Impeachment questions, answered
This page collects resources and provides concise answers to frequently asked questions regarding impeachment. Information on relevant procedures, precedent, and laws will be posted on a rolling basis as issues emerge.
Timing for Impeachment
May a President be impeached after the end of his term of office?
Yes. There is precedent for doing so, but the House and Senate have the power to determine whether they have jurisdiction to impeach. The House impeached Secretary of War William Belknap after his resignation and the Senate expressly rejected the claim that it lacked jurisdiction to conduct an impeachment trial of an officer who had already resigned.
In addition, the Constitution provides that the Senate may impose an additional penalty besides removal from office: the disqualification of an officer from holding future office. (Art. 1, sec 3). The fact that the Constitution provides for a form of punishment beyond removal from office suggests that the House and Senate should be able to assert jurisdiction to impeach and convict former officers.
Consequences of Impeachment
What consequences does an officer face if he or she is convicted on articles of impeachment?
Conviction on any article of impeachment results in an officer’s removal from office. The Senate may, by majority vote, impose an additional punishment if it so chooses: disqualification from holding “any office of honor, trust or profit under the United States.” (Art. I, sec 3). The Senate has only imposed this punishment three times in its history, though it should be said that conviction and removal from office was sufficient to end the public careers of other individuals who were impeached.
The Constitution specifically provides that conviction shall have no bearing on separate criminal proceedings: “a party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.” (Art. I, sec 3).
A president who is removed from office after conviction on articles of impeachment may lose benefits provided to former presidents under the Former Presidents Act. It is not clear whether these benefits would be forfeited by a president who was convicted on articles of impeachment after leaving office; however, Congress could in theory amend the Former Presidents Act to prevent ex-presidents from receiving benefits if they are convicted on any article of impeachment.
Basis for Impeachment
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 is the basis for the current impeachment of President Trump?
Since losing the 2020 presidential election in November, President Trump has engaged in a pattern of conduct designed to cast doubt on the result of the election and undermine confidence in the institutions of American democracy. This pattern of conduct culminated, on January 6, 2021, when a mob that assembled in support of the President’s baseless claims of election fraud, violently stormed the Capitol at President Trump’s behest in order to stop Congress’s counting and certification of the electoral votes as required by the Twelfth Amendment.
Members of the House of Representatives introduced a single article of impeachment on Monday, January 11, 2021, charging President Trump with the high crime of “inciting an insurrection.” The article explicitly refers to the President’s actions prior to the assault on the Capitol as part of the reason for his impeachment: President Trump’s pattern of conduct since the election, including his January 2, 2021 call to Georgia Secretary of State Brad Raffensperger demanding he “find” enough votes to overturn the election in Georgia, “gravely imperiled the security of the United States … threatened the integrity of the democratic system, interfered with the peaceful transfer of power, and imperiled a coequal branch of government.”
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, but they may also be introduced by members on the House floor. Impeachment resolutions are privileged, which means that they supersede other House business and can be brought to a vote expeditiously. While previous impeachments have included months of investigation and detailed hearings, those steps are unnecessary in circumstances where the material facts at issue are not contested–or when the officer presents an imminent danger to the nation necessitating immediate removal.
What happens after the House votes?
The Senate would then hold a trial, with House lawmakers serving as the prosecutors. 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.
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, although this may not be necessary in the trial of a former president. 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 impeachment trials of a president (U.S. Const., Art. 1, Section 3.); however, it is unclear who will preside over the impeachment trial of a former president. 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). If the Chief Justice is acting as the “Presiding Officer” of the Senate, his decisions are subject to being overruled by the Senate. (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 presiding officer 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 presiding officer 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.
- CREW files criminal complaint against Trump over Georgia call, January 4, 2021
- Trump is an enemy of democracy and his Capitol enablers are co-conspirators, Noah Bookbinder, USA Today, Jan. 7, 2021
- We’re asking, again, will the president be prosecuted?, The Take, January 11, 2021
- CREW files criminal sedition complaint against Trump, January 11, 2021
- Article of Impeachment
- Just Security timeline of events leading up to the assault on the Capitol
- House Judiciary Committee Staff Report
- Seung Min Kim, McConnell memo outlines how Senate would conduct second trial for Trump if House impeaches, Washington Post, Jan. 8, 2021
- CREW & Public Citizen: Senate Impeachment Trial 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