An Affair of State: The Investigation, Impeachment, and Trial of President Clinton

By Richard A. Posner | Go to book overview

CHAPTER 3 The History, Scope, and Form of Impeachment

History and Scope

The Constitution provides that the President and other federal officials shall be removed from office, and may be barred from holding a federal office in the future, upon impeachment by a majority vote of the House of Representatives and conviction by a two-thirds vote of the Senate of treason, bribery, or "other high Crimes and Misdemeanors."1 The Senate may not impose any additional sanctions, although the impeached and convicted official remains liable to punishment in the ordinary course of criminal justice.2

The meaning of the quoted language is critical to whether President Clinton committed impeachable offenses. And since "high Crimes and Misdemeanors" is not defined in the Constitution and is not modern terminology (in modern legal parlance, a misdemeanor is a minor crime, generally a crime for which the maximum punishment is a year in prison), it is natural, though not necessarily fruitful, to look to history for guidance. Another possibly critical issue besides the meaning of the quoted phrase, one on which the constitutional text is also silent, is what procedures should be followed in an impeachment and in particular what standard of proof should govern the Senate's trial of an impeached official--whether guilt must be proved beyond a reasonable doubt, as in a criminal trial, or whether a lesser degree of certitude is sufficient.3 It is natural to seek help with the answers to these questions, too, in history.

____________________
1
U.S. Const., art. II, § 4; see also art. I, § 2, cl. 5; § 3, cl. 6.
2
Art. I, § 3, cl. 7.
3
The Senate has adopted "Rules of Procedure and Practice in the Senate When Sitting

-95-

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An Affair of State: The Investigation, Impeachment, and Trial of President Clinton
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Dramatis Personae vii
  • Chronology ix
  • Introduction 1
  • Chapter 1 the President's Conduct 16
  • Chapter 2 Prosecution and Defense 59
  • Chapter 3 the History, Scope, and Form of Impeachment 95
  • Chapter 4 Morality, Private and Public 133
  • Chapter 5 Should President Clinton Have Been Impeached, and If Impeached Convicted? 170
  • Chapter 6 the Kulturkampf 199
  • Chapter 7 Lessons for the Future 217
  • Chapter 8 the Balance Sheet 262
  • Acknowledgments 267
  • Index 269
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