Article 2, Section 4 — Offices Eligible For Impeachment

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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.

The Constitution provides that “[t]he President, Vice President, and all civil Officers of the United States” are subject to removal from office upon impeachment and conviction. However, neither the text nor early historical sources precisely delineate who qualifies as a “civil officer.” For example, debates at the Constitutional Convention do not appear to reveal the scope of who may be impeached beyond the provision’s applicability to the President. (describing Rufus King’s observation that judges would be impeachable because they hold their office during good behavior). ") And while the Federalist Papers emphasized that the power of impeachment serves as a check on the Executive. ") and Judicial Branches, they did not outline exactly what types of officials were considered to be civil officers.; Del. Const. of 1776 art. 23 (same). ")

Historical practice thus informs the understanding of who qualifies as a civil officer. Aside from the President and Vice President, who are plainly identified in the Constitution’s text as impeachable officials, historical practice indicates that federal judges clearly qualify as officers subject to impeachment and removal, as the majority of proceedings have applied to those positions.. ") Congress has also impeached the head of a cabinet-level Executive department. [hereinafter Hinds]; see infra . ") While this indicates a congressional understanding that high-level Executive officers may be subject to impeachment, it is unclear how far down the ranks of the federal bureaucracy this principle travels.; Michael J. Broyde & Robert A. Schapiro, Impeachment and Accountability: The Case of the First Lady, 15 Const. Comment. 479 (1998). The Supreme Court, in interpreting those provisions, has distinguished between officers, who exercise “significant authority” of the United States, Buckley v. Valeo, 424 U.S. 1, 126 (1976), and employees, or non-officers who are “lesser functionaries subordinate to the officers of the United States.” Id. at 126 n.162. The Court has further recognized the Constitution’s distinction between principal officers, who must be appointed by the President and confirmed by the Senate, and inferior officers, whose appointment may be placed in the President, department heads, or the courts of law. Edmond v. United States, 520 U.S. 651, 663 (1997). Assuming this line of cases serves as a guide in deciding who is a civil officer subject to impeachment, it appears that “employees,” as non-officers, are not subject to impeachment, while principal officers, such as the head of a cabinet-level Executive department, are. In between these two categories, historical practice does not indicate whether an inferior officer is subject to impeachment, as the House has never impeached such an individual. ")

The second impeachment trial of President Donald Trump centered on the question of whether former officials remain subject to trial by the Senate after leaving office. There is historical evidence to support an original understanding that former officials remain subject to conviction and punishment by the Senate for actions taken while in office.. ") The constitutional text, however, does not directly address the question. Former President Trump’s attorneys viewed the Constitution’s command that “[t]he President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment . . . and Conviction,” as supporting a requirement that the impeachment process applies only to officials who are holding office during the impeachment proceedings.. ") Justice Joseph Story, in his influential Commentaries on the Constitution of the United States, similarly argued that “the language of the constitution may create some doubt, whether [disqualification] can be pronounced without being coupled with a removal from office.” . ") Moreover, to extend the impeachment process to former officials could be viewed as in tension with the Constitution’s otherwise clear break from the British model, which permitted impeachment of private citizens.

But it has also been argued, including by the House managers in the second Trump trial, that the constitutionally enumerated punishments of removal from office and disqualification from future office are distinct components of the remedy for impeachable misconduct.. ") The fact that an official has left office, and is therefore no longer subject to removal, does not “exempt” them from the remaining penalty of disqualification.. ") Moreover, if impeachment does not extend to officials who are no longer in office, then an important aspect of the impeachment punishment would be lost as Congress could never bar an official from holding office in the future as long as that individual resigns at some point prior to a Senate conviction.

While these interpretive arguments have, and likely will continue to be raised, the Senate has determined by majority vote on multiple occasions that they retain the power to proceed against an Executive Branch official who has resigned from office. These decisions span from the trial of former Secretary of War William Belknap in 1876 to former President Trump in 2020.; 167 Cong. Rec. S609 (daily ed. Feb. 9, 2021). ") Nevertheless, it appears that while Congress may have legal authority to impeach and try a former official, current disagreement on the matter may be widespread enough to create a practical obstacle to obtaining the supermajority necessary to convict a former official.

The Constitution’s structure and historical practice also indicate that impeachment likely does not apply to Members of Congress.. ") First, Article II, Section 3 provides that officers of the United States are commissioned by the President; Members of Congress receive no such commission. Second, Members may be removed from office by other means explicitly provided in the Constitution. Third, the Ineligibility Clause bars any person “holding any office under the United States” from serving in any house of Congress, indicating the Members of Congress are not considered officers of the United States.

Finally, congressional practice indicates that Members of Congress are not officers of the United States. ( “The Senator William Blount precedent of 1798 does seem to have determined that the Senate will not try its members on an impeachment.” ); David Currie, The Constitution in Congress: The Federalist Period 1789–1801 275–281 (1997). …