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Constitutional Grounds for Presidential Impeachment:
Forward and Introduction

The following is from a report written and released by the Judiciary Committee in 1974 in the aftermath of the Watergate crisis.

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Foreword

I am pleased to make available a staff report regarding the constitutional grounds for presidential impeachment prepared for the use of the Committee on the Judiciary by the legal staff of its impeachment inquiry.

It is understood that the views and conclusions contained in the report are staff views and do not necessarily reflect those of the committee or any of its members.

Peter W. Rodino, Jr.
February 22, 1974

I. Introduction

The Constitution deals with the subject of impeachment and conviction at six places. The scope of the power is set out in 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.
Other provisions deal with procedures and consequences. Article I, Section 2 states:

The House of Representatives... shall have the sole Power of Impeachment.

Similarly, Article I, Section 3, describes the Senate's role:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

The same section limits the consequences of judgement in cases of impeachment:

Judgement in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law.

Of lesser significance, although mentioning the subject, are: Article II, Section 2:

The President... shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

Article III, Section 2:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury....

Before November 15, 1973 a number of Resolutions calling for the impeachment of President Richard M. Nixon had been introduced in the House of Representatives, and had been referred by the Speaker of the House, Hon. Carl Albert, to the Committee on the Judicicary for consideration, investigation, and report. On November 15, anticipating the magnitude of the Committee's task, the House voted funds to enable the Committee to carry out its assignment and in that regard to select an inquiry staff to assist the Committee.

On February 6, 1974, the House of Representatives by a vote of 410 to 4 "authorized and directed" the Committee on the Judiciary "to investigate fully and completely whether sufficient grounds exist for the House of Representatives to exercise its consitutional power to impeach Richard M. Nixon, President of the United States of America."

To implement the authorization (H.Res.803) the House also provided that "For the purpose of making such investigation the committee is authorized to require... by subpoena or otherwise... the attendance and testimony of any person... and... the production of such things; and... by interrogatory, the furnishing of such information, as it deems necessary to such investigation."

This was but the second time in the history of the United States that the House of Representatives resolved to investigate the possibility of impeachment of a President. Some 107 years earlier the House had investigated whether President Andrew Johnson should be impeached. Understandably, little attention or thought has been given the subject of the presidential impeachment process during the intervening years. The Inquiry Staff, at the request of the Judiciary Committee, has prepared this memorandum on constitutional grounds for presidential impeachment. As the factual investigation progresses, it will become possible to state more specifically the constitutional, legal, and conceptual framework within which the staff and the Committee work.

Delicate issues of basic consitutional law are involved. Those issues cannot be defined in detail in advance of full investigation of the facts. The Supreme Court of the United States does not reach out, in the abstract, to rule on the constitutionality of statutes or of conduct. Cases must be brought and adjudicated on particular facts in terms of the Constitution. Similarly, the House does not engage in abstract advisory or hypothetical debates about the precise nature of conduct that calls for the exercise of its constitutional powers; rather it must await full development of the facts and understanding of the events to which those facts relate.

What is said here does not reflect any prejudgement of the facts or any opinion or inference respecting the allegations being investigated. This memorandum is written before completion of the full and fair factual investigation the House directed be undertaken. It is intended to be a review of the precedents and available interpretive materials, seeking general principles to guide the Committee.

This memorandum offers no fixed standards for determining whether grounds for impeachment exist. The framers did not write a fixed standard. Instead they adopted from English history a standard sufficiently general and flexible to meet future circumstances and events, the nature and character of which they could not foresee.

The House has set in motion an unusual constitutional process, conferred solely upon it by the Constitution, by directing the Judiciary Committee to "investigate fully and completely whether sufficient grounds exist for the House of Representatives to exercise its constitutional power to impeach." This action was not partisan. It was supported by the overwhelming majority of both political parties. Nor was it intended to obstruct or weaken presidency. It was supported by Members firmly committed to the need for a strong presidency and a healthy executive branch of our government. The House of Representatives acted out of a clear sense of constitutional duty to resolve issues of a kind that more familiar constitutional processes are unable to restore.

To assist the Committee in working toward that resolution, this memorandum reports upon the history, purpose and meaning of the constitutional phrase, "Treason, Bribery, or other high Crimes and Misdemeanors."

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