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Historical Development of Impeachment in the U.S. Senate

Constitutional Origins

In Federalist 65, Alexander Hamilton called impeachment a process designed "as a method of national inquest into the conduct of public men." Hamilton and his colleagues at the Constitutional Convention, who hammered out the provisions for impeachment, knew that the history of impeachment as a constitutional process dated from fourteenth-century England, when the fledgling Parliament sought to make the king's advisers accountable. By the mid-fifteenth century, impeachment had fallen into disuse in England, but, in the early seventeenth century, the excesses of the Stuart kings prompted Parliament to revive its impeachment power.

Even as the Constitution's framers toiled in Philadelphia, the impeachment trial of Warren Hastings was in progress in London and avidly followed in America. Hastings, who was eventually acquitted, was charged with oppression, bribery, and fraud as colonial administrator and first governor general in India.

The American colonial governments and early state constitutions followed the British pattern of trial before the upper legislative body on charges brought by the lower house. Despite these precedents, a major controversy arose at the Constitutional Convention about whether the Senate should act as the court of impeachment. Opposing that role for the Senate, James Madison and Charles Cotesworth Pinckney asserted that it would make the president too dependent on the legislative branch. They suggested, as alternative trial bodies, the Supreme Court or the chief justices of the state supreme courts. Hamilton and others argued, however, that such bodies would be too small and susceptible to corruption. In the end, after much wrangling, the framers selected the Senate as the trial forum. To Hamilton fell the task of explaining the convention's decision. In Federalist 65, he argued:

The Convention thought the Senate the most fit depository of this important trust. Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel confidence enough in its own situation, to preserve unawed and uninfluenced the necessary impartiality between an individual accused, and the representatives of the people, his accusers?

There was also considerable debate at the convention in Philadelphia over the definition of impeachable crimes. In the original proposals, the president was to be removed on impeachment and conviction "for mal or corrupt conduct," or for "malpractice or neglect of duty." Later, the wording was changed to "treason, bribery, or corruption," then to "treason or bribery" alone. Contending that "treason or bribery" were too narrow, George Mason proposed adding "mal-administration," but switched to "other high crimes and misdemeanors against the state" when Madison said that "mal-administration" was too broad. A final revision defined impeachable crimes as "treason, bribery or other high crimes and misdemeanors."

In the Constitution, the House is given the "sole power of impeachment." To the Senate is given "the sole power to try all impeachments." Impeachments may be brought against "the President, Vice President, and all civil officers of the United States." Conviction is automatically followed by "removal from office."

While the framers very clearly envisaged the occasional necessity of initiating impeachment proceedings, they put in place only a very general framework, leaving many questions open to differences of opinion and many details to be filled in. Despite the open-endedness, as Peter Charles Hoffer and N.E.H. Hull note in their book Impeachment in America 1635-1805, thanks to the framers: a tool used in Parliament to curb kings and punish placemen was molded into an efficient legislative check upon executive and judicial wrongdoing. The power of the English House of Commons to impeach anyone, for almost any alleged offense, was restrained; the threat of death and forfeiture upon conviction was lifted; and the interference of the Commons and the House of Lords with the regular courts of justice was limited. American impeachment law shifted, at first inadvertently and then deliberately, from the orbit of English precedent to a native republican course. Federal constitutional provisions for impeachment reflected indigenous experience and revolutionary tenets instead of English tradition.

Impact of Resignation

Throughout the Congress' two hundred years, several major questions have dogged impeachment proceedings. One concerns resignations. In general, the resignation of an official puts an end to impeachment proceedings because the primary objective, removal from office, has been accomplished. This was the case in the impeachment proceedings begun in 1974 against President Richard Nixon. However, resignation has not always been a foolproof way to preclude impeachment, as Secretary of War William Belknap found out in 1876. Belknap, tipped off in advance that a House committee had unearthed information implicating him in the acceptance of bribes in return for lucrative Indian trading posts, rushed to the White House and tearfully begged President Ulysses Grant to accept his resignation at ten o'clock on the morning of March 2, 1876. Around three o'clock that afternoon, representatives, furious at both the president and Belknap for thwarting them, impeached Belknap by voice vote anyway. The Senate debated the question of its jurisdiction, in light of Belknap's resignation, and decided by a vote of 37 to 29 that he could be impeached. But at the end of Belknap's sensational trial in the summer of 1876, he was found not guilty of the charges, not because the senators believed him innocent (most did not), but because most had decided they in fact had no jurisdiction over Belknap, then a private citizen.

Definition of Offenses

Another question, the one debated most hotly by members of Congress, defense attorneys, and legal scholars from the first impeachment trial to the most recent trial of President William Clinton, concerns the issue of what exactly is an impeachable offense. The task of definition left to future legislators by the framers has proved perplexing. Treason and bribery, the two constitutionally designated impeachable crimes, were clear cut. But what were "high crimes and misdemeanors?" Were misdemeanors lesser crimes, or merely misconducts? Did a high crime or misdemeanor have to be a violation of written law? Over the years, "high crimes and misdemeanors" have been anything the prosecutors have wanted them to be. In an unsuccessful attempt to impeach Supreme Court Justice William O. Douglas in 1960, Representative Gerald Ford declared: "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history." The phrase is the subject of continuing debate, pitting broad constructionists, who view impeachment as a political weapon, against narrow constructionists, who regard impeachment as being limited to offenses indictable at common law.

Narrow constructionists won a major victory when Supreme Court Justice Samuel Chase was acquitted in 1805, using as his defense the argument that the charges against him were not based on any indictable offense. President Andrew Johnson won acquittal with a similar defense in 1868. But the first two convictions in the twentieth century, those of Judge Robert Archbald in 1913 and Judge Halsted Ritter in 1936, neither of whom had committed indictable offenses, made it clear that the broad constructionists still carried considerable weight. The debate continued during the 1974 investigation into the conduct of President Nixon, with the staff of the House Judiciary Committee arguing for a broad view of "high crimes and misdemeanors" while Nixon's defense attorneys understandably argued for a narrow view.

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