The Law of Presidential Impeachments (1974)

For only the second time in the history of our nation, Congress and public are giving serious attention to the possibility of impeachment and removal of a President. The Executive Committee of this Association, among others, urged that Congress proceed to “investigate whether or not impeachment proceedings should be instituted” against President Nixon.* Yet there is little general knowledge of the substance and procedure of this seldom used constitutional authority.

In the interest of informing the Bar and the public, and without taking any position on the evidentiary matters involved in the current impeachment controversy, we have undertaken to prepare this brief analysis of the applicable law. The report expresses our views on the controverted legal issues concerning proper grounds for impeachment and the availability of judicial review of the proceedings in Congress. (We shall use the term “impeachment” primarily in the technical sense, to refer to the action by the House of Representatives stating charges against a public official, rather than in the common parlance, by which the term refers to the entire process of impeachment, trial and removal.)

The analysis which follows is divided into five sections. After an initial review of the pertinent constitutional language, we consider the substantive standards for impeachment and removal, as found in the language of the Constitution and illuminated by historical evidence. The third and fourth sections discuss the respective procedures applicable to an impeachment in the House of Representatives, and to the trial of an impeachment in the Senate. Finally, we consider the propriety of judicial review of an ultimate decision for removal.