Presidential Impeachment: An Effective Check on Executive Power?

In 1787, at the Constitutional Convention in Philadelphia, the framers created the new position of president to lead the new executive branch. This figure would be quite powerful, with the role of commander-in-chief of the military, chief executive of a growing bureaucracy, and chief diplomat who gave a singular voice of America to foreign countries. As chief executive, this president would appoint judges to fill all judicial vacancies. He would also be able to pardon those convicted of federal crimes. How could such a powerful man be prevented from becoming corrupt or tyrannical? To prevent these eventualities, the framers gave Congress the ability to impeach the president. Is it an effective check on the president’s power?

The United States Constitution of 1787, drafted in secret in Philadelphia, was printed for the American public and caused quite a stir. Instead of merely reforming the Articles of Confederation, the nation’s original founding charter, the Constitution created a new central government. One of its most controversial portions was Article II: the chief executive. Under the Articles, the United States had no chief executive. Now, it was proposed that a single man should have tremendous power to act swiftly in times of emergency and serve as a singular voice of the nation.

To alleviate skepticism and fear, The Federalist Papers explained how the Constitution would prevent such a powerful man from becoming corrupt or tyrannical. Federalist Paper No. 70 defended the role of a singular executive and argued that the elected figure needed to be able to act decisively. Would the checks and balances in the Constitution to prevent a tyrannical president, specifically the Electoral College and the process of impeachment, be sufficient to prevent a popular chief executive from becoming a dictator? Over time, these questions became more pressing as the power of the president continuously expanded.

The Process of Impeachment

Impeachment is famously an intra-branch check as well as an inter-branch check. Executives and federal judges may be impeached, but the two chambers of Congress have different roles. The US House of Representatives votes to impeach, and then the US Senate holds the trial (which is presided over by the Chief Justice of the US Supreme Court). Removal from office requires a two-thirds majority vote in the Senate. This two-step process with such a high threshold for guilt is intended to check a potentially radical Congress: only a clearly guilty executive or federal judge is likely to be removed from office under such rigor.

Most Americans only hear about impeachment in regard to the president. However, other executives and federal judges have been impeached and are actually impeached more often than presidents. Five men were impeached prior to the first presidential impeachment in 1868, four of them federal judges and one a former US senator. Since then, eleven federal judges and two cabinet secretaries (members of the executive branch) have been impeached, compared to four impeachments of US presidents.

Impeachments also occur in state governments, with most states’ impeachment rules similar to those of the federal government. Only Oregon does not allow impeachment of its chief executive, the governor. State impeachments are rare, with the most recent newsworthy one occurring in Texas in September 2023. The state’s Attorney General was acquitted in an impeachment trial, with fewer than two-thirds of state senators voting to convict. Since the nation’s founding, fewer than twenty state governors and several state officials like sheriffs, treasurers, and commissioners have been impeached.

A Misconception: Expulsion Versus Impeachment

During intensely partisan elections, it is not uncommon for people to declare that a member of Congress should be impeached. Technically, members of Congress cannot be impeached; only members of the other two branches are subject to the process. These legislators can be expelled, with each chamber—the House of Representatives and the Senate—requiring a two-thirds vote to expel a member. Unlike the process of impeachment, an expulsion vote does not require a trial-like hearing. There are usually hearings before the expulsion vote, however, to present evidence against the targeted member.

On December 1, 2023, US Representative George Santos of New York became the twenty-first member of Congress to be expelled, thereby making congressional expulsion about as common (or uncommon) as federal impeachment. Both presidents and members of Congress can be censured, or formally rebuked, by one or both chambers of Congress. It is rare for anyone other than a member of that congressional chamber to be censured, which is only a symbolic punishment. One punishment between a censure and expulsion is involuntary removal from committee assignments, where a US representative or US senator is removed from their committees (and thus cannot influence bills).

In 1864, Republican US President Abraham Lincoln chose southern Democrat Andrew Johnson as his running mate to show support for southerners and Democrats who had remained loyal to the Union during the American Civil War (1861-65). Lincoln won re-election but was assassinated only months into his second term, thrusting Johnson into the presidency. Quickly, Johnson—a native of Tennessee—became unpopular with most Lincoln supporters in Washington DC by treating the defeated Confederacy leniently. Unfortunately, Southern states appeared to take advantage of Johnson’s leniency by quickly crafting black codes to return most formerly enslaved people into states of bondage.

A hostile relationship developed between Democratic President Johnson and a Republican supermajority in Congress. With their two-thirds majority, Republicans in Congress began overriding Johnson’s vetoes of Reconstruction legislation. After Johnson fired a cabinet secretary in violation of a law passed by Congress, the US House of Representatives voted to impeach a president for the first time. On March 4, 1868, Johnson’s trial began in the Senate, where he managed to win some favor. Ultimately, the president avoided expulsion by a single vote. The election that autumn did not see Johnson as the Democratic presidential nominee; he was replaced by Horatio Seymour, who lost to Republican nominee Ulysses S. Grant.

The Canceled Impeachment: Richard Nixon

A little over a century later, a second US president incurred the wrath of Congress. Republican chief executive Richard Nixon, having won a second term in 1972 in a landslide, was exposed as having covered up his campaign’s break-in of Democratic Party offices in the Watergate office complex. As more evidence came out that Nixon knew about the cover-up, the president took action to thwart investigations into him in the Saturday Night Massacre of April 1973. Nixon fired the prosecutor looking into his actions, leading the Attorney General to resign.

In response to the Saturday Night Massacre, Congress began looking at articles of impeachment. On July 27, 1974, the US House of Representatives adopted three articles of impeachment against the president. Republicans in Congress informed Nixon that the party would not support him, meaning he would likely be convicted in the Senate and, therefore, expelled from office. Days later, Richard Nixon became the first—and so far, only—president to resign from office. Although Nixon was not impeached, the impending impeachment led directly to his decision to resign rather than face trial.

A quarter century later, a Democratic president found himself squaring off against opponents in Congress. Similar to Richard Nixon, US President Bill Clinton had recently won re-election by a very solid margin. In January 1998, the news cycle erupted when it was revealed that Clinton had had an extramarital affair with a White House intern. The affair was bad enough, but the fact that it was with a subordinate added increased ethical and legal implications. Republicans quickly moved to investigate the president’s actions. In August, Clinton publicly admitted to the affair, which he had previously denied…under oath.

By denying the affair under oath before Congress, Clinton had allegedly committed perjury. In December 1998, the House of Representatives passed two articles of impeachment against the president, one for perjury and one for obstruction of justice. Clinton was put on trial in the Senate on January 7, 1999. Controversially, the Senate chose not to allow live witnesses in the trial, just depositions. On February 12, Clinton was acquitted when fewer than two-thirds of the US Senate voted to convict him on both counts.

Summary: Impeachment as a (Weak) Check

Three US presidents have been impeached, with a fourth resigning before he could be so charged. Thanks to the high bar for conviction, all three impeached presidents have been acquitted. Critics of impeachment argue that the two-thirds requirement for conviction is too high given the two-party system that roughly divides power in both the House and the Senate between the two parties. This system almost guarantees that at least fifteen senators would have to cross party lines to convict someone in an impeachment trial. Because the US president is the de facto head of their political party, this is very unlikely.

Essentially, impeachment is only likely to remove a president in the case of extreme corruption or tyranny that is well-documented. Only the case of Richard Nixon met this bar; other presidents still retained the support of their respective political parties. However, having two recent presidential impeachments, followed by the impeachment of a cabinet secretary, may increase the strength of the impeachment check on presidential corruption by showing that the House of Representatives will not hesitate to use this power. If impeachments become more common, they may check presidential wrongdoing—even if conviction is not a real threat—due to bad press alone.