Article 2, Section 4 — President Donald Trump And Impeachable Offenses

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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.

President Donald Trump was impeached twice during his single term in office. In each case, he was acquitted on all counts by the Senate.

The first impeachment trial stemmed from a call President Trump had with the President Volodymyr Zelenskyy of Ukraine in which President Trump asked the Ukrainian President to announce two investigations: one involving his potential opponent in the upcoming 2020 presidential election and a second into unsubstantiated allegations that entities within Ukraine had interfered in the 2016 presidential election.[1](https://www.law.cornell.edu/constitution-conan/article-2/section-4/president-donald-trump-and-impeachable-offenses#fn1art2 " H.R. Rep. No.

, at 81–83 (2019). ")

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, at 81–83 (2019). At the time of the call, the Office of Management and Budget had frozen $400 million in military aid to Ukraine at the direction of the President.[2](https://www.law.cornell.edu/constitution-conan/article-2/section-4/president-donald-trump-and-impeachable-offenses#fn2art2 " Id. at 82. ") The contents of the call initially came to light through an intelligence community whistleblower report, but a summary of the call was later made public by President Trump.[3](https://www.law.cornell.edu/constitution-conan/article-2/section-4/president-donald-trump-and-impeachable-offenses#fn3art2 " Id. at 126. ")

The House investigation proceeded in two phases. The fact-finding portion of the investigation was primarily handled by the House Intelligence Committee, in cooperation with the Committee on Oversight and Reform and the Committee on Foreign Affairs.[4](https://www.law.cornell.edu/constitution-conan/article-2/section-4/president-donald-trump-and-impeachable-offenses#fn4art2 " See Staff of H. Perm. Select Comm. on Intelligence, H. Comm. on Oversight and Reform, & H. Comm. on Foreign Affairs, 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, 116th Cong. (Comm. Print 2019). ") The early stage of this phase of the investigation saw some controversy over whether the House must explicitly authorize the initiation of an impeachment investigation. Although the Speaker of the House had announced that the committee investigations constituted an “official impeachment inquiry,” the White House counsel objected to the investigations on the ground that the investigation lacked “the necessary authorization for a valid impeachment proceeding” and violated the Due Process Clause.[5](https://www.law.cornell.edu/constitution-conan/article-2/section-4/president-donald-trump-and-impeachable-offenses#fn5art2 " Press Release, Nancy Pelosi, Speaker of the House, Pelosi Remarks Announcing Impeachment Inquiry (Sept. 24, 2019), https://www.speaker.gov/newsroom/92419-0. ") As a result, the President instructed members of his administration not to cooperate with the House’s “unconstitutional inquiry.” [6](https://www.law.cornell.edu/constitution-conan/article-2/section-4/president-donald-trump-and-impeachable-offenses#fn6art2 " See Letter from Pat Cipollone, White House Counsel, to Nancy Pelosi, Speaker of the House of Representatives, et al. (Oct. 8, 2019) https://s3.documentcloud.org/documents/6459967/PAC-Letter-10-08-2019.pdf. ")

The House later took action to explicitly approve the impeachment investigation by adopting a resolution authorizing the House committees “to continue their ongoing investigations as part of the existing House of Representatives inquiry into whether sufficient grounds exist . . . to impeach Donald John Trump.” [7](https://www.law.cornell.edu/constitution-conan/article-2/section-4/president-donald-trump-and-impeachable-offenses#fn7art2 " H.R. Res. 660, 116th Cong. (2019). ") Nevertheless, the White House and other Executive Branch offices generally refused to comply with the House investigators requests for information, including subpoenas. Some Executive Branch officials, however, made the individual determination to cooperate with the impeachment inquiry and, as a result, the Intelligence Committee was able to hold a number of investigative hearings and issue a report outlining their findings. The record established in the fact finding phase was then provided to the Judiciary Committee.

Phase two of the impeachment investigation was conducted by the Judiciary Committee. This phase focused on whether the President’s conduct, as uncovered in the fact finding phase of the inquiry, constituted an impeachable offense.[8](https://www.law.cornell.edu/constitution-conan/article-2/section-4/president-donald-trump-and-impeachable-offenses#fn8art2 " See H.R. Rep. No.

; Report by the Majority Staff of the H. Comm. on the Judiciary, Constitutional Grounds for Presidential Impeachment, 116th Cong. (Comm. Print 2019). ")

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; Report by the Majority Staff of the H. Comm. on the Judiciary, Constitutional Grounds for Presidential Impeachment, 116th Cong. (Comm. Print 2019). Following a series of hearings, the Committee recommended two articles of impeachment against the President, both of which were ultimately approved by the House. The first charged the President with abuse of power, alleging that he had used the powers of his office to solicit Ukraine’s interference in the 2020 election and had conditioned official acts, such as the release of military aid to Ukraine and a White House visit, on President Zelenskyy agreeing to announce the investigations.[9](https://www.law.cornell.edu/constitution-conan/article-2/section-4/president-donald-trump-and-impeachable-offenses#fn9art2 " H.R. Res. 755, 116th Cong. (2019). ") “President Trump,” the article alleged, “engaged in this scheme or course of conduct for corrupt purposes in pursuit of personal political benefit.” [10](https://www.law.cornell.edu/constitution-conan/article-2/section-4/president-donald-trump-and-impeachable-offenses#fn10art2 " Id. ") The second article charged the President with obstruction of the House impeachment investigation by directing the “unprecedented, categorical, and indiscriminate defiance of subpoenas issued by the House of Representatives.” [11](https://www.law.cornell.edu/constitution-conan/article-2/section-4/president-donald-trump-and-impeachable-offenses#fn11art2 " Id. ") “This abuse of office,” the article alleged, was “subversive of constitutional government” and “nullif[ied] a vital constitutional safeguard vested solely in the House of Representatives.” [12](https://www.law.cornell.edu/constitution-conan/article-2/section-4/president-donald-trump-and-impeachable-offenses#fn12art2 " Id. ")

Although the impeachment articles were adopted by the House on December 18, 2019, the managers were not appointed and the articles not delivered to the Senate until January 15, 2020.[13](https://www.law.cornell.edu/constitution-conan/article-2/section-4/president-donald-trump-and-impeachable-offenses#fn13art2 " H.R. Res. 798, 116th Cong. (2020). ")

The Senate trial was characterized by deep partisan divides and complicated disagreements over questions of law and fact, including presidential motive. But one clear constitutional conflict that arose during the trial involved the proper relationship between impeachment and criminal law. Trial briefs and debate made clear that the House managers and President Trump’s attorneys reached very different conclusions on the question of whether “high crimes and misdemeanors” require evidence of a criminal act or other legal violation.[14](https://www.law.cornell.edu/constitution-conan/article-2/section-4/president-donald-trump-and-impeachable-offenses#fn14art2 " U.S. Const. art. II, § 4. ") The House, consistent with past impeachment practice, asserted that for purposes of Article II “high Crimes and Misdemeanors” “need not be indictable criminal offenses.” [15](https://www.law.cornell.edu/constitution-conan/article-2/section-4/president-donald-trump-and-impeachable-offenses#fn15art2 " Proceedings of the United States Senate in the Impeachment Trial of President Donald John Trump, Vol. I: Preliminary Proceedings, S. Doc. No. 116-18, 116th Cong. 416 (2020). ") In response, however, the President’s attorneys asserted that an “impeachable offense must be a violation of established law,” and that the articles “fail[ed] to allege any crime or violation of law whatsoever, let alone ‘high Crimes and Misdemeanors,’ as required by the Constitution.” [16](https://www.law.cornell.edu/constitution-conan/article-2/section-4/president-donald-trump-and-impeachable-offenses#fn16art2 " Id. at 471. ") The acquittal provided no clear resolution to these conflicting positions, but the debate over a link between illegal acts and impeachable acts appears to have had some impact on individual Senators. Indeed, the House’s managers’ failure to allege an explicit criminal act appears, along with criticism of the House investigation and failure of the House to prove its case, to have been among the primary reasons given for acquittal.[17](https://www.law.cornell.edu/constitution-conan/article-2/section-4/president-donald-trump-and-impeachable-offenses#fn17art2 " See, e.g., Proceedings of the United States Senate in the Impeachment Trial of President Donald John Trump, Vol. IV: Statements of Senators, S. Doc. No. 116-18, 116th Cong. 1914 (2020) (statement of Senator James M. Inhofe) ( “Each of the past impeachment cases in the House of Representatives accused Presidents Johnson, Nixon, and Clinton of committing a crime. This President didn’t commit a crime.” ); id. at 1984 (statement of Senator Ted Cruz) ( “Indeed, in the Articles of Impeachment they sent over here, they don’t allege any crime whatsoever. They don’t even allege a single Federal law that the President violated.” ); id. at 1990 (statement of Senator David Perdue) ( “President Trump is the first President ever to face impeachment who was never accused of any crime in these proceedings, whatsoever. These two Articles of Impeachment simply do not qualify as reasons to impeach any President” ); id. at 2034 (statement of Senator John Cornyn) ( “But they failed to bring forward compelling and unassailable evidence of any crime—again, the Constitution talks about treason, bribery, or other high crimes and misdemeanors; clearly, a criminal standard . . . .” ). Other Senators identified the non-existence of a crime as an important factor in their vote, but nevertheless made clear their belief that a crime is not constitutionally required. See, e.g., id. at 1937 (statement of Senator Mitch McConnell) ( “Now, I do not subscribe to the legal theory that impeachment requires a violation of a criminal statute, but there are powerful reasons why, for 230 years, every Presidential impeachment did in fact allege a criminal violation.” ); id. at 2016 (statement of Senator Rob Portman) ( “In this case, no crime is alleged. Let me repeat. In the two Articles of Impeachment that came over to us from the House, there is no criminal law violation alleged. Although I don’t think that that is always necessary—there could be circumstances where a crime isn’t necessary in an impeachment . . . . ” ). ")

As the Senate trial proceeded, it became apparent that a major point of contention would be whether the Senate would call its own witnesses. The House managers asked that the Senate authorize subpoenas for relevant Executive Branch documents and for testimony from various White House officials including former National Security Advisor John Bolton.[18](https://www.law.cornell.edu/constitution-conan/article-2/section-4/president-donald-trump-and-impeachable-offenses#fn18art2 " See Proceedings of the United States Senate in the Impeachment Trial of President Donald John Trump, Vol. II: Floor and Trial Proceedings, S. Doc. No. 116-18, 116th Cong. 1498–99 (2020). ") With only forty-nine Senators voting in favor, the Senate chose not to approve that request, and the record was limited to the evidence provided by the House.[19](https://www.law.cornell.edu/constitut