Article 1, Section 2, Clause 5 — Impeachment Doctrine
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Commentary
Article I, Section 2, Clause 5:
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
While legal doctrine developed from judicial opinions informs much of constitutional law, the understood meaning of the Constitution’s provisions is also shaped by institutional practices and political norms.[1](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-5/impeachment-doctrine#fn1art1 " See Keith Whittington, Constitutional Construction 3 (1999); II Joseph Story, Commentaries on the Constitution of the United States § 762 (1833) ( “The offences, to which the power of impeachment has been, and is ordinarily applied, as a remedy, are of a political character.” ). ") James Madison believed that the meaning of the Constitution would be “liquidated” over time or determined through a “regular course of practice.” [2](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-5/impeachment-doctrine#fn2art1 " The Federalist No. 37 (Alexander Hamilton); Letter to Spencer Roane (Sept. 2, 1819), in 8 Writings of James Madison 450 (G. Hunt ed. 1908). ") Justice Joseph Story thought this principle applied to impeachment, noting for example that the Framers understood that the meaning of “high crimes and misdemeanors” constituting impeachable offenses would develop over time, much like the common law.[3](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-5/impeachment-doctrine#fn3art1 " Story, supra note 1, at § 797; ( “[N]o previous statute is necessary to authorize an impeachment for any official misconduct.” ); id. at § 798 ( “In examining the parliamentary history of impeachments, it will be found, that many offences, not easily definable by law, and many of a purely political character, have been deemed high crimes and misdemeanours worthy of this extraordinary remedy.” ); see also Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 104–05 (2000). ") Indeed, Justice Story believed it would be impossible to precisely define the full scope of political offenses that may constitute impeachable behavior.[4](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-5/impeachment-doctrine#fn4art1 " Story, supra note 1, at § 762 ( “Not but that crimes of a strictly legal character fall within the scope of the power, (for, as we shall presently see, treason, bribery, and other high crimes and misdemeanours are expressly within it;) but that it has a more enlarged operation, and reaches, what are aptly termed, political offences, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties of political office. These are so various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law.” ); id. at § 795 ( “Again, there are many offences, purely political, which have been held to be within the reach of parliamentary impeachments, not one of which is in the slightest manner alluded to in our statute book. And, indeed, political offences are of so various and complex a character, so utterly incapable of being defined, or classified, that the task of positive legislation would be impracticable, if it were not almost absurd to attempt it.” ). ") Consequently, the historical practices of the House with regard to impeachment flesh out the meaning of the Constitution’s grant of the impeachment power to that body.
Generally speaking, the impeachment process has been initiated in the House by a Member via resolution or declaration of a charge,[5](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-5/impeachment-doctrine#fn5art1 " See 3 Asher C. Hinds, Hinds’ Precedents of the House of Representatives of the United States §§ 2342, 2400, 2469 (1907), https://www.govinfo.gov/content/pkg/GPO-HPREC-HINDS-V3/pdf/GPO-HPREC-HINDS-V3.pdf [hereinafter Hinds]; 116 Cong. Rec. 11,941–42 (1970); 119 Cong. Rec. 74,873 (1974); see also Wm. Holmes Brown et al., House Practice: A Guide to the Rules, Precedents, and Procedures of the House ch. 27 § 6 (2011), https://www.govinfo.gov/content/pkg/GPO-HPRACTICE-112/pdf/GPO-HPRACTICE-112.pdf [hereinafter House Practice]. ") although anyone—including House Members, a grand jury, or a state legislature—may request that the House investigate an individual for impeachment purposes.[6](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-5/impeachment-doctrine#fn6art1 " See Gerhardt, supra note 3, at 25; 3 Lewis Deschler, Precedents of the United States of the House of Representatives, H.R. Doc. No. 94-661, at Ch. 14 §§ 5, 5.10–5.11 (1974), https://www.govinfo.gov/content/pkg/GPO-HPREC-DESCHLERS-V3/pdf/GPO-HPREC-DESCHLERS-V3.pdf [hereinafter Deschler]. ") Indeed, in modern practice, a number of impeachments have been sparked by referrals from an external investigatory body.[7](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-5/impeachment-doctrine#fn7art1 " The Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 authorizes the Judicial Conference to forward a certification to the House that impeachment of a federal judge may be warranted. 28 U.S.C. § 355. ") Beginning in the 1980s, the Judicial Conference has referred its findings to the House recommending an impeachment investigation into a number of federal judges who were eventually impeached.[8](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-5/impeachment-doctrine#fn8art1 " See Gerhardt, supra note 3, at 176. ") Similarly, in the impeachment of President Bill Clinton, an independent counsel—a temporary prosecutor given statutory independence and charged with investigating certain misconduct when approved by a judicial body[9](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-5/impeachment-doctrine#fn9art1 " See 28 U.S.C. §§ 591–99. The statute authorizing the appointment of an independent counsel expired in 1999. Id. § 599. ") —first conducted an investigation into a variety of alleged activities on the part of the President and his associates, and then delivered a report to the House detailing conduct that the independent counsel considered potentially impeachable.[10](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-5/impeachment-doctrine#fn10art1 " See Gerhardt, supra note 3, at 176. The impeachment investigation of President Nixon also began with the referral by special prosecutor Leon Jaworski of material relating to possible impeachable conduct to the House Judiciary Committee. Gerhardt, supra note 3, at 176. ")
Regardless of the source requesting an impeachment investigation, the House has sole discretion under the Constitution to actually begin any impeachment proceedings against an individual.[11](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-5/impeachment-doctrine#fn11art1 " U.S. Const. art. I, § 2, cl. 5. ")
In practice, impeachment investigations are often handled by an already existing or specially created subcommittee of the House Judiciary Committee.[12](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-5/impeachment-doctrine#fn12art1 " See Gerhardt, supra note 3, at x–xi; see, e.g., Report of the Impeachment Trial Comm. on the Articles Against Judge G. Thomas Porteous, Jr., 111th Cong., 2d Sess., S. Rep. No.
111-347
, at 6 (2010) [hereinafter Porteous Impeachment] (describing the creation by the House Judiciary Committee of an Impeachment Task Force to investigate allegations against Judge Porteous). The investigations that ultimately led to the first impeachment of President Donald Trump were carried out by multiple House committees, including the Permanent Select Committee on Intelligence and the Committees on Financial Services, Foreign Affairs, Judiciary, Oversight and Reform, and Ways and Means. See Staff of H. Perm. Select Comm. on Intelligence, et al., 116th Cong., The Trump-Ukraine Impeachment Inquiry Report: Report for the H. Perm. Select Comm. on Intelligence Pursuant to H. Res. 660 in Consultation with the H. Comm. on Oversight and Reform and the H. Comm. on Foreign Affairs (Comm. Print 2019). The early stages of this investigation saw some controversy over whether the House must explicitly authorize the initiation of an impeachment investigation. While the House committees had previously been investigating possible misconduct by President Trump, on September 24, 2019, the Speaker of the House announced that these investigations constituted an “official impeachment inquiry.” Press Release, Nancy Pelosi, Speaker of the House, Pelosi Remarks Announcing Impeachment Inquiry (Sept. 24, 2019), https://www.speaker.gov/newsroom/92419-0 . The House, as an institution, did not take action to approve explicitly the impeachment investigation until October 31
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