The Impeachment Legal Questions Project is a joint public education initiative of CREW and Protect Democracy that seeks to identify and address legal questions relating to the congressional impeachment inquiry on President Donald J. Trump. Information on relevant procedures, precedent, and laws will be posted on a rolling basis as issues emerge. 

 

Legal Questions and Answers on Impeachment

Sections
  • Basis for Impeachment
  • House Procedure
  • Senate Procedure
  • Additional Resources

 

Basis for Impeachment

The Constitution declares that “high Crimes and Misdemeanors” are impeachable offenses.  Is abuse of public office a “high crime or misdemeanor”?

Yes.  “High crimes and misdemeanors” is a term of art that predates the U.S. Constitution by 400 years.  The British used the term “high crimes and misdemeanors” to refer to a set of violations of trust in public (“high”) office.  To the British, the phrase “high crimes and misdemeanors” described misconduct in the form of “damage to the state in such forms as misapplication of funds, abuse of official power, neglect of duty, encroachment on Parliament’s prerogatives, corruption, and betrayal of trust.”

To the Framers and their contemporaries, acting with these British precedents in mind, abuse of public office was central to the meaning of “high crimes and misdemeanors.”  

  • James Madison’s notes of the Constitutional Convention show that delegates drafted the Impeachment Clause to guard against a President “abusing his power.”  
  • Delegates to the state ratification debates – including Madison himself – agreed that abuse of public office was core to the meaning of the term “high crimes and misdemeanors”
  • Alexander Hamilton wrote in Federalist 65 that the clause was intended to address “offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”  
  • Justice Joseph Story, America’s leading legal historian and jurist in the first half of the 19th century, wrote that impeachment was appropriate for “misdeeds” that “injure the commonwealth by the abuse of high offices of trust.

The House has also acted on this understanding in impeachment cases dating back over two hundred years.  The House has impeached multiple judges and one justice for alleged abuses of power, including Samuel Chase (1804), James Peck (1830), Charles Swayne (1904), and George English (1926).  And in 1974, the House Judiciary Committee approved the impeachment of President Nixon on the charge that he had abused his office by, among other things, using the FBI, CIA, and IRS to harass his political enemies.

What sorts of abuses of public office are impeachable?

Because the Framers wanted to leave future Congresses with discretion to combat abuses as they saw them, they did not precisely define all the abuses that would count as impeachable.  See, e.g., Federalist 65 (impeachment should not be “tied down” by a “strict . . . delineation of the offense”); Story’s Commentaries (“political offenses are of so various and complex a character . . . [they are] utterly incapable of being defined, or classified”).

In 1974, the House Judiciary Committee analyzed past impeachment cases and – without adopting strict parameters – concluded that the impeachable conduct fell into “three broad categories”: “(1) exceeding the constitutional bounds of the powers of the office, in derogation of the powers of another branch of government; (2) behaving in a manner grossly incompatible with the proper function and purpose of the office; and (3) employing the power of the office for an improper purpose or for personal gain.”  

Under the constitution does impeachment require a statutory violation?

A President may be impeached and removed for conduct that is not a violation of criminal law. This was the clear intent of the framers of the Constitution and has been Congress’s regular practice in the years since; the House’s own analysis of the articles of impeachment it has adopted over the years indicates that “[l]ess than one-third of all the articles the House has adopted have explicitly charged the violation of a criminal statute or used the word ‘criminal’ or ‘crime’ to describe the conduct alleged.” 

What potentially impeachable offenses are implicated by the conduct at issue in the proceedings to date?

In the conduct relating to Ukraine, impeachable offenses implicated include bribery, soliciting illegal campaign contributions from a foreign national, coercing federal employees to participate in politics, and misappropriation of federal funds, as well as obstructing Congress’s investigation of these matters.

Other conduct, such as obstruction of justice, campaign finance fraud, and acceptance of unconstitutional payments, may also be implicated.

CREW and Protect Democracy analysis: Five Key Takeaways from “The Trump-Ukraine Impeachment Inquiry Report” by the House Permanent Select Committee on Intelligence

What is bribery and what are some examples?

At the time the Constitution was drafted, “bribery” was understood as an officeholder’s use of the power of a public office to obtain a private benefit.

For example, William Hawkins’s A Treatise of the Pleas of the Crown, which was originally published in 1716, states that “[b]ribery in a large sense is sometimes taken for the receiving or offering of any undue reward, by or to any person whatsoever, whose ordinary profession or business relates to the administration of publick justice, in order to incline him to do a thing against the known rules of honesty and integrity.”  Similarly, Russell on Crimes, originally published in 1819, described bribery as “the receiving or offering [of] any undue reward by or to any person whatsoever, in a public office, in order to influence his behaviour in office, and incline him to act contrary to the known rules of honesty and integrity.” Other sources, including early state statutes prohibiting bribery, provide similar definitions.

Importantly, bribery as defined in the Constitution is not limited to acts for which the officer would be convicted under the current federal bribery statute, 18 U.S.C. § 201.  The Supreme Court has made it very difficult to prove section 201 crimes in part out of fear that federal prosecutors would aggressively use it against state officials and thereby disrupt our federalist system.  E.g. McDonnell v. United States, 579 U.S. ___ (2016). Those same barriers, and those same federalism concerns, don’t apply in the impeachment context.  More importantly, the Framers had no intent of tying the constitutional definition of bribery to federal criminal statutory law, as there was no federal criminal code at the time that the Constitution was drafted and the Framers had no reason to believe that Congress would enact federal criminal statutes in the future. Indeed, Congress would not enact a general federal bribery statute until 1853.  And nearly sixty years after its enactment, during the 1912 impeachment of Judge Archibald, the House of Representatives confirmed that “bribery” under the Constitution is not limited to “statuable crimes” under federal criminal statutory law. 

Does “bribery” cover the solicitation of a bribe?

Yes. At the Framing, bribery in almost all manifestations was understood to include the acts of soliciting a bribe and offering a bribe. 

As Lord Mansfield said in 1769, in the case of R. v. Vaughan, when it comes to bribery, “the attempt is a crime.” 

In Russell on Crimes, an authoritative treatise originally published in 1819, bribery is defined as “the receiving or offering [of] any undue reward by or to any person whatsoever, in a public office, in order to influence his behaviour in office, and incline him to act contrary to the known rules of honesty and integrity.” And as a 1915 Harvard Law Review article explains: “At common law the distinction between bribery and an attempt to bribe was largely academic; both were misdemeanors, and equally punishable.”

Does the President have legal authority to suspend the release of funds that Congress has appropriated?

Only if he follows certain procedures, and even then, only until the end of the fiscal year. 

The Impoundment Control Act of 1974 requires the President to notify Congress by special message within 10 days of deferring Congressionally authorized funds. If “either House passes within 60 days a simple resolution disapproving [the impoundment],” “the impoundment reported in that message would have to stop immediately.” The Act was enacted in 1974 to prevent the President from impounding Congressionally-authorized funds for policy reasons. 

Under the Act, a President may temporarily defer funds only “to provide for contingencies; . . . to achieve savings made possible by or through changes in requirements or greater efficiency of operations; or . . . as specifically provided by law.” Even then, the President may not propose to defer funds beyond the end of the fiscal year in which the proposal is made. 

If the President defers funds without transmitting a special message to Congress, the Comptroller General is required to make a report on the deferral to both Houses of Congress. The Comptroller General is also expressly authorized to sue to require the withheld funds to be made available.

In its December 2019 report on the impeachment of President Trump, the House Committee on Judiciary detailed the Committee’s concerns about the Administration’s compliance with the Impoundment Control Act during the hold on congressionally appropriated funding for Ukraine over the summer of 2019. 

An argument that President Trump’s conduct violated the Impoundment Control Act and additional background on the Act is laid out in a December 2019 article published in Just Security by Sam Berger.

 

House Procedures

When a simple majority of the full House (218) votes for any Article of Impeachment, the President is considered to be impeached. 

How do the Articles of Impeachment get to the floor? 

Any Representative can introduce articles of impeachment (and several already have). They typically go through the Judiciary committee before reaching the floor, and it appears that will happen in this case as well. H.Res. 660 sets the process the House is using to do this, including via the Intelligence Committee’s recent investigation into the Ukraine matter.

The House Judiciary Committee will then consider any articles of impeachment it deems appropriate, and will pass them to the full House for consideration, likely along with reports.

What happens after the House votes?

The Senate would then hold a trial, with House lawmakers serving as the prosecutors. Chief Justice Roberts would preside over the trial in the Senate. 2/3 of Senators present would need to vote to convict the President and remove him from office.

Once the House votes out the Articles of Impeachment, current Senate rules require the Senate to begin the trial within a day or so, and to continue in session until the trial ends.

These rules can be amended, but require a bipartisan vote. In the most recent Presidential impeachment trial (Clinton), the Senate supplemented these rules with limits on the amount of time each side had to present the case, as well as other procedural limits such as that a motion to dismiss would not be in order until after both sides’ presentations.

The President is automatically removed from office if convicted by the Senate – the Senate has the additional option to decide if they want to ban him from ever holding public office again.

 

Senate Procedures 

Can the Senators consider material not formally introduced to the Senate, such as the House managers’ rebuttal? 

Yes. The Senate does not regulate what evidence Senators consider as they search their conscience and sense of Justice when making their judgment. 

Legally, there is no articulated governing principle of what Senators must (or cannot) take into account (though, as CREW has argued, Senators should only take into account relevant evidence that helps them pursue impartial justice). Importantly, every time the Senate has considered what standard of proof to apply to its decisions in the trial, it has rejected the proposition that a specific standard applied to their decisions. Ultimately, the decision will come down to, as Prof. Charles Black explains, each Senator “find[ing] his own standard in his own conscience, as advised by reflection.” 

Moreover, practically, Senators will consider evidence that hasn’t been formally introduced in the Senate. As CREW’s Gabe Lezra explained in a recent article for NYU Law’s Just Security, “Because of the political nature of the presidential impeachment process, featuring public hearings and investigation in the House and countless stories in the media, much of the evidence that will determine the president’s conviction or exoneration is already in the public domain. There is simply no way to sequester the Senate.” Senators are political actors who consume public media; they will necessarily be subject to some material not formally introduced

Are Senators permitted to talk among themselves about the evidence, unlike a jury?

Yes. In criminal trials, a lay jury is sequestered and legally prohibited from internally or externally discussing the evidence presented by the two sides prior to the specifically-delineated deliberation period at the end of trial. However, the Senate is not a lay jury, and the impeachment trial is not a criminal trial. The Senate rules prohibit the Senators from speaking on the floor during the trial; however, there are no prohibitions on the Senators speaking outside of the chamber, or on the floor when the Senate is not organized as a court of impeachment. That is because, in part, Senators have a dual role in an impeachment trial: they are both jury and judge. As such, to import the rules that govern a lay criminal jury onto the Senate sitting as a court of impeachment would be to subsume one of its responsibilities–that of judge–into its other responsibility–that of a jury.

Has the Senate ever completed an impeachment trial without obtaining witness testimony?

No. The Senate has taken witness testimony in all of the completed Senate trials of federal officials impeached by the House of Representatives. 

Prior to the impeachment of President Trump, the House of Representatives impeached 19 individuals, and the Senate completed trials on 15 of these individuals. In all impeachment trials that proceeded through Senate acquittal or conviction, the Senate received testimony from witnesses either on the Senate floor, through depositions, or through a Senate impeachment trial committee. 

Impeached officials whose Senate trials involved witness testimony include:

The other four of the 19 individuals impeached by the House did not receive a full Senate trial due to resignation by the impeached official before the trial commenced (Judge Mark Delahay (1873)) or was completed (Judge George English (1926)) and Judge Samuel Kent (2009)); or dismissal of charges before commencement of the trial on jurisdictional grounds (Senator William Blount (1799)).

Who in the Senate wields subpoena power in the impeachment inquiry and what process surrounds its exercise?  

The Senate can subpoena witnesses and documents prior to the trial. In general, impeachment witnesses to be subpoenaed are named in the supplementary rules that are passed prior to the commencement of the trial. After the commencement of the trial, subpoenas can be issued upon motion by the House managers, the president, or the president’s counsel. The Chief Justice could rule on such a motion, or ask the Senate to rule. If the Senate agrees to the motion, the subpoena is issued. 

The subpoena is signed by the Chief Justice, and the Sergeant at Arms is directed to employ “such aid and assistance as may be necessary to enforce, execute and carry into effect” the order of the Senate. (Rule VI). It is unclear the extent to which “such aid and assistance as necessary” stretches, though a credible argument can be made that the Sergeant at Arms could make use of the military to enforce a subpoena, as that was the Senate’s original intent when adopting the phrase. (Johnson Impeachment, Impeachment Report at 78-79). The full extent of the Sergeant at Arms’ power has never been tested (as far we know), because nobody has ever refused to comply with a duly authorized subpoena during an impeachment trial. The Senate has, on occasion, adjourned to wait for witnesses to appear–this has only occurred in cases where the witnesses were far away from Washington, and were on their way to testify. (Impeachment Report at 82).

How can the Senate amend, suspend, or supplement its rules?

Like any Senate rules, the Senate Impeachment Rules can be amended. A motion to amend them is debatable, subject to the legislative filibuster, and therefore, in the current Senate, would require at least 67 votes (unless there was unanimous consent or the majority invokes the so-called “nuclear option” to do away with the legislative filibuster altogether). For example, the Senate unanimously adopted a set of modifications to the Senate Impeachment Rules at the beginning of the trial relating to the impeachment of President Clinton. A motion “to suspend, modify, or amend any rule, or any part thereof,” is not in order without “one day’s notice in writing, specifying precisely the rule or part proposed to be suspended, modified, or amended, and the purpose thereof.” Standing Rule V.1. In addition, “[a]ny rule may be suspended without notice by the unanimous consent of the Senate, except as otherwise provided by the rules.” Id. Unanimous consent is an ordinary feature of Senate procedure and was employed frequently during the impeachment trial of President Clinton.

Must the Senate hold a trial on articles of impeachment adopted by the House, and if so, when?

The Senate Impeachment Rules require the Senate to hold a trial on articles of impeachment adopted by the House. The Senate trial must commence no later than 1 pm on the day after the articles of impeachment have been presented to the Senate, and the Senate must “continue in session from day to day (Sundays excepted) after the trial shall commence (unless otherwise ordered by the Senate) until final judgment shall be rendered, and so much longer as may, in its judgment, be needful.” (Rule 3.)

Can the Senate limit which articles are part of the trial?

The Senate Impeachment Rules require the Senate to consider all articles of impeachment adopted by the House. (Rule 1.) The Senate Impeachment Rules also provide that “[o]nce voting has commenced on an article of impeachment, voting shall be continued until voting has been completed on all articles of impeachment unless the Senate adjourns for a period not to exceed one day or adjourns sine die.” (Rule 23.) The rules also provide that “if the person impeached shall be convicted upon any such article by the votes of two-thirds of the Members present, the Senate shall proceed to the consideration of such other matters as may be determined to be appropriate prior to pronouncing judgment.” (Rule 23)(emphasis added). These other matters would include, for example, whether, in addition to removing the convicted person from office, the person should be barred from holding federal office in the future. (U.S. Const., Art. 1, Section 3; see also Report on Impeachment Procedure at 96-97.)

Who participates in the trial and how is it structured?

The House of Representatives, having voted on articles of impeachment, appoints impeachment managers to transmit the articles to the Senate. (In the Clinton impeachment trial, the House appointed thirteen impeachment managers.) In order to begin consideration of the articles impeaching a president, the current Presiding Officer vacates the chair, officially transferring power as Presiding Officer to the Chief Justice of the Supreme Court. The President can appear personally or can be represented by counsel. (Rule 10.) The Senate Impeachment Rules provide for opening arguments, the presentation of evidence, and then closing arguments, followed by voting. (Rule 17, Rule 22.) The modifications to the Senate Impeachment Rules adopted for the Clinton impeachment trial specified times and dates for arguments on initial motions, then adopted limitations on the presentations from the House and the defense: each would have a maximum of 24 hours (in other words, three days) to make its case, and each would be limited to arguing from the record received from the House, so no additional evidence was introduced, and no witnesses testified. The modifications then provided that Senators collectively would have a maximum of 16 hours to question the parties. The modifications to the rules provided that only after this period of Senators questioning the parties would a motion to dismiss be in order, and if one was made and it failed, the Senate could then seek and hear additional evidence including from subpoenaed witnesses, move to deliberations and ultimately, a vote.

Is the trial open to the public?

The Senate Impeachment Rules provide that the trial should be open to the public, except if the Senate decides to close them during deliberations. (Rule 20.) However, the rules also provide an expedited process for voting to close the doors. (Rule 20.) 7 What power does the Senate have to compel the appearance of witnesses, including for deposition? The Senate Impeachment Rules provide that the Senate can make any “lawful order[]” that “it may deem essential or conducive to the ends of justice”, including compelling testimony, punishing contempt, and others. (Rule 6.) The Sergeant at Arms of the Senate is authorized to enforce the orders. (Rule 6.) For example, prior to the Clinton impeachment trial, the Senate voted to authorize subpoenas for deposition testimony from three fact witnesses.

Who presides over the trial, and how are disputes about the application of rules resolved?

The Chief Justice of the United States Supreme Court presides over the trial. (U.S. Const., Art. 1, Section 3.) In particular, the Presiding Officer is expected to rule on questions of evidence “including, but not limited to, questions of relevancy, materiality, and redundancy.” (Rule 7). Because the Chief Justice is acting as the “Presiding Officer” of the Senate in these circumstances, not as a judge or justice in a court of law, his decisions are subject to being overruled by the Senate itself. (Rule 7.) Only a Senator—not a Manager or a representative of the President—may appeal the decision of a presiding officer. (Report on Impeachment Procedure at 35-36.)

What evidentiary rules govern impeachment trials?

The answer is unclear. Neither the Senate rules nor precedent lay out clear standards for what evidence is relevant and permissible. While the Senate Impeachment Rules imply that there may be questions of “relevancy, materiality, and redundancy” (Rule 7) regarding evidentiary submissions, there is not a particularly strong case that the Senate should adopt the evidentiary practices of a court of law. An impeachment trial is a unique feature of our constitutional structure and requires different considerations from a criminal or civil trial. Most critically, the Senate serves as both the judge and the jury: it gets to decide what evidence is in order and how to weigh that evidence when deciding whether a president has committed an impeachable offense, whether to remove him, and whether to disqualify him from future office. Additionally, the Federal Rules of Evidence, “apply to proceedings in United States courts” but omit impeachment trials. (Rule 101.) During the impeachment of President Johnson, the Senate decided that it sat for impeachment trials as the Senate and not as a court. (Hinds’ Precedents, at § 2057). The Senate also considered but did not adopt a motion to entertain “all evidence offered on either side not trivial or obviously irrelevant . . . be received without objection.” (Hinds’ Precedents, at § 2219.)

Can the Senate modify or dismiss an article of impeachment?

The Senate Impeachment Rules do not provide any mechanism for modifying or dismissing an article of impeachment, and in fact they explicitly state that an article may not be divided for purposes of the impeachment vote. (Rule 23.) Prior to the implementation of Rule 23, the Senate had, on occasion, allowed dismissal of impeachment articles for some judges. The modifications adopted for the Clinton impeachment trial provided the ability for any Senator to move to dismiss the articles only after the opening arguments by the House managers and the President, and a period of time for Senators to question each side. For a more detailed discussion of this process, see the appendix at the end of this document.

How do Senators deliberate and reach a verdict?

The Senate Impeachment Rules provide that during deliberations, “no member shall speak more than once on one question, and for not more than ten minutes on an interlocutory question, and for not more than fifteen minutes on the final question, unless by consent of the Senate, to be had without debate….” (Rule 24.) The rules clarify that the fifteen minutes each Senator may take is to address the verdict on all the articles. The Senate Impeachment Rules also set a threshold to require a roll call vote to end the deliberations: “a motion to adjourn may be decided without the yeas and nays, unless they be demanded by one-fifth of the members present.” (Rule 24.) The Senate Impeachment Rules provide that, when voting, the Chief Justice will conduct a roll call vote, reading each article and then calling the name of each Senator, who will vote either guilty or not guilty. (Rule 23.)

What responsibilities does a Senator have at an impeachment trial?

The Constitution provides that when Senators are sitting in an impeachment trial, “they shall be on Oath or Affirmation.” (Article I, Section 3.) The Senate Impeachment Rules provide that the Chief Justice and the Senators each must take an oath to “do impartial justice according to the Constitution and laws.” (Rule 25) (emphasis added). This differs from the oath Senators take before they undertake their legislative duties, in which they promise to “support and defend” the U.S. Constitution and to “bear true faith and allegiance” to it. The separate oath emphasizes the independent role of a Senator in an impeachment trial: the question is not whether to support the President. The question is whether the President has engaged in impeachable conduct that warrants removal from office, and a Senator’s duty is to make that decision in good faith irrespective of party.

Can a Senator be made to recuse from an impeachment trial?

Whether the Constitution allows the Senate to force a Senator to recuse remains an open question of constitutional interpretation. Because the Senate Impeachment Rules provide that Senators each must take an oath to “do impartial justice according to the Constitution and laws,” (Rule 25) an argument has been made that the Senate can force a Senator to recuse if they cannot “do impartial justice.” However, during the trial of President Johnson, when a potentially conflicted Senator was asked to recuse, the body debated whether it was his “constitutional right” as a member of the Senate to sit in impeachment (citing Article I Sec. 3). The Senator was ultimately allowed to vote in the trial. (Report on Impeachment Procedure at 76-77) During the trial of Judge Pickering, a resolution was introduced to disqualify three Senators from “sit[ting] and act[ing]” on impeachment because they had previously been members of the House and had voted on the articles of impeachment. (Hinds’ Precedents at § 2327). The Senate did not adopt the resolution and the three Senators voted in the trial. (Report on Impeachment Procedure at 76)

On at least 30 occasions, a Senator has voluntarily recused from an impeachment trial. For example, Senators Overton and Lonergan recused from the impeachment of Judge Louderback in 1933 because they had been members of the House during the impeachment. Numerous others have not participated in other trials for other reasons. In each of these cases the Senate has allowed the recusal without dissent. (Report on Impeachment Procedure at 77-78).

What standard must be met for conviction? (i.e., What should each Senator be asking her/himself?)

The Constitution provides that the president (like the vice president and other civil officers) “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” The Senate Impeachment Rules provide that the “final question [is] whether the impeachment is sustained,” and “if the person impeached shall be convicted upon any . . . article by the votes of two-thirds of the Members present, the Senate shall proceed to the consideration of such other matters as may be determined to be appropriate prior to pronouncing judgment.” (Rule 23.) Each Senator will vote either guilty or not guilty. (Rule 23.) The question before a Senator is not, therefore, whether the president should or should not be removed from office; the Constitution provides that a president shall be removed if a sufficient number of Senators conclude that he has committed treason, bribery, or other high crimes and misdemeanors within the meaning of the Constitution. Neither the Constitution nor the Senate rules specify how a Senator should determine whether the President has committed an impeachable offense.

Additional Resources

House Proceedings
H.Res. 660: House Resolution setting impeachment procedures
House Judiciary Impeachment Procedures
H. Res. 755: Impeachment Resolution
House Judiciary Committee Report Accompanying H. Res. 755

Senate Proceedings
CREW & Public Citizen: Senate Impeachment Trial Procedures
Dec. 15 Letter from Sen. Schumer to Sen. McConnell re: impeachment procedures
Congressional Research Service: Compendium of Precedents Involving Evidentiary Rulings and Applications of Evidentiary Principles from Selected Impeachment Trials (Jan. 29, 1999)
The Senate Must Conduct an Impeachment Trial That Is Serious and Fair

Other Issues
House Judiciary Committee: Constitutional Grounds for Presidential Impeachment hearing; majority staff report
Protect Democracy: 

CREW:

Just Security: Impeachment Public Document Clearinghouse