Impeachment: Not often, but not never

Impeachment, while unusual, is not as rare as we might think. What can we learn if we look at impeachments of officials other than Presidents in US history?

Much of the discussion around impeachment and removal has focused on two things: the two previous successful impeachments of Presidents (Andrew Johnson in 1868 and Bill Clinton in 1998) and Richard Nixon’s near miss in 1974 and the murky nature of the framers’ intentions about impeachment and removal. The latest public debate focuses on Donald Trump’s legal team’s insistence that his late 2019 impeachment was “constitutionally invalid.”

These debates underline the fact that impeachment of a President has been a highly unusual event in American history. Presidents other than Johnson, Nixon, and Clinton have been highly unpopular (George H.W. Bush’s approval rating on election day in 1992 was 32.6%, Gerald Ford’s in 1976 was 37.9%, and Harry Truman’s was 39.6% in 1948).  Others were embroiled in corruption (like Warren Harding), or ineffective in responding to or even implicated in causing economic turmoil (Benjamin Harrison and Herbert Hoover).  Some were even responsible for inflaming national divisions that would eventually tear the nation apart (Millard Fillmore, Franklin Pierce, and the topper of many scholars’ lists of worst Presidents, James Buchanan). Yet none faced impeachment, much less removal, underlining the exceptional nature of impeachment as a remedy.

But is impeachment truly exceptional? Noah Bookbinder, executive director of Citizens for Responsibility and Ethics in Washington, has noted that we might look beyond the sparse evidence provided by the founding debates and the three prior presidential inquiries for information and precedents. The House has impeached seventeen individuals in addition to the three Presidents. Fifteen were federal judges. The very first impeachment, of Senator William Blount of Tennessee in 1797, resulted in his expulsion by the Senate rather than a trial (the Senate voted that impeachment was not an appropriate process for handling a congressional miscreant).

Early American Impeachments and Removals

Between 1803 and 1862, the House impeached three district court judges and Samuel Chase, an Associate Justice of the US Supreme Court. The first, John Pickering, was a Federalist. After his appointment by George Washington, he appeared to go into cognitive decline to the point that another judge had to take over his duties. The articles of impeachment against him cited his drunkenness and blasphemy while on the bench, and the Senate allowed evidence of his conduct to be presented at his trial. He was convicted and removed.

Congressional Republicans, heartened by this victory, next went after staunch Federalist Samuel Chase, then an Associate Justice of the Supreme Court, impeaching him for “arbitrary and oppressive conduct of trials.” In a precedent-defining moment, the Senate declined to remove him, leading many commentators to see this as a limit on the use of impeachment and removal as political tools to be used for partisan purposes. Judge James Peck was impeached in 1830 for his vicious use of the judicial contempt power against an attorney who had published an article critical of him, but the Senate opted not to remove him. The final impeachment of this era, however, did lead to removal in 1862, when Judge West Humphreys refused to resign as a federal judge after being appointed to the Confederate bench.

Middle Republic Impeachments

While not frequently used, the House continued to rely on impeachment as a disciplinary tool in the years between the end of the Civil War and the late New Deal era. Six of the seven impeachments in this period involved judges, five of whom were district court judges, and a sixth, Robert Archibald, was a Commerce Court judge impeached in 1912. In 1876, the House impeached William Belknap, who served as the Secretary of War in Ulysses Grant’s administration. Belknap, a former Iowa legislator and Civil War general, raised eyebrows with his lavish lifestyle and opulent parties. A House committee found that the Secretary had received thousands of dollars through corruption in the operation of a military trading post in Indian territory. While Belknap dramatically and tearfully resigned just before the House vote, the Representatives continued on, impeaching him on five articles. The Senate voted to allow a trial despite Belknap’s resignation and heard more than 40 witnesses, but ultimately only a majority, and not the needed two-thirds, voted against him. Belknap was never criminally charged for his misdeeds.

In the cases involving judges, two – Robert Archbald in 1912-1913, impeached for using his office for private gain, and Halsted Ritter in 1936 – were removed from office. Two, Mark Delahay, impeached in 1873 for intoxication on the bench, and George English, impeached in 1926 for abuse of power, resigned after impeachment and neither was tried in the Senate. Charles Swayne (1904) and Harold Louderback (1933) were both impeached but acquitted by the Senate.

The impeachment and trial of Halsted Ritter took place in the highly partisan environment of the mid-1930s, and some believed he was targeted because he was a Republican judge opposed to New Deal policies. The articles against him alleged that he indulged in favoritism, used his office for personal gain, and engaged in tax evasion. The Senate acquitted him on the first six specific articles, convicting him by a one-vote margin on the seventh, which merely summarized the previous six. The votes at all stages were divided on partisan grounds, but a handful of Republicans “predominantly made up of men who in the past had not infrequently refused to vote according to party affiliations” (pp. 200-201) cast the decisive votes that removed him. Ritter challenged his removal in the Federal Court of Claims, which denied jurisdiction, explaining that the Senate had the exclusive authority to try impeachments.

More Recent Impeachments

Between 1986 and now, in addition to the impeachments of Presidents Clinton and Trump, five federal judges have been impeached, resulting in four removals and one resignation. Harry Claiborne was impeached and removed in 1986 after being convicted of tax evasion in 1984. Alcee Hastings was impeached in 1988 and seventeen articles were sent to the Senate for consideration. The Senate voted to convict on eight in 1989, but the irrepressible Hastings soon ran for Congress, winning his first term in 1992 and achieving reelection 13 times, enabling him to cast his votes against Clinton’s impeachment and for Trump’s. Walter Nixon was impeached and removed shortly after Hastings; proceedings against him reflected a 1986 criminal conviction for perjury. Nixon attempted to challenge his conviction in court based on the Senate’s having heard evidence against him only in committee rather than as a full body, but the Supreme Court ruled his claim to be nonjusticiable.

Samuel Kent has the dubious distinction of being the first sitting federal judge to face formal legal proceedings concerning allegations of sexual abuse. Representative Adam Schiff (D-Cal) served as an impeachment manager in the case. Kent resigned prior to the end of the Senate trial, and a House resolution ended the proceedings. Finally, in 2010, G. Thomas Porteous was found guilty, removed from office, and disqualified from holding future office. The four articles against him charged him with accepting bribes and lying to the Senate during his confirmation hearings. All 96 Senators in the chamber voted against him on the first charge, and the vote was 94-2 to bar him from future federal office.

What Can We Learn from History?

First, as this summary illustrates, impeachment, while not common, is not an outlandish and almost never used process. Over the years, the process has become more structured and institutionalized, as we see now with the Trump impeachment and trial. But the process is not arcane and completely unfamiliar to all but a small handful of members of Congress – Judge Porteous’s impeachment and removal took place less than a decade ago, and all but one of the impeachment managers for Kent’s and Porteous’s impeachments (Adam Schiff, Zoe Lofgren, Hank Johnson, Robert Goodlatte, and Jim Sensenbrenner, Jr.) are still members of Congress.

It is also interesting to note the variety of wrongs that have generated impeachments and removals. While some clearly have criminal content (Claiborne, Hastings, and Porteous faced criminal charges), other impeachments have focused on wrongs that never received attention from the criminal justice system. Some officials were impeached for using their offices for personal gain and others for abuses of power. The wide variety among articles of impeachment illustrates that the House has not always found it necessary to allege specific criminal conduct against an official.

Another observation is that, while judges have been most frequently identified as targets for impeachment, neither the House nor the Senate has suggested that impeaching and trying judges should be a different process. The Constitution establishes no differences, and neither house has seemed inclined to read any into the text. It would seem that the use of impeachment against judges may simply be an artifact of their lifetime appointments. Public and political pressures may be exerted against Presidents to jettison miscreant cabinet officials prior to impeachment, and Presidents themselves must stand for reelection and since the ratification of the 22nd Amendment, they are term limited.

Courts have consistently refused to intervene in the mechanics of impeachment or removal, leaving these processes and their outcomes to Congress. While a few bold commentators have advocated for judicial review, this is not going to happen.

Ultimately, when watching the Senate trial unfold, we should be wary of thinking about it as completely exceptional, as requiring comparison to only two previous events in American history, or as necessitating a deep dive into the records of the constitutional convention as our only conceivable guidelines. While impeachment and trial in the Senate are unusual events, they are not unprecedented. The House has significant experience in deciding what kinds of activities public officials can commit that constitute high crimes and misdemeanors. And hopefully the Senate will follow its longstanding practice of taking the House’s work seriously.

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