Article II, Section 4

The impeachment power exists at the far margins of American constitutionalism. The Founders sought to create three branches of government, each independent of the others and enmeshed in a system of checks and balances. They thought that if government power collapsed into a single set of officials, civil liberty and political effectiveness would be compromised. Each branch of government was armed with its own set of powers and responsibilities and given sufficient tenure and resources to be able to act on its own judgment.

But the desire for independence had to be balanced against a concern with accountability. Government officials needed to be independent enough to be able to act in the public interest, but not so independent as to be able to exercise unchecked power. When the Founders wanted to ensure accountability, they mostly relied on elections and the voters to hold government officials responsible for their actions. But for cases in which abusive behavior could not be tolerated until the next election, they provided for the possibility of impeachment and removal. That power they were only willing to entrust to the most democratic branch of the government, the legislature.

If the impeachment power is going to serve its purpose, it needs to be flexible. When drafting the Impeachment Clause, the delegates in Philadelphia rejected the proposal that officials could be removed for “maladministration.” They preferred language that emphasized abuses and crimes; impeachment in cases of “Treason, Bribery, or other high Crimes and Misdemeanors.” But what might fall into the category of “other high Crimes and Misdemeanors” was still quite unclear.

There are risks associated with either a narrow or broad reading of impeachable offenses. A narrow reading of the Clause risks making the impeachment power inflexible and unable to respond to unanticipated bad behavior on the part of government officials. A broad reading of the Clause risks creating a partisan weapon that can be used by legislators to undermine the independence of other government officials.

If the examples of treason and bribery are taken to be characteristic of the full scope of impeachable offenses, then government officials might only be removable if they commit criminal acts involving their public office. That is an important class of misdeeds, but it seems unlikely that it would capture the full range of behavior that might put the public good in immediate jeopardy. Merely “private” offenses like tax evasion, perjury, sexual assault and obstruction of justice have been deemed worthy of impeachment investigations precisely because they call into question that ability of a judge or executive officer to continue to properly perform their duties and maintain the dignity and respect of the office that they hold. Even some instances of non-criminal misbehavior by a high government official might be regarded as too intolerable to allow them to continue to exercise their public responsibilities.

The broader the category of impeachable offenses is understood to be the easier it is for mere political disagreements to become grounds for impeachment investigations. It is all too common for partisans to believe that their political foes are not just wrong but dangerously wrong, not just mistaken but willfully mistaken, not just erroneous but abusive. If the impeachment power is used to settle political scores, then the independence of the separate branches of government will be undermined. If routine impeachments became a tool for overcoming policy disputes and political obstructions, then political power would gradually be centralized in Congress, with the judiciary and the executive reduced to being little more than extensions of the legislative will. The Constitution was not designed to have Presidents and judges sit only at the pleasure of the Congress.

In practice, three factors have discouraged Congress from abusing the impeachment power. First, the House and the Senate have built up precedents over time that give some substantive content to the scope of impeachable offenses. The House is more comfortable pursuing an impeachment and the Senate more comfortable in convicting in the case of an impeachment if the alleged actions are similar to the kinds of behavior that have led to impeachments and convictions in the past.

Second, the Constitution not only sets a substantive standard for impeachable offenses; it also creates procedural barriers for removing government officers. The House must muster a majority to sustain an impeachment effort, and the House managers must be able to persuade two-thirds of the Senators to win a conviction. Especially in the Senate, that hurdle necessitates building a coalition that crosses party lines. A narrowly partisan impeachment effort is unlikely to result in a conviction and removal, and so House leaders have rarely thought impeachments are worth the effort unless members of the minority party are in agreement that impeachable offenses have been committed.

Third, the members of Congress are ultimately accountable to the voters for their actions. If the public is not convinced that an impeachment is justified, legislators are disinclined to risk their own reelection by tilting at windmills.

The Founders left a powerful weapon in the hands of Congress in the form of the impeachment power. Like all powers, the impeachment power is subject to misuse and abuse. The ultimate check on how that power is used is public sentiment. The burden is on those who think that an impeachment is appropriate to persuade others that the circumstances warrant taking such drastic measures. Exercising the impeachment power requires the ability to reach across the political aisle and forge a political consensus that the danger of leaving an individual in power is too great to be risked. In the absence of that consensus, legislators are forced to rely on the more mundane tools that they have at their disposal to check abuses of power and advance the public welfare.

What sort of conduct is so harmful that Congress is justified in impeaching and removing an officer who commits it? The Constitution’s answer is “treason, bribery, or other high crimes and misdemeanors.” Treason and bribery are clear enough, but the concluding phrase “other high crimes and misdemeanors” is anything but clear.

It is open-ended for the reason many constitutional provisions are vague and open-ended. In the words of the great Chief Justice John Marshall, the “constitution [is] intended to endure for ages to come and, consequently, to be adapted to the various crises of human affairs.” In the context of impeachment, this means that the Constitution cannot be expected to specify in detail every ground on which impeachment is or is not permissible. If it attempted to do so, an individual who should be impeached might evade this punishment because the officer’s conduct does not meet some technical element of the definition even though the officer’s conduct had so harmed the nation that all agree the officer should be removed. Instead, the Constitution sets forth the general principle of impeachment and leaves its more specific definition to be developed by the House of Representatives and the Senate.

In this light, then-Representative Gerald Ford’s claim that the House could impeach an officer on any ground it wishes may seem plausible. But the Ford position goes too far. It ignores the Constitution’s text and structure. If the Constitution means to allow impeachment on any ground whatsoever, then why would the Constitution bother to set forth that impeachment and removal may be based only on conduct that rises to the level of “treason, bribery, or other high crimes and misdemeanors”? In fact, the Framers debated this phrase and settled on this formulation precisely to prohibit Congress from impeaching officers for any reason at all. The Framers were determined to limit the grounds on which an officer could be impeached in order to safeguard another constitutional principle: the separation of powers. 

It is clear that, in our constitutional system of government, the executive branch (the President, the cabinet, and other officers subordinate to the President) and the judiciary (the Supreme Court and the lower federal courts) are to be independent from the legislature (the House of Representatives and the Senate). The Framers recognized the potential for impeachment to undermine this principle. It is a well-established legal principle that the power to remove is the power to control. The President, for example, can control the agencies of the executive branch principally because the President can remove the heads of the agencies (such as cabinet secretaries) for any reason at all, including for not following an order from the President. They are said to serve at-will because the President can remove them at will. If Congress can impeach and remove the President or Supreme Court Justices for any reason at all, then these officers serve at the will of Congress and are subject to its control. 

An early draft of the Constitution gave Congress the power to impeach and remove officers for “maladministration.” James Madison objected to this because the term was so vague that it would allow impeachment for any reason at all. As he put it, “so vague a term will be equivalent to a tenure during the pleasure of the Senate.” The term “maladministration" was then deleted from the draft and replaced by the phrase “other high crimes and misdemeanors.” This shows that the Framers meant for the phrase “high crimes and misdemeanors” to signify only conduct that seriously harms the public and seriously compromises the officer’s ability to continue. If the phrase is given a less rigorous interpretation, it could allow Congress to influence and control the President and the courts. 

There is a second constitutional principle at stake in defining the scope of the impeachment power: our commitment to democracy. Allowing Congress to remove Presidents, and executive officers who serve under them, has the effect of thwarting the will of the people. After all, the President is elected to serve a four-year term. How, in a democracy, can we justify giving Congress (or anyone other than the people, for that matter) the power to overrule a presidential election? This can only be justified on the ground that the President has committed acts so dangerous to the public that the President may not be allowed to remain in office until the next election.

Imagine, for example, if it were discovered that a President was secretly a spy and agent for a foreign power. In that sort of case all would agree that the danger to our constitutional system of government, indeed to our nationhood, is such that it is impractical to wait for a presidential election to remove the President. The Framers agreed on this point too. But this emphasizes just how important it is to limit the power to truly egregious conduct and serious harms to the public. Otherwise, this narrow and speculative potential could undermine our basic commitment to democracy.

The constitutional commitment to democracy could explain an interesting feature of the history of impeachments in the United States: no President or executive officer has been removed from office through impeachment (though the threat of impeachment and conviction hastened the resignation of Secretary of War William Belknap in 1876 on charges of financial corruption). Each of the eight officers to be impeached, convicted, and removed has been a judge. Federal judges are appointed, not elected, and enjoy life tenure—that is, unlike a President who serves a four-year term, federal judges serve until they die or decide to retire. To remove a federal judge, then, does not raise the same sort of concerns about overruling an election that removing an executive branch officer does.

Three Presidents—Andrew Johnson, Bill Clinton and Donald Trump—have been impeached by the House of Representatives. None of them was convicted by the Senate. Andrew Johnson was impeached in 1868, the last year of his term. One important factor in his acquittal was the reluctance of several Senators to vote for impeachment with a presidential election so close at hand. Best, they thought, to let the voters have their say. Similarly, when the Senate met to try and deliberate on the impeachment of President Clinton, many argued that removing him from office would repudiate the judgment of the people who had reelected him. 

Impeachment is a powerful tool. It must be closely limited to situations of conduct that inflicts serious harm on the public and that seriously compromises the officer’s ability to function in office. Otherwise, it could undermine our constitutional system of separation of powers and thwart our fundamental commitment to democracy. The Framers wisely recognized these dangers and added the phrase “high crimes and misdemeanors” precisely to limit the scope of the impeachment power to these most egregious circumstances and to prohibit its use beyond them.