Impeachment Trial (Senate)

Three constitutional requirements

1. Oath or affirmation. Senators must swear to "do impartial justice according to the Constitution and laws." First adopted for the Senator Blount trial (1798); largely unchanged since. Story contrasts this with the English House of Lords, which tries impeachments on peers' "honor" rather than oath, and calls the English practice "a strange anomaly," since even a peer must be sworn to give ordinary witness testimony: "Why should the obligation of a judge be less solemn, than the obligation of a witness?" (§ 774).
2. Two-thirds vote to convict. Ensures removal is not a purely partisan exercise. A simple majority can impose disqualification from future federal office as a separate vote after conviction. Story could find no Convention record stating the specific reason for the two-thirds threshold, but conjectures it was meant "to secure an impartial trial, and to guard public men from being sacrificed to the immediate impulses of popular resentment or party predominance" — contrasted with the House of Lords, which convicts by bare majority (§§ 776-777).
3. Chief Justice presides when the President is tried. Prevents the Vice President from presiding over proceedings that could elevate him. Story is explicit that this was "not founded on any supposition, that the chief justice would be superior in confidence, and firmness, and impartiality, to the residue of the judges... but on the necessity of excluding the vice president from the chair, when he might have a manifest interest, which would destroy his impartiality" (§ 759). Exception in practice: the President pro tempore presided over the second Trump trial (2021) because Trump was a former President.

Story: why an impeachment court must be separate from the accuser

Story opens his treatment of this clause with the structural premise it answers — a body cannot fairly be both prosecutor and judge:

"It is obviously incorrect in theory, and against the general principles of justice, that the same tribunal should at once be the accusers and the judges; that they should first decide upon the verity of the accusation, and then try the offenders." — Joseph Story, Commentaries on the Constitution § 741 (1833)

He traces the practice from Germanic tribal councils, through Greek and Roman republics where "the people were, at the same time, the accusers and the judges" (a design he says trampled "the best safeguards of the rights and lives of the citizens"), to the English split between the Commons (accuser) and Lords (judge) that the Constitution's House/Senate division tracks (§ 742).

Story states the four qualities a tribunal must combine to try impeachments fairly, then asks whether the Senate meets them:

"The great objects, to be attained in the selection of a tribunal for the trial of impeachments, are, impartiality, integrity, intelligence, and independence. If either of these is wanting, the trial must be radically imperfect." — Joseph Story, Commentaries on the Constitution § 743 (1833)

He does not treat the choice as free of difficulty — impeachment reaches "public men in violation of their public trust," a category he calls inescapably political, prone to being decided "more by the comparative strength of parties, than by the real proofs of innocence or guilt" (§ 744) — but concludes the Convention, working from the English model and several state constitutions already using the same split, "came to the result, that the senate was the most fit depositary of this exalted trust," a judgment he calls neither "a rash and novel experiment" nor "free from all plausible objections" (§ 746).

The four objections to Senate trial, and Story's answers

Story's own catalog of the ratification-era objections to giving the Senate this role, and his point-by-point rebuttal:

"The principal objections were as follows: (1.) That the provision confounds the legislative and judiciary authorities in the same body... (2.) That it accumulates an undue proportion of power in the senate... (3.) That the efficiency of the court will be impaired by the circumstances, that the senate has an agency in appointment to office. (4.) That its efficiency is still further impaired by its participation in the functions of the treaty-making power." — Joseph Story, Commentaries on the Constitution § 746 (1833)

Story answers the first three relatively briefly: a partial intermixture of legislative and judicial power is not per se objectionable (§ 747); no power is "undue" merely because it is large, if it is safe in operation, and Great Britain's own experience with the House of Lords as a court of impeachment shows no history of the power being abused (§ 749); and the Senate's role confirming appointments creates only an attenuated, secondhand bias, since senators seldom have personal knowledge of the nominees they confirm and staggered six-year terms mean the confirming senators are often gone by the time of any later trial (§ 750). The fourth objection — that a Senate which ratified a corrupt treaty could not impartially try the president or minister who negotiated it — Story calls the most "plausible," but answers by distinguishing an innocently deceived Senate (which would feel betrayal, not sympathy, toward the deceiver) from a genuinely corrupt Senate, a hypothetical he treats as too extreme to design constitutional structure around:

"The truth is, that all arguments of this sort, which suppose a combination of the public functionaries to destroy the liberty of the people, and the powers of the government, are so extravagant, that they go to the overthrow of all delegated power." — Joseph Story, Commentaries on the Constitution § 753 (1833)

Alternatives considered and rejected

Story tests three other possible impeachment tribunals against the Senate. The Supreme Court alone (§§ 755-767): rejected chiefly on Hamilton's argument, quoted at length, that the Court would lack the numbers and the standing "confidence enough in its own situation" to withstand a clash with the people's own representatives —

"Where else, than in the senate, could have been found a tribunal sufficiently dignified, or sufficiently independent? ... It is much to be doubted, whether the members of that tribunal would, at all times, be endowed with so eminent a portion of fortitude, as would be called for in the exercise of so difficult a task." — The Federalist, quoted in Joseph Story, Commentaries on the Constitution § 756 (1833)

— to which Story adds his own grounds: political offenses are judged best by statesmen, not lawyers (§ 762); judicial forms of proceeding are ill-suited to political trials (§ 763); judges owe their appointment to the same executive whose conduct they might have to judge (§ 765); and a Court asked to try one of its own members would face the same "corporation spirit" problem the Senate faces, without the Senate's compensating size (§ 766). A joint Supreme Court/Senate tribunal (§ 768) is rejected as combining the objections to both without clear compensating advantage. A specially constituted tribunal (§§ 769-770), whether of permanent national officers or state functionaries convened for the purpose, is rejected on practical grounds — expense, the difficulty of assembling members from across the Union without delay that would help the guilty and harm the innocent, and (if state officers) surrendering national impeachment to state control. Story closes by adopting Rawle's formulation as his own conclusion:

"[N]one will be found more suitable to exercise this peculiar jurisdiction, than the senate... [W]e can discover in no other division of the government a greater probability of impartiality and independence." — Rawle, quoted in Joseph Story, Commentaries on the Constitution § 773 (1833)

Forty years, four trials

Writing in 1833, Story treats the Senate's actual track record — four completed trials (Blount 1798, Pickering 1803, Chase 1804, Peck 1831), three acquittals and one conviction — as empirical vindication of the design:

"At the distance of forty years, we may look back upon this reasoning with entire satisfaction. The senate has been found a safe and effective depositary of the trial of impeachments... No reproach has ever reached the senate for its unfaithful discharge of these high functions." — Joseph Story, Commentaries on the Constitution § 778 (1833)

Story's own procedural walkthrough

Story's account of 1830s impeachment-trial mechanics, later formalized into Senate rules but not themselves constitutionally required: the House investigates and votes to impeach, then presents a demand at the Senate bar and prepares formal articles (§§ 805-806); the respondent files a written answer, to which the House files a written replication (§§ 808-809); trial proceeds "substantially" as an ordinary judicial trial as to evidence and witness examination (§ 809); and the Senate votes article by article in open session, each senator polled by name — "Mr. —, how say you, is the respondent guilty, or not guilty of a high crime and misdemeanor, as charged in the article of impeachment?" (§ 809). Story also notes the pardon power does not reach impeachment judgments, so "when once pronounced, they become absolute and irreversible" (§ 809) — the same rule Art. II sec. 2 cl. 1's pardon exception states directly.

Originalist note

Story's four-part test (impartiality, integrity, intelligence, independence) is original-meaning evidence for why the Framers rejected judicial trial of impeachments and gave it instead to a body distinct from the accusing House — it supplies the reasoning behind the bare structural fact the clause states. Story's fuller treatment also directly answers the modern "why the Senate and not a court" question underlying the Nixon nonjusticiability holding: the Framers considered and rejected judicial trial for reasons (numbers, political competence, freedom from the appointing/confirming executive) that remain a live originalist gloss on why "try" was deliberately left to the Senate's own judgment rather than a court's.

Nonjusticiability — Nixon v. United States (1993)

Nixon v. United States (1993): the Court unanimously held that challenges to Senate impeachment-trial procedures are nonjusticiable political questions. The word "try" is textually committed to the Senate for interpretation and lacks sufficient precision for judicial review. Given that the Constitution specifies three precise requirements, the Framers "did not intend to impose additional limitations on the form of the Senate proceedings by the use of the word 'try.'"

Procedural discretion

• Rule XI (1935): permits a committee to take and report evidence. First used for Judge Claiborne (1986). Contemporary practice for judicial impeachments: Senate appoints a special trial committee, which reports to the full Senate for deliberation and vote.
• Evidence reception varies: Johnson trial (1868): 40+ live witnesses. Clinton trial (1999): 3 witnesses via videotaped deposition. Both Trump trials: no witness testimony (though the second trial saw a stipulation of Rep. Herrera Beutler's public statement).
• Rules adopted during the Johnson trial have remained largely unchanged.

Presidential trials

The Senate has tried three Presidents — none convicted.

Andrew Johnson (1868). Impeached for violating the Tenure of Office Act (removing Secretary of War Stanton without Senate approval). Johnson's counsel argued the law was unconstitutional and its meaning unclear. Acquitted by one vote. Established that impeachment is not appropriate for policy disagreements; reserved for serious abuse of office. The Tenure of Office Act was later invalidated in Myers v. United States, 272 U.S. 52 (1926).

Bill Clinton (1999). The investigation began with the Whitewater real-estate inquiry (Independent Counsel Kenneth Starr, appointed 1994) and expanded, by order of the D.C. Circuit's Special Division, to cover the President's conduct in the Paula Jones civil suit and his relationship with Monica Lewinsky. Starr referred his findings to the House on September 9, 1998; the House Judiciary Committee recommended four articles (perjury before the grand jury, perjury in the Jones deposition, obstruction of justice, and abuse of office for false responses to Congress), but the full House approved only the first and third. Acquitted on both February 12, 1999. Significance debated: some read the acquittal as evidence that impeachment reaches only distinctly public misconduct — Senator Olympia Snowe (R) voted to acquit, calling the conduct "lowly" but the perjury evidence insufficiently proven; Senator Byron Dorgan (D) called the conduct "reprehensible" but not "a grave danger to the nation." Others read it as vindicating the underlying misconduct as impeachable in kind, if not proven in fact — Senator Richard Lugar (R) voted to convict, framing the case as obstruction — the President "lied to a federal grand jury and worked to induce others to give false testimony" — and "not about adultery." The House Judiciary Committee majority had argued perjury was impeachable "even if committed with regard to matters outside his official duties"; the minority argued impeachment reaches only "conduct that constitutes an egregious abuse or subversion of the powers of the executive office." See Impeachment of Executive Officers Clause for this indictable-crime/private-conduct debate traced across Nixon, Clinton, and Trump.

Donald Trump (2020, 2021). Impeached twice — the only President tried and acquitted twice.

• First trial (2020): charged with abuse of power (soliciting Ukraine to investigate a political opponent) and obstruction of Congress (categorically defying subpoenas). Acquitted 48–52 and 47–53. The trial exposed an unresolved dispute over whether "high Crimes and Misdemeanors" requires an indictable crime: House managers argued it did not, consistent with past practice; the President's counsel argued the articles failed because they alleged no crime at all. Senate votes to acquit rested on mixed reasoning — some Senators (Cruz, Perdue, Cornyn) treated the absence of an alleged crime as dispositive, while Majority Leader McConnell voted to acquit while explicitly rejecting the theory that impeachment requires one. The Senate separately declined to authorize subpoenas for additional witnesses, including former National Security Advisor John Bolton — only 49 Senators voted in favor, short of a majority — limiting the trial record to evidence already gathered by the House.
• Second trial (2021): charged with incitement of insurrection following the January 6 Capitol breach. Acquitted 57–43 — a majority voted to convict, but short of the two-thirds threshold. Seven members of the President's party voted to convict. Trial occurred after Trump left office; President pro tempore presided rather than the Chief Justice. The defense invoked the First Amendment, arguing the President's rally remarks were "core free speech." House managers responded on two fronts: first, that "[t]he First Amendment has no application in an impeachment proceeding," which does not punish unlawful speech but protects the nation from an official who "violated his oath of office and abused the public trust"; second, that even if the Amendment applied, it would not protect calls to violence falling within the unprotected category of speech "directed to inciting or producing imminent lawless action" (citing Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) — see Incitement Doctrine). Only one acquitting Senator cited the First Amendment in his floor statement; Senator Dan Sullivan called the managers' theory a "breathtaking precedent" threatening political speech generally, while Senator Chuck Schumer countered that "[t]he First Amendment right to free speech protects Americans from jail, not Presidents from impeachment."

Impeachment judgments (Art. I §3 cl. 7)

"Judgment 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, Judgment and Punishment, according to Law." — U.S. Const. art. I, § 3, cl. 7

Removal. Conviction triggers automatic removal from office under Art. II §4. Eight officials have been convicted and removed — seven federal district judges and one Commerce Court judge (Robert Archbald, 1913).

Disqualification. The Senate may, by a separate simple-majority vote after conviction, bar the individual from holding future federal office. Disqualification is discretionary; the Senate has imposed it in some but not all convictions. The two-thirds threshold applies only to the conviction vote itself.

Criminal prosecution. The Clause expressly preserves criminal liability. Impeachment and criminal prosecution serve distinct purposes and may proceed independently. In Hastings v. United States Senate (1988), Judge Alcee Hastings argued that his subsequent criminal acquittal barred the Senate from trying the impeachment articles. The Senate rejected this claim. The D.C. Circuit declined to intervene, and Hastings was convicted and removed. He later won election to the House — the Constitution does not bar a removed official from running for office unless the Senate separately votes to disqualify.

Former officials. The second Trump trial (2021) tested whether a former President can be tried after leaving office. The Senate voted 56–44 that it retained jurisdiction. Proponents argued that allowing resignation or term expiration to moot impeachment would render the disqualification power meaningless for late-term misconduct. Opponents argued the text of Art. II §4 limits impeachment to sitting "civil Officers." The Senate ultimately acquitted 57–43 on the merits, so the jurisdictional question produced no binding precedent — but the majority vote on jurisdiction established a strong Senate practice.

Historical boundary cases

• Senator Blount (1798): first impeachment. Senate dismissed charges; no Member of Congress has been impeached since.

contradiction

Blount impeachment date vs. Impeachment power of the House This entry labels the Blount episode "(1798)," but Impeachment power of the House dates the House's impeachment vote to 1797, with the Senate trial running Dec. 1798–Jan. 1799 and dismissal in 1799. "1798" here appears to describe the trial (consistent with the oath entry above, "First adopted for the Senator Blount trial (1798)"), not the impeachment vote itself. Needs reconciliation.

• Justice Samuel Chase (1805): acquitted. Established that disagreement with a judge's judicial philosophy is not impeachable.
• Framers' structural logic: placing both accusation and adjudication in Congress keeps impeachment as "a bridle in the hands of the legislative body" (Hamilton, Federalist No. 65). Dividing the two functions between chambers guards against "the prevalency of a fractious spirit in either" body (Federalist No. 66).