessarily give rise to criminal sanction. The types of conduct that constitute grounds for impeachment in the House appear to fall into three general categories: (1) improperly exceeding or abusing the powers of the office; (2) behavior incompatible with the function and purpose of the office; and (3) misusing the office for an improper purpose or for personal gain.18 Consistent with scholarship on the scope of impeachable offenses,19 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.” 20

While successful impeachments and convictions of federal officials represent some clear guideposts as to what constitutes impeachable conduct,21 impeachment processes that do not result in a final vote for impeachment also may influence the understanding of Congress, Executive and Judicial Branch officials, and the public regarding what constitutes an impeachable offense.22 A prominent example involves the first noteworthy attempt at a presidential impeachment, which was aimed at John Tyler in 1842. At the time, the presidential practice had generally been to reserve vetoes for constitutional, rather than policy, disagreements with Congress.23 Following President Tyler’s veto of a tariff bill on policy grounds, the House endorsed a select committee report condemning President Tyler and suggesting that he might be an appropriate subject for impeachment proceedings.24 The possibility apparently ended when the Whigs, who had led the movement to impeach, lost their House majority in the midterm elections.25 In the years following the aborted effort to impeach President Tyler, presidents have routinely used their veto power for policy reasons. This practice is generally seen as an important separation of powers limitation on Congress’s ability to pass laws rather than a potential ground for impeachment.26

Likewise, although President Richard Nixon resigned before impeachment proceedings were completed in the House, the approval of three articles of impeachment by the House Judiciary Committee against him may inform lawmakers’ understanding of conduct that constitutes an impeachable offense.27 The approved impeachment articles included allegations that President Nixon obstructed justice by using the office of the presidency to impede the investigation into the break-in of the Democratic National Committee headquarters at the Watergate Hotel and Office Building and authorized a cover-up of the activities that were being investigated. President Nixon was alleged to have abused the power of his office by using federal agencies to punish political enemies and refusing to cooperate with the Judiciary Committee’s investigation.28 While no impeachment vote was taken by the House, the Nixon experience nevertheless established what some would call the paradigmatic case for impeachment—a serious abuse of the office of the presidency that undermined the office’s integrity.29

However, one must be cautious in extrapolating wide-ranging lessons from the lack of impeachment proceedings in the House. Specific behavior not believed to constitute an impeachable offense in prior contexts might be deemed impeachable in a different set of circumstances. Moreover, given the variety of contextual permutations, the full scope of impeachable behavior resists specification,30 and historical precedent may not always serve a useful guide to whether conduct is grounds for impeachment For instance, no President has been impeached for abandoning the office and refusing to govern. The fact that this event has not occurred, however, hardly indicates that such behavior would not constitute an impeachable offense meriting removal from office.31

Footnotes

1

See Keith Whittington, Constitutional Construction 3 (1999); II Joseph Story, Commentaries on the Constitution of the United States § 762 (1833) ( “The offences, to which the power of impeachment has been, and is ordinarily applied, as a remedy, are of a political character.” ).

2

The Federalist No. 37 (Alexander Hamilton); Letter to Spencer Roane (Sept. 2, 1819), in 8 Writings of James Madison 450 (G. Hunt ed. 1908).

3

Story, supra note 1, at § 797; ( “[N]o previous statute is necessary to authorize an impeachment for any official misconduct.” ); id. at § 798 ( “In examining the parliamentary history of impeachments, it will be found, that many offences, not easily definable by law, and many of a purely political character, have been deemed high crimes and misdemeanours worthy of this extraordinary remedy.” ); see also Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 104–05 (2000).

4

Story, supra note 1, at § 762 ( “Not but that crimes of a strictly legal character fall within the scope of the power, (for, as we shall presently see, treason, bribery, and other high crimes and misdemeanours are expressly within it;) but that it has a more enlarged operation, and reaches, what are aptly termed, political offences, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties of political office. These are so various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law.” ); id. at § 795 ( “Again, there are many offences, purely political, which have been held to be within the reach of parliamentary impeachments, not one of which is in the slightest manner alluded to in our statute book. And, indeed, political offences are of so various and complex a character, so utterly incapable of being defined, or classified, that the task of positive legislation would be impracticable, if it were not almost absurd to attempt it.” ).

5

See 3 Asher C. Hinds, Hinds’ Precedents of the House of Representatives of the United States §§ 2342, 2400, 2469 (1907), https://www.govinfo.gov/content/pkg/GPO-HPREC-HINDS-V3/pdf/GPO-HPREC-HINDS-V3.pdf [hereinafter Hinds]; 116 Cong. Rec. 11,941–42 (1970); 119 Cong. Rec. 74,873 (1974); see also Wm. Holmes Brown et al., House Practice: A Guide to the Rules, Precedents, and Procedures of the House ch. 27 § 6 (2011), https://www.govinfo.gov/content/pkg/GPO-HPRACTICE-112/pdf/GPO-HPRACTICE-112.pdf [hereinafter House Practice].

6

See Gerhardt, supra note 3, at 25; 3 Lewis Deschler, Precedents of the United States of the House of Representatives, H.R. Doc. No. 94-661, at Ch. 14 §§ 5, 5.10–5.11 (1974), https://www.govinfo.gov/content/pkg/GPO-HPREC-DESCHLERS-V3/pdf/GPO-HPREC-DESCHLERS-V3.pdf [hereinafter Deschler].

7

The Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 authorizes the Judicial Conference to forward a certification to the House that impeachment of a federal judge may be warranted. 28 U.S.C. § 355.

8

See Gerhardt, supra note 3, at 176.

9

See 28 U.S.C. §§ 591–99. The statute authorizing the appointment of an independent counsel expired in 1999. Id. § 599.

10

See Gerhardt, supra note 3, at 176. The impeachment investigation of President Nixon also began with the referral by special prosecutor Leon Jaworski of material relating to possible impeachable conduct to the House Judiciary Committee. Gerhardt, supra note 3, at 176.

11

U.S. Const. art. I, § 2, cl. 5.

12

See Gerhardt, supra note 3, at x–xi; see, e.g., Report of the Impeachment Trial Comm. on the Articles Against Judge G. Thomas Porteous, Jr., 111th Cong., 2d Sess., S. Rep. No.

111-347

, at 6 (2010) [hereinafter Porteous Impeachment] (describing the creation by the House Judiciary Committee of an Impeachment Task Force to investigate allegations against Judge Porteous). The investigations that ultimately led to the first impeachment of President Donald Trump were carried out by multiple House committees, including the Permanent Select Committee on Intelligence and the Committees on Financial Services, Foreign Affairs, Judiciary, Oversight and Reform, and Ways and Means. See Staff of H. Perm. Select Comm. on Intelligence, et al., 116th Cong., The Trump-Ukraine Impeachment Inquiry Report: Report for the H. Perm. Select Comm. on Intelligence Pursuant to H. Res. 660 in Consultation with the H. Comm. on Oversight and Reform and the H. Comm. on Foreign Affairs (Comm. Print 2019). The early stages of this investigation saw some controversy over whether the House must explicitly authorize the initiation of an impeachment investigation. While the House committees had previously been investigating possible misconduct by President Trump, on September 24, 2019, the Speaker of the House announced that these investigations constituted an “official impeachment inquiry.” Press Release, Nancy Pelosi, Speaker of the House, Pelosi Remarks Announcing Impeachment Inquiry (Sept. 24, 2019), https://www.speaker.gov/newsroom/92419-0. The House, as an institution, did not take action to approve explicitly the impeachment investigation until October 31, 2019, when the body adopted a resolution formally authorizing the House committees “to continue their ongoing investigations as part of the existing House of Representatives inquiry into whether sufficient grounds exist for the House of Representatives to exercise its Constitutional power to impeach Donald John Trump, President of the United States of America.” H.R. Res. 660, 116th Cong. (2019). Although the Department of Justice, Office of Legal Counsel concluded that the House “must expressly authorize a committee to conduct an impeachment investigation,” see House Committees’ Authority to Investigate for Impeachment, 44 Op. O.L.C., slip op. at *53 (Jan. 19, 2020), https://www.justice.gov/olc/opinion/house-committees-authority-investigate-impeachment, it would appear that such an authorization is not strictly necessary given the existing tools and authority available to House committees to conduct more traditional legislative investigations into Executive Branch misconduct. For a more thorough discussion of this subject, see Todd Garvey, Cong. Rsch. Serv., R45983, Congressional Access to Information in an Impeachment Investigation (2019), https://crsreports.congress.gov/product/pdf/R/R45983.

13

See Gerhardt, supra note 3, at 26. The House also did not conduct independent fact finding in the impeachments of President Bill Clinton, President Andrew Johnson, and Judge Harry E. Claiborne. Id. at 177. In the second impeachment of President Trump, the House conducted no formal impeachment investigation, but the staff of the Committee on the Judiciary presented the House with a report supporting the impeachment and outlining the events of January 6, 2020. See Staff of H. Comm. on the Judiciary, 116th Cong., Materials in Support of H. Res. 24 Impeaching Donald John Trump, President of the United States, for High Crimes and Misdemeanors (Comm. Print 2021).

14

House Practice, supra note 5, at 616–19.

15

Gerhardt, supra note 3, at 33. During the first impeachment of President Trump, the impeachment articles were adopted by the House on December 18, 2019, H.R. Res. 755, 116th Cong. (2019), but the managers were not appointed and the articles not delivered to the Senate until January 15, 2020. H. R. Res. 798, 116th Cong. (2020).

16

3 Hinds, supra note 5, at §§ 2303, 2370, 2390, 2420, 2449.

17

See

List of Individuals Impeached by the House of Representatives

, U.S. House of Representatives, http://history.house.gov/Institution/Impeachment/Impeachment-List/ (last visited Dec. 7, 2021).

18

House Practice, supra note 5, at 608–13. For examples of impeachments that fit into these categories, see Cong. Globe, 40th Cong., 2d Sess. 1400 (1868) (impeaching President Andrew Johnson for violating the Tenure of Office Act); 132 Cong. Rec. H4710–22 (daily ed. July 22, 1986) (impeaching Judge Harry E. Claiborne for providing false information on federal income tax forms); 156 Cong. Rec. 3155–57 (2010) (impeaching Judge G. Thomas Porteous for engaging in a corrupt relationship with bail bondsmen where he received things of value in return for helping bondsmen develop relationships with state judges).

19

Gerhardt, supra note 3, at 48.

20

H. Comm. on the Judiciary, 93d Cong., Constitutional Grounds for Presidential Impeachment 17 (Comm. Print 1974).

21

See ArtII.S4.4.2 Historical Background on Impeachable Offenses.

22

See generally ArtII.S4.4.3 Jurisprudence on Impeachable Offenses (1789–1860) et seq. In 1970, for instance, a Subcommittee of the House Judiciary Committee was authorized to conduct an impeachment investigation into the conduct of Justice William O. Douglas, but ultimately concluded that impeachment was not warranted. Associate Justice William O. Douglas, Final Report by the Special Subcomm. on H. Res. 920 of the Comm. on the Judiciary, 91st Cong., 2d Sess. (Comm. Print 1970).

23

See generally Michael Gerhardt, Forgotten Presidents 41–47 (2013) [hereinafter Gerhardt, Forgotten Presidents].

24

Oliver P. Chitwood, John Tyler: Champion of the Old South 299–300 (1939).

25

Gerhardt, Forgotten Presidents, supra note 23, at 57.

26

Randall K. Miller, Presidential Sanctuaries After the Clinton Sex Scandals, 22 Harv. J.L. & Pub. Pol’y 647, 706–07 (1999) ( “The Senate acquittal of President Andrew Johnson and the House’s failed attempt to impeach President John Tyler implies that even a deeply felt congressional disagreement with a target’s policies or political philosophies alone is not enough to justify removal.” ).

27

See H. Comm. on the Judiciary, Impeachment of Richard M. Nixon, President of the United States, 93d Cong., 2d Sess., H.R. Rep. No. 93–1305, at 6–11 (1974) [hereinafter Nixon Impeachment]; United States v. Nixon, 418 U.S. 683, 713–14 (1974).

28

Nixon Impeachment, supra note 27, at 6–11; see ArtII.S4.4.7 President Richard Nixon and Impeachable Offenses.

29

See ArtII.S4.4.7 President Richard Nixon and Impeachable Offenses.

30

See Gerhardt, supra note 3, at 106.

31

See Charles Black, Impeachment: A Handbook 33–36 (1974).