Editor’s Note: This article is available in audio format on the Lawfare Podcast Shorts:
Tipsy on the bench. Cursing at the God Almighty. Making intemperate speeches about Congress. Sexual assault. Tax evasion. “Prostituting ... high office to his lust for private gain.” Even staying on the bench when one’s state secedes from the Union.
A Netflix show? A dime-store Civil War novel?
It’s actually the history of impeachment.
When experts write about impeachment, they tend to spend a lot of time on the Founding. What did the Founders mean by the words “high crimes and misdemeanors”? What is an impeachable offense? Does impeachment require a criminal act? Is every criminal act impeachable?
These conversations are important, and they’re endlessly fascinating theoretically. But there’s another way to think about the impeachable offense: by looking at the offenses for which Congress has actually impeached people.
The House of Representatives on Jan. 15 transferred the articles of impeachment against Donald Trump to the Senate for trial. How do these articles stack up against more than 200 years of impeachment in actual practice?
Since the Founding, the House has impeached 20 officeholders: 15 federal judges; one senator; one cabinet member; and, as of December 2019, three presidents. Of that list, only eight people were ultimately convicted by the Senate and removed from office. Many others had the foresight to resign before conviction, although the Senate tried some of them anyway—if only for good measure and perhaps to disqualify them from subsequent office. While most cases involve charges of personal gain, gross misbehavior or abuse of office in some way, many involve multiple charges. And not all of those charges involve conduct whose evil resonates through the ages.
Indeed, the House has impeached over the years any number of officials for being, well, unpleasant. The earliest of these cases involved Judge John Pickering (1804, U.S. District Court for the District of New Hampshire), who was impeached for drinking on the job. Several decades later, Judge Mark H. Delahay (1873, District of Kansas) was impeached for similar behavior. In the case of Pickering, Article IV noted that he was:
a man of loose morals and intemperate habits … [who] … in the year 1802, being then judge of the district court in and for the district of New Hampshire, did appear on the bench of the said court for the administration of justice in a state of total intoxication, produced by the free and intemperate use of intoxicating liquors; and did then and there frequently, in a most profane and indecent manner, invoke the name of the Supreme Being, to the evil example of all the good citizens of the United States; and was then and there guilty of other high misdemeanors, disgraceful to his own character as a judge and degrading to the honor of the United States.
In short, he drank and swore, in addition to handling property claims improperly. Pickering was ultimately convicted and removed from office for his bad behavior. Delahay, whom the House accused of “habitual intoxication” resigned before the Senate could render a final verdict.
The case of President Andrew Johnson, our first impeached president, dealt principally with Johnson’s decision to fire Secretary of War Edwin Stanton. This was an indictable offense under the 1867 Tenure of Office Act, which was enacted over Johnson’s veto to limit the president’s ability to fire members of his cabinet. Repealed in 1887, the act is widely regarded today as unconstitutional. But the impeachment articles also catalogue Johnson’s perennial harangues against the first branch. In language that today seems almost comical, the House charged that:
Andrew Johnson as the Chief Magistrate of the United States, did, on the 18th day of August, in the year of our Lord 1866, and on divers other days and times, as well before as afterward, make and deliver with a loud voice certain intemperate, inflammatory, and scandalous harangues, and did therein utter loud threats and bitter menaces as well against Congress amid the cries, jeers, and laughter of the multitudes then assembled and within hearing ….
The addition of Johnson’s Trumpy speeches didn’t alter the outcome. The Senate ultimately acquitted Johnson, albeit narrowly—after voting on only three of the impeachment articles. The vote on each article was 35 to 19, one short of the two-thirds majority needed to convict.
If these crimes don’t sound all that high, these officials aren’t the only ones impeached for what we might call low crimes and misdemeanors. One judge, Harry E. Claiborne (1986, District of Nevada), mistakenly assumed he could get away with not paying taxes. The House impeached him for failing to report more than $100,00 on his 1979 and 1980 federal income tax returns and, separately, for remaining on the bench after he had been criminally convicted for tax evasion. Ultimately, the Senate removed him from office and he spent time in prison.
More severe personal misconduct has also triggered impeachment. In 2009, nearly a decade before the #MeToo movement, Judge Samuel B. Kent (Southern District of Texas) was impeached for sexually assaulting his female legal aides and then lying about it to the FBI and the Justice Department. He resigned before his trial completed.
Not all impeachments involve personal misconduct. Some involve the behavior of judges in their judicial capacities. Many impeachment articles concern the improper use of judicial discretion. For example, Pickering faced articles of impeachment not just for drunken cursing but also for refusing to allow government witnesses to testify in his court. And Supreme Court Justice Samuel Chase, the first and only Supreme Court Justice ever impeached, refused to excuse jurors claiming prejudice and denied defendants the opportunity to make their case. (Vice President Aaron Burr, who had killed Alexander Hamilton shortly before, showed up at the Senate to preside over Chase’s trial.) The House alleged that Chase:
in the trial of John Fries, charged with treason, … did, in his judicial capacity, conduct himself in a manner highly arbitrary, oppressive, and unjust …. In consequence of which irregular conduct of the said Samuel Chase, as dangerous to our liberties as it is novel to our laws and usages, the said John Fries was deprived of the right, secured to him by the eighth article amendatory of the Constitution, and was condemned to death without having been heard by counsel, in his defense, to the disgrace of the character of the American bench, in manifest violation of law and justice, and in open contempt of the right of juries, on which ultimately rest the liberty and safety of the American people.
Similarly, both Judge James H. Peck (1831, District of Missouri) and Judge Charles Swayne (1905, Northern District of Florida), were impeached for abusing their contempt power, though neither was removed from office for it. Peck had charged an attorney with contempt and ordered him to be imprisoned and disbarred because he criticized the judge’s legal reasoning in an anonymous letter. Swayne similarly was accused of imprisoning and fining lawyers without proper authority, as well as spending the majority of the year outside of his district. The list of such impeachment articles is long.
Then there’s the case of West H. Humphreys, a federal district judge for several districts in Tennessee, who didn’t feel like giving up his office when his state joined the Confederacy. Rather than resign and forego his federal space, Humphreys accepted a judicial position in the Confederate States of America and changed the flag in his courtroom—all without resigning from the U.S. federal bench. His position could not be filled, since he had not vacated it. And Humphreys busied himself ordering multiple people arrested people for failing to swear allegiance to the Confederate States of America. Wanting to maintain some semblance of the Union presence in Tennessee but unable to replace Humphrey’s position absent a formal resignation, Congress impeached him in 1862. There were seven articles against him, including:
Art, 1. West H. Humphreys … did endeavor by public speech to incite revolt and rebellion … against the Constitution and Government of the United States, and did then and there publicly declare that it was the right of the people of said State, by an ordinance of secession, to absolve themselves from all allegiance to the Government of the United States, the Constitution and laws thereof.
Art. 6. … West H. Humphrey … with intent to subvert the authority of the Government of the United States, to hinder and delay the due execution of the laws of the United States, and to oppress and injure citizens of the United States, did unlawfully act as judge of an illegally constituted tribunal within said State, called the district court of the Confederate States of America, and as judge of said tribunal … then and there assumed and exercised powers unlawful and unjust, to wit, in causing one Perez Dickinson, a citizen of said State, to be unlawfully arrested and brought before him, as judge of said alleged court of said Confederate States of America, and required him to swear allegiance to the pretended government of said Confederate States of America ….
He was found guilty and removed from office.
And a lot of impeachments are about money.
In fact, it was money that caused the Senate to debate that impeachment did not reach members of Congress. Back in the 1790s, Britain and Spain were at war. The U.S. had officially adopted a position of neutrality, but Sen. William Blount of the new state of Tennessee wasn’t interested in neutrality. He had significant debt and believed he could make more money from western land prices if Britain controlled what is now part of modern-day Louisiana and Florida. Unfortunately, Blount’s plan—which involved inciting the Cherokee and Creek nations to attack the Spanish—lacked subtly, and a letter he wrote describing it made its way to President John Adams. The House impeached him in July 1797 for his efforts to “conspire and contrive to excite the Creek and Cherokee nations of Indians … to commence hostilities against … His Catholic Majesty,” as well as against the United States. The Senate then voted to expel Blount and—as if the political sanction wasn’t clear enough—decided to try him as well, before dismissing his case. While there’s a general, albeit perhaps mistaken, acceptance now that senators can’t be impeached, the Senate failed to precisely resolve that question at the time.
While “high crimes and misdemeanors” is left undefined in the Constitution, Article II names bribery, along with treason, as a proper ground for impeachment. And bribery has a certain pride of place in the history of impeachment.
In 1876, William W. Belknap, the secretary of war under President Ulysses Grant, was impeached for appointing an individual to maintain a military trading post at Fort Sill in Indian territory in exchange for regular payments of more than $20,000 per year (close to half a million in today’s dollars). Belknap had maintained a lavish lifestyle for many years—hosting infamous parties—and no one could square how his government salary financed his lifestyle. Though Belknap rushed to resign before the House impeached him, the House proceeded to issue articles against him anyway for “criminally disregarding his duty as Secretary of War and basely prostituting his high office to his lust for private gain.” Like Blount, Belknap resigned before the trial began, but the House managers ultimately called 40 witnesses anyway (Mitch McConnell wasn’t majority leader then), before the Senate acquitted him.
More than 30 years later, in 1912, the House impeached Robert W. Archbald, an associate judge on the U.S. Commerce Court. Archbald had used his position to secure concessions from the coal and railroad industries. The House found that, among other things, Archbald had purchased land from the Erie Railroad Company while it was defending itself in a case before him. The Senate ultimately removed Archbald—marking the first time that a corruption-related offense led to removal from office. Over the next few decades, the House impeached federal judges Harold Louderback (1933, Northern District of California), George W. English (1926, Eastern District of Illinois), and Halsted Ritter (1936, District of Southern Florida) on charges of favoritism in the appointment of bankruptcy receivers. But no one lost their robe because of that favoritism charge. While the Senate did remove Ritter from office for bringing “his court into scandal and disrepute,” it ironically acquitted him of all the articles enumerating what that scandal actually was.
More recently, in 2010, the House impeached Judge G. Thomas Porteous (Eastern District of Illinois) on charges of bribery and conflicts of interest during his tenure as a state and federal judge. Article I charged Porteous with failing to recuse himself from Lifemark Hospitals of Illinois, Inc. v. Liljeberg Enterprises, given his relationship with two lawyers at the firm Amato & Creely. In effect, Porteous:
failed to disclose that … [he] appointed Amato’s law partner as a “curator” in hundreds of cases and thereafter requested and accepted from Amato & Creely a portion of the curatorship fees which had been paid to the firm. During the period of this scheme, the fees received by Amato & Creely amounted to approximately $40,000, and the amounts paid by Amato & Creely to Judge Porteous amounted to approximately $20,000.
Meanwhile, shady dealings continued after the trial.
[W]hile he had the case under advisement … he solicited and accepted things of value from both Amato and his law partner Creely, including a payment of thousands of dollars in cash. Thereafter, and without disclosing his corrupt relationship with the attorneys of Amato & Creely PLC or his receipt from them of cash and other things of value, Judge Porteous ruled in favor of their client, Liljeberg.
But Porteous had cronies besides Amato and Creely to grease the bench. In particular, he had his bail bondsman Louis Marcotte III. As Article II describes:
As part of this corrupt relationship, Judge Porteous solicited and accepted numerous things of value, including meals, trips, home repairs, and car repairs, for his personal use and benefit, while at the same time taking official actions that benefitted the Marcottes. These official actions by Judge Porteous included, while on the State bench, setting, reducing, and splitting bonds as requested by the Marcottes, and improperly setting aside or expunging felony convictions for two Marcotte employees ….
Yesterday, Pelosi called on two House managers in Porteous’s case, Reps. Adam Schiff and Zoe Lofgren, to prosecute the case against Trump in the Senate.
Finally, there are the liars.
A common downfall of judges and presidents alike has been lying—whether to courts, to the FBI, or to Congress. In 1989, for example, the House adopted 17 articles against Alcee L. Hastings, then a federal judge for the Southern District of Florida and now a Democratic member of Congress who voted to impeach President Trump, mostly for perjury. Seven years prior, Hastings had been indicted for soliciting a $150,000 bribe in exchange for reducing the sentence of two felons. While he was ultimately acquitted in criminal court of the bribery, suspicions arose that he might have lied and falsified evidence to obtain the acquittal. A special committee of the U.S. Court of Appeals for the 11th Circuit began a probe, which, after three years, found Hastings guilty of perjury, tampering with evidence, and bribery. The House impeached him, and the Senate voted to remove Hastings from office.
But there was a hitch. Surprisingly, Hastings’s removal did not disqualify him from holding other government positions. He subsequently ran for Congress and is now the longest serving member of the Florida delegation.
That same year, Walter Nixon, a federal judge for the Southern District of Mississippi, was impeached after being convicted of lying to a federal grand jury about his efforts to benefit a wealthy friend’s son by influencing a prosecutor to delay investigating the son’s drug smuggling operation. Unlike Hastings, who was acquitted by a grand jury, Nixon went to prison, where he continued to collect his salary until he was formally impeached and removed from office.
Similarly, President Clinton was impeached on two charges—lying to a grand jury in 1999 and obstructing a federal investigation—though he was ultimately acquitted by the Senate. On each charge, a handful of Republicans joined a solid Democratic bloc in voting for acquittal: 55-45 for acquittal on the perjury charge; 50-50 on the obstruction charge.
Porteous was not only impeached for his dealings with his favorite bail bondsman and dinner companion. He was also charged with making false and misleading statements to the U.S. Senate and the FBI about his illicit relationships with attorneys. The Senate removed him and disqualified him from holding future office.
Over the years, the House of Representatives has used its power of impeachment to bring charges against a wide array of knaves, actual or alleged (and, sometimes, against political opponents) for wide-ranging acts and allegations. Though these charges lack precedential value in a legal and practical sense, they illustrate just how malleable an impeachable offense can be, proving, in the words of Gerald Ford, that an impeachable offense is “whatever a majority of the House of Representatives considers it to be at a given moment in history.”
But just because impeachment offenses cover broad political terrain doesn’t imply that all distinctions are irrelevant. After all, that Congress has found an offense impeachable doesn’t guarantee that the Senate will consider it sufficiently grave to warrant removal and/or disqualification. So, a better question perhaps is what kind of impeachment do we have now? Would we consider the decision to condition military aid on the investigation of a political rival to be more like Pickering’s drinking on the bench, a trivial, almost comical decision that will be ample fodder for wry jokes in 2050? Or would we consider it to be more like Humphreys’s and Blount’s behaviors, which, though perhaps comical in their wanton brazenness, involved the use of their power and station to undermine the U.S. government?