Impeachment

Impeachment is a formal process in which an official is accused of unlawful activity, the outcome of which, depending on the country, may include the removal of that official from office as well as criminal or civil punishment.

History

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. Medieval popular etymology also associated it (wrongly) with derivations from the Latin impetere (to attack). (In its more frequent and more technical usage, impeachment of a person in the role of a witness is the act of challenging the honesty or credibility of that person.)

The process should not be confused with a recall election. A recall election is usually initiated by voters and can be based on "political charges", for example mismanagement, whereas impeachment is initiated by a constitutional body (usually a legislative body) and is usually, but not always, based on an indictable offense. The process of removing the official is also different.

Impeachment was first used in the British political system. Specifically, the process was first used by the English "Good Parliament" against Baron Latimer in the second half of the 14th century. Following the British example, the constitutions of Virginia (1776), Massachusetts (1780) and other states thereafter adopted the impeachment mechanism; however, they restricted the punishment to removal of the official from office. In private organizations, a motion to impeach can be used to prefer charges.^[1]

United Kingdom

In the United Kingdom, at least in theory, all persons, whether peers or commoners, may be prosecuted and tried by the two houses of the Parliament of the United Kingdom for any crimes whatsoever.^[2] The first recorded impeachment is that of William Latimer, 4th Baron Latimer during the Good Parliament of 1376. The last was that of Henry Dundas, 1st Viscount Melville in 1806.^[2]

Procedure

In the United Kingdom, it is the House of Commons that holds the power of initiating an impeachment. Any member may make accusations of any crime. 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. The procedure used to be that the Lord Chancellor presided (or the Lord High Steward if the defendant was a peer); but this was when the Lord Chancellor was both the Lords' presiding officer and head of the judiciary of England and Wales. Since both these roles were removed from that office by the Constitutional Reform Act 2005, which created the Lord Speaker to preside over the Lords and made the Lord Chief Justice head of the judiciary, it is not certain who would preside over an impeachment trial today. If Parliament is not in session, then the trial is conducted by a "Court of the Lord High Steward" instead of the House of Lords (even if the defendant is not a peer). The differences between this court and the House of Lords are that in the House all of the peers are judges of both law and fact, whereas in the Court the Lord High Steward is the sole judge of law and the peers decide the facts only; and the bishops are not entitled to sit and vote in the Court.^[3]

The hearing resembles an ordinary trial: both sides may call witnesses and present evidence. At the end of the hearing the lords vote on the verdict, which is decided by a simple majority, one charge at a time. Upon being called, a lord must rise and declare "guilty, upon my honour" or "not guilty, upon my honour". 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 decide 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. However, a pardon cannot override a decision to remove the defendant from the public office they hold.

History

Parliament has held the power of impeachment since medieval 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 Lord 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.

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 through a motion of no confidence 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. Furthermore, impeachment as a means of punishment for wrongdoing, as distinct from being a means of removing a minister, remains a valid reason for accepting that it continues to be available, at least in theory.

The Select Committee on Parliamentary Privilege in 1967 recommended "that the right to impeach, which has long been in disuse, be now formally abandoned".^[4] Their recommendation not having been implemented in the meantime, the Select Committee on Privileges in 1977 declared it "to be of continuing validity" and again urged that it be adopted.^[5] Shortly before this report was issued, in April 1977 the Young Liberals' annual conference unanimously passed a motion calling on Liberal Party leader David Steel to move for the impeachment of Ronald King Murray QC, the Lord Advocate, over his handling of the Patrick Meehan miscarriage of justice affair.^[6] Steel did not move any such motion but Murray (now Lord Murray, a former Senator of the College of Justice of Scotland) agreed that the power still existed.

The Joint Committee on Parliamentary Privilege in 1999 noted the previous recommendations to formally abandon the power impeachment, and stated that "The circumstances in which impeachment has taken place are now so remote from the present that the procedure may be considered obsolete".^[7] Notwithstanding, 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. He asked the Leader of the House of Commons Peter Hain whether he would confirm that the power to impeach was still available, reminding Hain that as President of the Young Liberals he had supported the attempted impeachment of Murray. Hain responded by quoting the 1999 Joint Committee's report, and the advice of the Clerk of the House of Commons that impeachment "effectively died with the advent of full responsible Parliamentary government".^[8]

United States

The impeachment trial of President Bill Clinton in 1999, Chief Justice William H. Rehnquist presiding. The House managers are seated beside the quarter-circular tables on the left and the president's personal counsel on the right, much in the fashion of President Andrew Johnson's trial.

Similar to the British system, Article One of the United States Constitution gives the House of Representatives the sole power of impeachment and the Senate the sole power to try impeachments. Unlike the British system, impeachment is only the first of two stages, and conviction requires a two-thirds vote. Impeachment does not necessarily result in removal from office; it is only a legal statement of charges, parallel to an indictment in criminal law. An official who is impeached faces a second legislative vote (whether by the same body or another), which determines conviction, or failure to convict, on the charges embodied by the impeachment. Most constitutions require a supermajority to convict. Although the subject of the charge is criminal action, it does not constitute a criminal trial; the only question under consideration is the removal of the individual from office, and the possibility of a subsequent vote preventing the removed official from ever again holding political office in the jurisdiction where he was removed. Impeachment with respect to political office should not be confused with witness impeachment.

Impeachable offenses

In the United States, impeachment can occur both at the federal and state level. The Constitution defines impeachment at the federal level and limits impeachment to "The President, Vice President, and all civil officers of the United States" who may be impeached and removed only for "treason, bribery, or other high crimes and misdemeanors".^[9] Several commentators have suggested that Congress alone may decide for itself what constitutes a "high crime or misdemeanour", especially since Nixon v. United States stated that the Supreme Court did not have the authority to determine whether the Senate properly "tried" a defendant.^{[citation needed]} In 1970, then-House Minority Leader Gerald R. Ford defined the criterion as he saw it: "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history."^[10] Four years later, Gerald Ford would become president when President Richard Nixon resigned under the threat of impeachment.

Officials subject to impeachment

The central question regarding the Constitutional dispute about the impeachment of members of the legislature is whether members of Congress are officers of the United States. The Constitution grants the House the power to impeach "The President, the Vice President, and all civil Officers of the United States." ^[9] It has been suggested that members of Congress are not officers of the United States.^[11] Others, however, believe that members are civil officers and are subject to impeachment.^{[citation needed]}

The House of Representatives did impeach a senator once:^[12] Senator William Blount, in 1798. The Senate expelled Senator Blount and, after initially hearing his impeachment, dismissed the charges for lack of jurisdiction.^[13] Left unsettled was the question whether members of Congress were civil officers of the United States. The House has not impeached a Member of Congress since Blount. As each House has the authority to expel its own members without involving the other chamber, expulsion has been the method used for removing Members of Congress.

Jefferson's Manual, which is integral to the Rules of the House of Representatives,^[14] states that impeachment is set in motion by charges made on the floor, charges preferred by a memorial, a member's resolution referred to a committee, a message from the president, charges transmitted from the legislature of a state or territory or from a grand jury, or from facts developed and reported by an investigating committee of the House. It further states that a proposition to impeach is a question of high privilege in the House and at once supersedes business otherwise in order under the rules governing the order of business.

Process

At the federal level, the impeachment process is a two-step procedure. The House of Representatives must first pass, by a simple majority of those present and voting, articles of impeachment, which constitute the formal allegation or 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. For the impeachment of any other official, the Constitution is silent on who shall preside, suggesting that this role falls to the Senate's usual presiding officer. This may include the impeachment of the vice president, although legal theories suggest that allowing a defendant to be the judge in his own case would be a blatant conflict of interest. If the Vice President did not preside over an impeachment (of anyone besides the President), the duties would fall to the President pro tempore of the Senate.

To convict the accused, a two-thirds majority of the senators present is required. Conviction removes the defendant from office. Following conviction, the Senate may vote to further punish the individual by barring him from holding future federal office, elected or appointed. Conviction by the Senate does not bar criminal prosecution. Even after an accused has left office, it is possible to disqualify the person from future office or from certain emoluments of his prior office (such as a pension). If there is no charge for which a two-thirds majority of the senators present vote "guilty", the defendant is acquitted and no punishment is imposed.

History of Federal Impeachment Proceedings in the United States

Congress regards impeachment as a power to be used only in extreme cases; the House has initiated impeachment proceedings only 64 times since 1789 (most recently against Judge Thomas Porteous of the United States District Court for the Eastern District of Louisiana) with only the following 19 of these proceedings actually resulting in the House passing Articles of Impeachment:

• Two presidents:
  • Andrew Johnson, Democrat/National Union, was impeached in 1868 after violating the then-newly created Tenure of Office Act. President Johnson was acquitted by the Senate, falling one vote short of the necessary 2/3 needed to remove him from office, voting 35-19 to remove him. The Tenure of Office Act would later be found unconstitutional by the Supreme Court of the United States in dicta.
  • Bill Clinton, Democrat, was impeached on December 19, 1998, by the House of Representatives on articles charging perjury (specifically, lying to a federal grand jury) by a 228–206 vote, and obstruction of justice by a 221–212 vote. The House rejected other articles: One was a count of perjury in a civil deposition in Paula Jones' sexual harassment lawsuit against Clinton (by a 205–229 vote). The second article was one that accused Clinton of abuse of power by a 48–285 vote. The Senate vote to remove him from office fell short of the necessary 2/3, voting 45-55 to remove him on obstruction of justice and 50-50 on perjury.
• In 1876, cabinet officer William W. Belknap (former Secretary of War), resigned before his trial, and was later acquitted. Allegedly most of those who voted to acquit him believed that his resignation had removed their jurisdiction.
• One Senator, William Blount, in 1797. He was expelled by the Senate, which declined to try the impeachment.
• One Justice of the Supreme Court of the United States, Samuel Chase in 1804. He was acquitted by the Senate.
• Fourteen other federal judges. Seven of these have been convicted by the Senate and removed,^[15] including Alcee Hastings, who was impeached and convicted for taking over $150,000 in bribe money in exchange for sentencing leniency. The Senate did not bar Hastings from holding future office, and Hastings won election to the House of Representatives from Florida. Hastings' name was mentioned as a possible Chairman of the House Permanent Select Committee on Intelligence, but was passed over by House Speaker-designate Nancy Pelosi, presumably because of his previous impeachment and removal. Source U.S. Senate

Richard Nixon, Republican, was never impeached. While the House Judiciary Committee did approve articles of impeachment against him and did report those articles to the House of Representatives, Nixon resigned before the House could consider the impeachment resolutions and was subsequently pardoned by President Ford.

Italy

In Italy, for example, made use of the term at the attempt by some forces of parliamentary opposition, to initiate the procedure provided for in Article 90 of the Constitution against the Presidents of the Italian Republic Francesco Cossiga (1991) and Giorgio Napolitano (2014). This adaptation of the word "impeachment" in political and constitutional reality different from that of the U.S. is often technically incorrect, because every order has its own peculiarities and should be ascribed to the trends and fashions of the language of politics and journalism.

Pakistan

The country's ruling coalition said on August 7, 2008, that it would seek the impeachment of President Pervez Musharraf, alleging the U.S.-backed former general had "eroded the trust of the nation" and increasing pressure on him to resign. He resigned on 18 August 2008. Another kind of impeachment in Pakistan is known as the vote of less-confidence or vote of mis-understanding and has been practiced by provincial assemblies to weaken the national assembly.

Impeaching a president requires a two-thirds majority support of lawmakers in a joint session of both houses of Parliament.

South Africa

Jacob Zuma President of South Africa and head of the African National Congress has been accused of using more than R240M of taxpayers money to pay for "security upgrades" at his private Nkandla residence. He is also facing many other fraud and corruption charges. Zuma publicly declared he had taken a bond out to pay for his upgrades. A report has been under way by the Public Protector but all attempts to release the report so far have been met by court interdicts to prevent "releasing classified information that would affect the Presidents security". If found guilty he faces impeachment charges. ^[16] The 'security cluster' of ministers, have threatened to prosecute those who publish pictures of Pres Zuma's Nkandla residence.

Philippines

Impeachment in the Philippines follows procedures similar to the United States. Under Sections 2 and 3, Article XI, Constitution of the Philippines, the House of Representatives of the Philippines has the exclusive power to initiate all cases of impeachment against the President, Vice President, members of the Supreme Court, members of the Constitutional Commissions (Commission on Elections, Civil Service Commission and the Commission on Audit), and the Ombudsman. When a third of its membership has endorsed the impeachment articles, it is then transmitted to the Senate of the Philippines which tries and decide, as impeachment tribunal, the impeachment case.^[17]

A main difference from US proceedings however is that only 1/3 of House members are required to approve the motion to impeach the President (as opposed to a simple majority of those present and voting in their US counterpart). In the Senate, selected members of the House of Representatives act as the prosecutors and the Senators act as judges with the Senate President presiding over the proceedings (the Chief Justice jointly presides with the Senate President if the President is on trial). Like the United States, to convict the official in question requires that a minimum of 2/3 (i.e., 16 of 24 members) of all the Members of the Senate vote in favor of conviction. If an impeachment attempt is unsuccessful or the official is acquitted, no new cases can be filed against that impeachable official for at least one full year.

Impeachable offenses and officials

The 1987 Philippine Constitution says the grounds for impeachment include culpable violation of the Constitution, bribery, graft and corruption, and betrayal of public trust. These offenses are considered "high crimes and misdemeanors" under the Philippine Constitution.

The President, Vice President, Supreme Court justices, and members of the Constitutional Commission and Ombudsman are all considered impeachable officials under the Constitution.

Impeachment proceedings and attempts

President Joseph Estrada was the first official impeached by the House in 2000, but the trial ended prematurely due to outrage over a vote to open an envelope where that motion was narrowly defeated by his allies. Estrada was deposed days later during the 2001 EDSA Revolution.

In 2005, 2006, 2007 and 2008, impeachment complaints were filed against President Gloria Macapagal-Arroyo, but none of the cases reached the required endorsement of 1/3 of the members for transmittal to, and trial by, the Senate.

In March 2011, the House of Representatives impeached Ombudsman Merceditas Gutierrez, becoming the second person to be impeached. On April, Gutierrez resigned prior to the Senate's convening as an impeachment court.

In December 2011, in what was described as “blitzkrieg fashion,” 188 of the 285 members of the House of Representatives voted to transmit the 56-page Articles of Impeachment against Supreme Court Chief Justice Renato Corona.

As of date, three officials had been successfully impeached by the House of Representatives, and two were not convicted. The latter, Chief Justice Renato C. Corona, on May 29, 2012 has been convicted by the House of the Senate guilty under Article II of the 1987 Philippine Constitution (of betraying public trust.), with 20-3 votes from the Senator Judges.

Ireland

In the Republic of Ireland formal impeachment only applies to the Irish president. Article 12 of the Irish Constitution 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 they are guilty of the charge of which they stand accused, and that the charge is sufficiently serious as to warrant their 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.

Other jurisdictions

• Austria: The Austrian Federal President can be impeached by the Federal Assembly (Bundesversammlung) before the Constitutional Court. The constitution also provides for the recall of the president by a referendum. Neither of these courses has ever been taken, likely because the President is an unobtrusive and largely ceremonial figurehead who, having little power, is hardly in a position to abuse it.
• Brazil: The President of Federative Republic of Brazil may be impeached. This happened in December 30, 1992 to Fernando Collor de Mello, who was removed from the presidency and held ineligible for eight years, due to evidence of bribery and misappropriation. State governors and municipal mayors may also be impeached, though only the latter have actually been removed from office through this procedure.
• Bulgaria: The President of Bulgaria can be removed only for high treason or violation of the constitution. The process is started by a two-thirds majority vote of the Parliament to impeach the President, whereupon the Constitutional Court decides whether the President is guilty of the crime he is charged with. If he is found guilty, he is removed from power. No Bulgarian President has ever been impeached. The same procedure can be used to remove the Vice President of Bulgaria, which has also never happened.
• Croatia: President of Croatia Sabor starts the impeachment process with two-thirds majority in favor of impeachment and then Constitutional Court has to accept that with two-thirds majority of justices in favor of impeachment. This has never happened in the history of the Republic of Croatia.
• Czech Republic: President of the Czech Republic can be impeached only for an act of high treason (which is not specified in the Constitution of the Czech Republic itself). The process has to start Senate of the Czech Republic which only has the right to impeach resident, this passes case to the Constitutional Court of the Czech Republic which has to decide whether the President is guilty or not. If the Court decides that the President is guilty than the President loses his office and the ability to be elected President of the Czech Republic ever again.^[18] No Czech president has ever been impeached.
• Germany: The Federal President of Germany can be impeached both by the Bundestag and by the Bundesrat for willfully violating Federal law. Once the Bundestag or the Bundesrat impeaches the president, the Federal Constitutional Court decides whether the President is guilty as charged and, if this is the case, whether to remove him or her from office. No such case has yet occurred, not the least because the President's functions are mostly ceremonial and they seldom make controversial decisions. The Federal Constitutional Court also has the power to remove federal judges from office for willfully violating core principles of the federal constitution or a state constitution.
• India: The President of India can be impeached by the Parliament before the expiry of the term for violation of the Constitution. Other than impeachment, no other penalty can be given to the President for the violation of the Constitution. No Indian President has faced impeachment proceedings. Hence, the provisions for impeachment have never been tested.
• Iran: Member of Majlis representatives and the Leader can remove the President. In January 1980, Abolhassan Banisadr, then the president of Iran, was impeached by the Majlis representatives in June, 1981. The Assembly of Experts can impeach the Leader.
• Italy: The President of the Republic can be impeached through a majority vote of the Parliament in joint session only for high treason and for attempting to overthrow the Constitution. Then, he is tried by the Constitutional Court, integrated with sixteen citizens older than forty chosen by lot from a list compiled by the Parliament every nine years.
• Liechtenstein: The Prince can be disposed by the popular vote. Since 2003, the constitution provides for the recall of the Prince by a referendum.
• Norway: Members of government, representatives of the national assembly (Stortinget) and Supreme Court judges can be impeached for criminal offences tied to their duties and committed in office, according to the Constitution of 1814, §§ 86 and 87. The procedural rules were modelled on the US rules and are quite similar to them. Impeachment has been used eight times since 1814, last in 1927. Many argue that impeachment has fallen into desuetude.
• Romania: The President can be impeached by Parliament and is then suspended. A referendum then follows to determine whether the suspended President should be removed from office. President Traian Băsescu was impeached twice by the Parliament: in 2007 and more recently in July 2012. A referendum was held on May 19, 2007 and a large majority of the electorate voted against removing the president from office. For the most recent suspension a referendum was held on July 29, 2012.
• Russia: The President of Russia can be impeached if both the State Duma (which initiates the impeachment process through the formation of a special investigation committee) and the Federation Council of Russia vote by a two-thirds majority in favor of impeachment and, additionally, the Supreme Court finds the President guilty of treason or a similarly heavy crime against the nation and the Constitutional Court confirms that the constitutional procedure of the impeachment process was correctly observed. In 1995-1999, the Duma made several attempts to impeach then-President Boris Yeltsin, but they never had a sufficient amount of votes for the process to reach the Federation Council.
• Republic of China (Taiwan): In Taiwan (officially called the ROC) officials can be impeached by a two-thirds vote in the Legislative Yuan together with an absolute majority in a referendum.
• Venezuela: Any elected authority (including governors, vice-president and president) can be impeached after half the period for which the authority was elected. This provided that no less than 20% of the registered voters in the jurisdiction ask for the process to start and afterwards more or the same number of people that elected the authority, vote in favor of the removal of the latter. The president can also be removed from charge if the supreme court rules so, or in case of mental insanity or physical incapacity.

References

Further reading

• Gerhardt, Michael J. The federal impeachment process.