Article 2, Section 4 — Judicial Impeachments

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Article II, Section 4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Congress has impeached federal judges with comparatively greater frequency in recent decades, and some of these impeachments appear to augur important consequences for the practice in the future. In particular, within three years in the 1980s the House voted to impeach three federal judges, each occurring after a criminal trial of the judge. One impeached federal judge was not barred from future office and subsequently was elected to serve in the House of Representatives, the body that earlier had impeached him.[1](https://www.law.cornell.edu/constitution-conan/article-2/section-4/judicial-impeachments#fn1art2 " See H. Res. 499, 105th Cong. (1988); H.R. Rep. No.

, 105th Cong. 8 (1988). ")

100-810

, 105th Cong. 8 (1988). Another judge challenged the adequacy of his impeachment trial in a case that ultimately reached the Supreme Court, which ruled that the case was non-justiciable.[2](https://www.law.cornell.edu/constitution-conan/article-2/section-4/judicial-impeachments#fn2art2 " Nixon v. United States, 506 U.S. 224, 237–38 (1993). ")

The House of Representatives impeached federal district judge Harry E. Claiborne in 1986, following his criminal conviction and subsequent imprisonment for providing false statements on his tax returns.[3](https://www.law.cornell.edu/constitution-conan/article-2/section-4/judicial-impeachments#fn3art2 " United States v. Claiborne, 727 F.2d 842 (9th Cir. 1984). ") Despite his incarceration, Judge Claiborne did not resign his seat and continued to collect his judicial salary.[4](https://www.law.cornell.edu/constitution-conan/article-2/section-4/judicial-impeachments#fn4art2 " Emily F.V. Tassel & Paul Finkelman, Impeachable Offenses: A Documentary History from 1787 to the Present 168 (1999). ") The House unanimously voted in favor of four articles of impeachment against him.[5](https://www.law.cornell.edu/constitution-conan/article-2/section-4/judicial-impeachments#fn5art2 " 132 Cong. Rec. H4710–22 (daily ed. July 22, 1986). ") The first two articles against Judge Claiborne simply laid out the underlying behavior that had given rise to his criminal prosecution.[6](https://www.law.cornell.edu/constitution-conan/article-2/section-4/judicial-impeachments#fn6art2 " H. Comm. on the Judiciary, Impeachment of Judge Harry E. Claiborne, Report to Accompany H. Res. 461, H.R. Rep. No. 99-688, 99th Cong. 1–2 (1986). ") The third article “rest[ed] entirely on the conviction itself” and stood for the principle that “by conviction alone he is guilty of ‘high crimes’ in office.” [7](https://www.law.cornell.edu/constitution-conan/article-2/section-4/judicial-impeachments#fn7art2 " Id. at 12. ") The fourth alleged that Judge Claiborne’s actions brought the “judiciary into disrepute, thereby undermining public confidence in the integrity and impartiality of the administration of justice” which amounted to a “misdemeanor.” [8](https://www.law.cornell.edu/constitution-conan/article-2/section-4/judicial-impeachments#fn8art2 " Id. at 23. ")

The Senate impeachment trial of Judge Claiborne was the first in which that body used a committee to take evidence. Rather than conducting a full trial with the entire Senate, the committee took testimony, received evidence, and voted on pretrial motions regarding evidence and discovery.[9](https://www.law.cornell.edu/constitution-conan/article-2/section-4/judicial-impeachments#fn9art2 " Staff from the S. Impeachment Trial Comm., On the Impeachment of Harry E. Claiborne, S. Rep. No. 99-511, 99th Cong. 1–4 (1986). ") The committee then reported a transcript of the proceedings to the full Senate, without recommending whether impeachment was warranted.[10](https://www.law.cornell.edu/constitution-conan/article-2/section-4/judicial-impeachments#fn10art2 " Id. at 1. ") The Senate voted to convict Judge Claiborne on the first, second, and fourth articles.[11](https://www.law.cornell.edu/constitution-conan/article-2/section-4/judicial-impeachments#fn11art2 " 132 Cong. Rec. 29,870–72 (1986). ")

In 1988, the House impeached a federal district judge who had been indicted for a criminal offense but acquitted. Judge Alcee L. Hastings was acquitted in a criminal trial where he was accused of conspiracy and obstruction of justice for soliciting a bribe in return for reducing the sentences of two convicted felons.[12](https://www.law.cornell.edu/constitution-conan/article-2/section-4/judicial-impeachments#fn12art2 " H.R. Rep. No.

, 100th Cong. 8 (1988). ")

100-810

, 100th Cong. 8 (1988). After his acquittal, a judicial committee investigated the case and concluded that Judge Hasting’s behavior might merit impeachment. The Judicial Conference (a national entity composed of federal judges that reviews investigations of judges and is authorized to refer recommendations to Congress) eventually referred the matter to the House of Representatives, noting that impeachment might be warranted.[13](https://www.law.cornell.edu/constitution-conan/article-2/section-4/judicial-impeachments#fn13art2 " Id. 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. ") The House of Representatives approved seventeen impeachment articles against Judge Hastings, including for perjury, bribery, and conspiracy.[14](https://www.law.cornell.edu/constitution-conan/article-2/section-4/judicial-impeachments#fn14art2 " H. Res. 499, 100th Cong. (1988); H.R. Rep. No.

, 100th Cong. 8 (1988). ")

Judge Hastings objected to the impeachment proceedings as “double jeopardy” because he had already been acquitted in a previous criminal proceeding.[15](https://www.law.cornell.edu/constitution-conan/article-2/section-4/judicial-impeachments#fn15art2 " Impeachment of Judge Alcee L. Hastings, Motions of Judge Alee L. Hastings to Dismiss Articles I-XV and XVII of the Articles of Impeachment Against Him and Supporting and Opposing Memoranda, S. Doc. 101–4, 101st Cong. 48–65 (1989). ") The Senate, however, rejected his motion to dismiss the articles against him.[16](https://www.law.cornell.edu/constitution-conan/article-2/section-4/judicial-impeachments#fn16art2 " The Impeachment Trial of Alcee Hastings, U.S. Senate, https://www.senate.gov/artandhistory/history/common/briefing/Impeachment_Hastings.htm (last visited Jan. 24, 2018). ") The Senate again used a trial committee to receive evidence. That body voted to convict and remove Judge Hastings on eight articles, but did not vote to disqualify him from holding future office.[17](https://www.law.cornell.edu/constitution-conan/article-2/section-4/judicial-impeachments#fn17art2 " 135 Cong. Rec. S13,783–87 (daily ed. Oct. 20, 1989). ") Judge Hastings was later elected to the House of Representatives.[18](https://www.law.cornell.edu/constitution-conan/article-2/section-4/judicial-impeachments#fn18art2 " Tassel & Finkelman, supra note 4, at 173. ")

Before the trial of Judge Hastings even began in the Senate, the House impeached Judge Walter L. Nixon. Judge Nixon was convicted in a criminal trial of perjury to a grand jury and imprisoned.[19](https://www.law.cornell.edu/constitution-conan/article-2/section-4/judicial-impeachments#fn19art2 " H. Comm. on the Judiciary, Impeachment of Walter L. Nixon, Jr., Report to Accompany H. Res. 87, H.R. Rep. No. 101-36, 101st Cong. 12–13 (1989). ") Following an investigation by the House Judiciary Committee’s Subcommittee on Civil and Constitutional Rights, the Judiciary Committee reported a resolution to the full House recommending impeachment on three articles.[20](https://www.law.cornell.edu/constitution-conan/article-2/section-4/judicial-impeachments#fn20art2 " Id. at 14–16. ") The full House approved three articles of impeachment, the first two involving lying to a grand jury and the last for undermining the integrity of and bringing disrepute on the federal judicial system.[21](https://www.law.cornell.edu/constitution-conan/article-2/section-4/judicial-impeachments#fn21art2 " 135 Cong. Rec. H1802–11 (daily ed. May 10, 1989). ") The Senate convicted Judge Nixon on the first two articles but acquitted him on the third.[22](https://www.law.cornell.edu/constitution-conan/article-2/section-4/judicial-impeachments#fn22art2 " 135 Cong. Rec. S14,633–39 (daily ed. Nov. 3, 1989). ")

Judge Nixon challenged the Senate’s use of a committee to receive evidence and conduct hearings. He brought a suit in federal court arguing that the use of a committee, rather than the full Senate, to take evidence violated the Constitution’s provision that the Senate “try” all impeachments.[23](https://www.law.cornell.edu/constitution-conan/article-2/section-4/judicial-impeachments#fn23art2 " Nixon v. United States, 506 U.S. 224, 226 (1993). ") The Supreme Court ultimately rejected his challenge in Nixon v. United States, ruling that the issue was a non-justiciable political question because the Constitution grants the power to try impeachments “in the Senate and nowhere else” ; and the word “try” “lacks sufficient precision to afford any judicially manageable standard of review of the Senate’s actions.” [24](https://www.law.cornell.edu/constitution-conan/article-2/section-4/judicial-impeachments#fn24art2 " Id. at 229. ") As a result of this decision, impeachment proceedings appear largely immune from judicial review.[25](https://www.law.cornell.edu/constitution-conan/article-2/section-4/judicial-impeachments#fn25art2 " The U.S. District Court for the District of Columbia initially threw out Judge Hastings’ Senate impeachment conviction, because the Senate had tried his impeachment before a committee rather than the full Senate. Hastings v. United States, 802 F. Supp. 490, 505 (D.D.C. 1992). The decision was vacated on appeal and remanded for reconsideration in light of Nixon v. United States. Hastings v. United States, 988 F.2d 1280 (D.C. Cir. 1993). The district court then dismissed the suit because it presented a nonjusticiable political question. Hastings v. United States, 837 F. Supp. 3, 5–6 (D.D.C. 1993). ")

Two judges have been impeached in the twenty-first century. As with the three impeachments of judges in the 1980s, the first followed a criminal indictment. District Judge Samuel B. Kent pled guilty to obstruction of justice for lying to a judicial investigation into alleged sexual misconduct and was sentenced to 33 months in prison.[26](https://www.law.cornell.edu/constitution-conan/article-2/section-4/judicial-impeachments#fn26art2 " H. Comm. on the Judiciary, Impeachment of Judge Samuel B. Kent, Report to Accompany H. Res. 520, H.R. Rep. No.

, 111th Cong. 6–13 (2009) [hereinafter Kent Impeachment]. ")

111-159

, 111th Cong. 6–13 (2009) [hereinafter Kent Impeachment]. The House impeached Judge Kent for sexually assaulting two court employees, obstructing the judicial investigation of his behavior, and making false and misleading statements to agents of the Federal Bureau of Investigation (FBI) about the activity.[27](https://www.law.cornell.edu/constitution-conan/article-2/section-4/judicial-impeachments#fn27art2 " 155 Cong. Re