Article 1, Section 3, Clause 6: Trials of Impeachment

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

We have argued that the Senate is the checking branch of the federal government. Whereas the House is the great nuclear pile at the heart of democratic governance, the Senate is the system of control rods that checks those potentially destructive democratic energies. And one of the checking functions explicitly given to the Senate in the Constitution is the power to try all impeachments.

The Framers understood that the power of impeachment and removal would be a political process, invoked for political crimes. However, it is not solely a political process. Impeachment by the House, analogous to indictment by a grant jury, is an explicitly political act that triggers a quasi-judicial process. Impeachment is not that process itself.

Lawyers love to say that a sufficiently skilled prosecutor can get a grand jury to indict a ham sandwich. Based on what we find in The Federalist, it seems that the Framers feared the same would be true of the House with regards to the power of impeachment. It was certainly the case that the Founders feared the rise of a tyrant who would threaten the rights of the people. This was the reason for investing the House with a power of impeachment in the first place. They also feared that this tyrant would prove to be a demagogue, capable of mustering a strong support in the popularly-elected House. Hence, they required no more than a bare majority for the House to pass articles of impeachment.

But the Framers feared the tyranny of the mob as much, if not more, than the tyranny of the would-be monarch. Both of them were examples of what John Adams described and condemned as simple government. In Federalist 65, Hamilton explicitly describes the House as “the inquisitors for the nation”.  He points out that the House’s vote to impeach creates the assumption that public opinion is against the official who has been impeached. The House is not impartial in delivering articles of impeachment; it is the accuser, on behalf of the people.

It then falls to the Senate to impartially try the impeachment. Hamilton wrote: “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?” Hamilton uses the language of the courtroom throughout his discussion of a Senate trial. In his view, once the House delivers articles of impeachment to the Senate, the political aspects of the process are over.

Turning to the substance of the clause: There are three requirements specified for a Senate trial. The first is that the senators are placed under oath or affirmation to render impartial judgement, meaning, among other things, that they are not to factor popular opinion into their verdict. That has already played its part, in the original articles of impeachment returned by the House. The senators are now to impartially determine, first, whether the accused actually committed the acts for which he is accused; and, second, whether those acts warrant removal from office and possible permanent disqualification from future office, the only two judgments the Senate is empowered to make. (We will examine these more closely presently.) The purpose of the oath is to make clear that the role of the senators is explicitly nonpolitical. Since what they are trying is a political crime, their proceedings are properly referred to as quasi-judicial rather than judicial. But it is nonpolitical nonetheless.

It follows that a Senator who bases his judgment in a trial of impeachment on how it will affect his reelection prospects has violated a solemn oath to God. We fear that most Americans today, including their leaders, do not properly fear an oath.

When a man takes an oath, Meg, he’s holding his own self in his own hands. Like water (he cups his hands) and if he opens his fingers then, he needn’t hope to find himself again.

— Robert Bolt, A Man For All Seasons

The second element of the clause is that, if the President of the United States is the official being tried, the Chief Justice of the Supreme Court presides. Since the Vice President would succeed a President removed from office, there is an obvious conflict of interest in having the Vice President preside over such a Senate trial, though he may preside over any other Senate trial. (It is not mandatory that the Vice-President preside; since he has no vote in an impeachment proceeding, where a tie vote is impossible, he need not even attend.)

Two important recent precedents have been set with the second Senate trial of Donald Trump. The first is that the Senate may try a person who was impeached while in office but has since left office. We will consider this in greater depth presently. The second is that the Chief Justice need not preside over a Senate trial of a former President, since the Vice President does not then have the conflict of interest. This precedent was established by Justice John Roberts when he declined to preside over the second Senate Trump trial, and we believe this precedent is reasonable. We do not believe Roberts’ decision should be interpreted as a ruling on the legitimacy of the trial generally. That would be out of character for Roberts, who has shown a regrettable tendency to avoid hard choices.

The third element of the clause is that conviction requires a two-thirds majority. This precludes the possibility of a tie vote to be decided by the Vice President. It also requires a consensus among the Senators that the accused is guilty. This is also in keeping with the idea that the Senate stands between the accused and his accusers in the House.

There is another interesting aspect to all this. The House plays a role in choosing the President only if the Electoral College fails to do so, which has not happened in almost two centuries. The House has no role in choosing other officials of the executive branch. That role is confined to the Senate, who are empowered to advise the President on appointments and may refuse their consent to such appointments. Thus, a Senate trial is always of an official in whom the House is not invested; and, with the exception of the President and Vice President, it is an official in whom the Senate is invested.

It seems clear that the Framers desired to protect public officials who made unpopular decisions from democratic mobs. Officials who faithfully and impartially carry out their duties in accordance with law will almost inevitably act against public opinion from time to time. The process for impeachment and trial are deliberately designed to protect such officials.

How well has the Framer’s design actually worked out in practice?

Not well, in our view.  We believe that the system has become too protective of the accused. Though any executive branch official may be impeached and removed, Congress’ power to do so is obviously most important in the case of the President. The system has worked as intended exactly once: Nixon resigned from office rather than face almost certain impeachment and removal, for actions that certainly warranted it. But there have been four other Senate trials of a President, and all resulted in acquittals. In our view, all should have resulted in convictions, except possibly the trial of Andrew Johnson, which we would want to examine in much greater depth before offering a firm opinion. And there are, in our view, several other Presidents who merited removal from office but were never impeached, including at least two Presidents whom we are otherwise inclined to think highly of. (Were impeachment and removal a more realistic threat, we believe these Presidents would have acted more circumspectly, and been spared from committing significant blunders.)

Part of the difficulty is the vagueness of the criteria for removal. The only offenses specifically mentioned are bribery and treason, for which no President has been impeached.  We will consider this in greater depth in due course.