Impeachment

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This article is about the political concept of impeachment; for the concept of casting doubt on the testimony of a witness at trial, see Witness impeachment.
Depiction of the impeachment trial of Andrew Johnson, then President of the United States, in 1868.
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Depiction of the impeachment trial of Andrew Johnson, then President of the United States, in 1868.

Impeachment is the process by which a legislative body formally levels charges against a high official of government. Impeachment does not necessarily mean removal from office; it comprises only a formal statement of charges, akin to an indictment in criminal law, and thus is only the first step towards possible removal. Once an individual is impeached, he or she must then face the possibility of conviction via legislative vote, which then entails the removal of the individual from office.

Conviction of officials involves an overturning of the normal constitutional procedures by which individuals achieve high office (election, ratification or appointment) and because it generally requires a supermajority, typically only those deemed to have seriously abused their offices will suffer impeachment.

One tradition of impeachment has its origins in the law of England and Wales, where the procedure last took place in 1806. Impeachment exists under constitutional law in many nations around the world, including the United States, Brazil, Russia, the Philippines and the Republic of Ireland.

Etymologically, the word "impeachment" derives from Latin roots expressing the idea of becoming caught or entrapped, and has analogues in the modern French verb empêcher (to prevent) and the modern English impede. Mediaeval popular etymology also associated it (wrongly) with derivations from the Latin impetere (to attack). Impeachment of a witness means challenging his or her honesty or credibility.

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United Kingdom

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Procedure

In the United Kingdom, the House of Commons holds the power of impeachment. Any member may make accusations of high treason or high crimes and misdemeanours. The member must support the charges with evidence and move for impeachment. If the Commons carries the motion, the mover receives orders to go to the bar at the House of Lords and to impeach the accused "in the name of the House of Commons, and all the commons of the United Kingdom."

The mover must tell the Lords that the House of Commons will, in due time, exhibit particular articles against the accused, and make good the same. The Commons then usually selects a committee to draw up the charges and create an "Article of Impeachment" for each. (In the case of Warren Hastings, however, the drawing up of the articles preceded the formal impeachment.) Once the committee has delivered the articles to the Lords, replies go between the accused and the Commons via the Lords. If the Commons have impeached a peer, the Lords take custody of the accused, otherwise custody goes to Black Rod. The accused remains in custody unless the Lords allow bail. The Lords set a date for the trial while the Commons appoints managers, who act as prosecutors in the trial. The accused may defend by counsel.

The House of Lords hears the case, with the Lord Chancellor presiding (or the Lord High Steward if the impeachment relates to a peer accused of high treason.) The hearing resembles an ordinary trial: both sides may call witnesses and present evidence. At the end of the hearing the Lord Chancellor puts the question on the first article to each member in order of seniority, commencing with the most junior peer, and ending with himself, and after all have voted, proceeds to deal with any remaining articles similarly. Upon being called, a Lord must rise and declare upon his honour, "Guilty" or "Not Guilty". After voting on all of the articles has taken place, and if the Lords find the defendant guilty, the Commons may move for judgment; the Lords may not declare the punishment until the Commons have so moved. The Lords may then provide whatever punishment they find fit, within the law. A Royal Pardon cannot excuse the defendant from trial, but a Pardon may reprieve a convicted defendant.

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History

Parliament has held the power of impeachment since mediæval times. Originally, the House of Lords held that impeachment could only apply to members of the peerage (nobles), as the nobility (the Lords) would try their own peers, while commoners ought to try their peers (other commoners) in a jury. However, in 1681, the Commons declared that they had the right to impeach whomsoever they pleased, and the Lords have respected this resolution.

After the reign of Edward IV, impeachment fell into disuse, the bill of attainder becoming the preferred form of dealing with undesirable subjects of the Crown. However, during the reign of James I and thereafter, impeachments became more popular, as they did not require the assent of the Crown, while bills of attainder did, thus allowing Parliament to resist royal attempts to dominate Parliament. The most recent cases of impeachment dealt with Warren Hastings, Governor-General of India between 1773 and 1786 (impeached in 1788; the Lords found him not guilty in 1795), and Henry Dundas, 1st Viscount Melville, First Lord of the Admiralty, in 1806 (acquitted). The last attempted impeachment occurred in 1848, when David Urquhart accused Viscount Palmerston of having signed a secret treaty with Imperial Russia and of receiving monies from the Tsar. Palmerston survived the vote in the Commons; the Lords did not hear the case.

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Impeachment in modern politics

The procedure has, over time, become rarely used and some legal authorities (such as Halsbury's Laws of England) consider it to be probably obsolete. The principles of "responsible government" require that the Prime Minister and other executive officers answer to Parliament, rather than to the Sovereign. Thus the Commons can remove such an officer without a long, drawn-out impeachment. However, it is argued by some that the remedy of impeachment remains as part of British constitutional law, and that legislation would be required to abolish it.

In April 1977 the Young Liberals' annual conference unanimously passed a motion to call on the Liberal leader (David Steel) to move for the impeachment of Ronald King Murray QC, the Lord Advocate. Mr. Steel did not call the motion but Murray (now Lord Murray, a former Senator of the College of Justice of Scotland) agrees that the Commons still have the right to initiate an impeachment motion. On 25 August 2004, Plaid Cymru MP Adam Price announced his intention to move for the impeachment of Tony Blair for his role in involving Britain in the 2003 invasion of Iraq. In response Peter Hain, the Commons Leader, insisted that impeachment was obsolete, given modern government's responsibility to parliament. Ironically, Peter Hain had served as president of the Young Liberals when they called for the impeachment of Mr. Murray in 1977.

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United States

Main article Impeachment in the United States

In the United States impeachment can occur both at the federal and state level. At the federal level, both the Executive branch and the Judiciary may be impeached, though different standards apply. For the Executive branch, only those who have allegedly committed "treason, bribery, or other high crimes and misdemeanors" may be impeached. Although treason and bribery are obvious, the Constitution is silent on what constitutes a "high crime." Several commentators have suggested that Congress alone may decide for itself what constitutes an impeachable offense.

The standard for impeachment among the judiciary is much broader. Article III of the Constitution states that judges remain in office "during good behavior," implying that Congress may remove a judge for bad behavior.

Members of Congress themselves, however, are not subject to impeachment. However, the respective Houses of Congress have the authority to discipline their own members. This includes the authority to expel members.

Procedurally, it is a two-step process. The House of Representatives must first pass "articles of impeachment" by a simple majority. The articles of impeachment constitute the formal allegations. Upon passage, the defendant has been "impeached."

Next, the Senate tries the accused. In the case of the impeachment of a President, the Chief Justice of the United States presides over the proceedings. Otherwise, the Vice President, in his capacity of President of the Senate, or the President pro tempore of the Senate presides. This would include the impeachment of the Vice President him- or herself. In order to convict the accused, a two-thirds majority of the Senators present is required.

Following conviction, the Senate may vote to punish the individual only by removing him from office, or by barring him from holding future office, or both. Alternatively, it may impose no punishment. However in the case of executive officers, removal follows automatically upon conviction. The defendant remains liable to criminal prosecution. It is possible to impeach someone even after the accused has vacated his office in order to disqualify the person from such emoluments of office as a pension.

Congress regards impeachment as a power to be used only in extreme cases; the House has initiated impeachment proceedings just 62 times since 1789 and only 16 federal officers have been impeached:

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Republic of Ireland

In the Republic of Ireland formal impeachment can apply only to the President. Article 12 of the Constitution of Ireland provides that, unless judged to be "permanently incapacitated" by the Supreme Court, the president can only be removed from office by the houses of the Oireachtas (parliament) and only for the commission of "stated misbehaviour". Either house of the Oireachtas may impeach the president, but only by a resolution approved by a majority of at least two-thirds of its total number of members; and a house may not consider a proposal for impeachment unless requested to do so by at least thirty of its number.

Where one house impeaches the president, the remaining house either investigates the charge or commissions another body or committee to do so. The investigating house can remove the president if it decides, by at least a two-thirds majority of its members, both that she is guilty of the charge of which she stands accused, and that the charge is sufficiently serious as to warrant her removal. To date no impeachment of an Irish president has ever taken place. The president holds a largely ceremonial office, the dignity of which is considered important, so it is likely that a president would resign from office long before undergoing formal conviction or impeachment.

The Republic's constitution and law also provide that only a joint resolution of both houses of the Oireachtas may remove a judge. Although often referred to as the 'impeachment' of a judge, this procedure does not technically involve impeachment.

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Other jurisdictions

  • Brazil: The President of Federative Republic of Brazil can be impeached. This happened to Fernando Collor de Mello, due to evidences of bribery and misappropriation.
  • Germany: The Federal President of Germany can be impeached by the Bundestag for willfully violating German law. Once the Bundestag impeaches the president, the Federal Constitutional Court decides whether to remove him or her from office. No such case has yet occurred.
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