Censure
is a formal, and public, group condemnation of an individual, often a
group member, whose actions run counter to the group's acceptable
standards for individual behavior.
In the United States, governmental censure is done when a body's
members wish to publicly reprimand the President of the United States, a
member of Congress, a judge or a cabinet member. It is a formal
statement of disapproval.
The United States Constitution
specifically grants impeachment and conviction powers, respectively, to
the House of Representatives and Senate. It also grants both
congressional bodies the power to expel their own members, though it
does not mention censure. Congress adopted a resolution allowing
censure, which is "stronger than a simple rebuke, but not as strong as expulsion."
In general, each house of Congress is responsible for invoking censure
against its own members; censure against other government officials is
not common. Because censure is not specifically mentioned as the
accepted form of reprimand, many censure actions against members of
Congress may be listed officially as rebuke, condemnation, or
denouncement.
Members of Congress who have been censured are required to give
up any committee chairs they hold. Like a reprimand, a censure does not
remove a member from their office so they retain their title, stature,
and power to vote. There are also no legal consequences that come with a
reprimand or censure. The main difference is that a reprimand is
"considered a slap on the wrist and can be given in private and even in a
letter", while a censure is "a form of public shaming in which the
politician must stand before his peers to listen to the censure
resolution".
President Andrew Jackson was censured by the Senate in 1834. The censure was expunged in 1837.
There have been four cases in U.S. history where the House of Representatives or the Senate adopted a resolution that, in its original form, would censure the president. However, the censure of President Andrew Jackson "remains the clearest case of presidential censure by resolution". In 1834, while under Whig control, the Senate censured Jackson, a member of the Democratic Party, for withholding documents relating to his actions in defunding the Bank of the United States. During the waning months of Jackson's term, his Democratic allies succeeded in expunging the censure.
In 1860, the House of Representatives adopted a resolution admonishing both President James Buchanan and Secretary of the Navy Isaac Toucey
for allegedly rewarding contracts on the basis of "party relations."
The House may have intended this resolution as a lesser reprimand than a
formal censure.
In two other cases, the Senate adopted a resolution that was
originally introduced to censure the president, but that, in its final
form, did not overtly censure the president. In 1864, during the American Civil War, Senator Garrett Davis introduced a resolution to censure President Abraham Lincoln
for allowing two individuals to resume their service as generals after
winning election to Congress. The final resolution adopted by the Senate
required generals to be "re-appointed in the manner provided by the
Constitution," but did not overtly censure Lincoln. In 1912, Senator Joseph Weldon Bailey introduced a resolution censuring President William Howard Taft
for allegedly interfering with a disputed Senate election. The final
Senate resolution did not specifically refer to Taft, but stated that
presidential interference in a disputed Senate race would warrant
censure.
Other censure attempts
Several
other presidents have been subject to censure attempts in which no
formal resolution was adopted by either the House or the Senate. In 1800, RepresentativeEdward Livingston of New York introduced a censure motion against President John Adams. In 1842, Whigs attempted to impeach President John Tyler
following a long period of hostility with the president. When that
action could not get through Congress, a select Senate committee
dominated by Whigs censured Tyler instead. In 1848, Congressman George Ashmun led an effort to censure President James K. Polk, on the grounds that the Mexican–American War
had been "unnecessarily and unconstitutionally begun by the President."
The House of Representatives voted to add Ashmun's censure as an
amendment to a resolution under consideration by the House, but the
resolution itself was never adopted by the House. In 1871, Senator Charles Sumner introduced an unsuccessful resolution to censure President Ulysses S. Grant for deploying ships to the Dominican Republic without the approval of Congress. In 1952, Congressman Burr Powell Harrison introduced a resolution censuring President Harry S. Truman for seizing control of steel mills during the 1952 steel strike. The resolution ultimately did not receive a vote.
President Richard M. Nixon
was the subject of several censure resolutions introduced in the House
of Representatives; most of the resolutions were related to the Watergate scandal. In 1972, a resolution censuring Nixon for his handling of the Vietnam War was introduced. A separate series of censure resolutions were introduced after the "Saturday Night Massacre"
in October 1973. Another series of resolutions were introduced in July
1974. None of the resolutions were adopted, but Nixon resigned from
office in August 1974.
In 1998, resolutions to censure President Bill Clinton for his role in the Monica Lewinsky scandal were introduced and failed. The activist group MoveOn.orgoriginated in 1998,
after the group's founders began a petition urging the
Republican-controlled Congress to "censure President Clinton and move
on"—i.e., to drop impeachment proceedings, pass a censure of Clinton, and focus on other matters. From 2005 to 2007, members of Congress introduced several resolutions to censure President George W. Bush and other members of the Bush administration. Most of the resolutions focused on Bush's handling of the Iraq War,
but one resolution concerned the administration's "unlawful
authorization of wiretaps of Americans" and two others alleged that Bush
and Attorney General Alberto Gonzales
had violated "statutes, treaties, and the Constitution." From 2013 to
2016, members of Congress introduced several resolutions to censure
President Barack Obama.
These resolutions charged that Obama had usurped the "legislative power
of Congress” or had acted unlawfully. None of the resolutions to
censure Bush or Obama were adopted.
On August 18, 2017, a resolution was introduced in the House to censure President Donald Trump for his comments "that 'both sides' were to blame for the violence in" the Unite the Right rally. On January 18, 2018 another motion to censure Trump was introduced in the House of Representatives by Rep. Cedric Richmond (D), who at the time was the Chairman of the Congressional Black Caucus,
for Trump's remark, alleged by people in the room, stating "Why do we
want all these people from 'shithole countries' coming here?" According
to people in the room at the time, Trump was referring to people from Haiti and African nations coming to the United States of America. The censure motion failed to reach any legislative action.
This comment was alleged to have been made on January 11, 2018 in an
Oval Office meeting with lawmakers regarding immigration.
Senatorial censures
Senator Joseph McCarthy, one of ten U.S. Senators to be censured
The U.S. Senate has developed procedures for taking disciplinary
action against senators through such measures as formal censure or
actual expulsion from the Senate. The Senate has two basic forms of
punishment available to it: expulsion, which requires a two-thirds vote;
or censure, which requires a majority vote.
Censure is a formal statement of disapproval. While censure (sometimes
referred to as condemnation or denouncement) is less severe than
expulsion in that it does not remove a senator from office, it is
nevertheless a formal statement of disapproval that can have a powerful
psychological effect on a member and on that member's relationships in
the Senate.
In the history of the Senate, 10 U.S. Senators have been censured, the most famous being Joseph McCarthy.
Their transgressions have ranged from breach of confidentiality to
fighting in the Senate chamber and more generally for “conduct that
tends to bring the Senate into dishonor and disrepute”.
House censures
The House of Representatives is authorized to censure its own members
by the scope of United States Constitution (Article I, Section 5,
clause 2). In the House of Representatives, censure is essentially a form of public humiliation carried out on the House floor. As the Speaker of the House reads out a resolution rebuking a member for a specified misconduct, that member must stand in the House well and listen to it. This process has been described as a morality play in miniature.
In the history of the House, censure has been used 23 times, and most of the cases arose during the 19th century. In the modern history of the United States House Committee on Standards of Official Conduct (since 1966), censure has been used five times.
Cabinet censures
The first use of censure in the United States was directed at Alexander Hamilton, who was a member of George Washington's cabinet and accused of mishandling two Congressionally-authorized loans. Augustus Hill Garland, Attorney General in Grover Cleveland's administration, was censured in 1886 for failing to provide documents about the firing of a federal prosecutor.
Impeachment in the United States is the process by which a legislature (usually in the form of the lower house) brings charges against a civil officer of government for crimes alleged to have been committed, analogous to the bringing of an indictment by a grand jury. Impeachment may occur at the federal level or the state level. The federal House of Representatives can impeach federal officials, including the president, and each state's legislature can impeach state officials, including the governor, in accordance with their respective federal or state constitution.
Most impeachments
have concerned alleged crimes committed while in office, though there
have been a few cases in which officials have been impeached and
subsequently convicted for crimes committed prior to taking office. The impeached official remains in office until a trial is held. That trial, and their removal from office if convicted, is separate from the act of impeachment itself.
In impeachment procedings the defendant does not risk forfeiture of life, liberty, or property; according to the Constitution,
the only penalties upon conviction are removal from office, and
disqualification to hold and enjoy any office of honor, trust or profit
under the United States.
Federal impeachment
Constitutional provisions
According to the U.S. Senate: "if a federal official commits a crime
or otherwise acts improperly, the House of Representatives may
impeach—formally charge—that official. If the official subsequently is
convicted in a Senate impeachment trial, he is removed from office."
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.
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.
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.
Impeachable offenses: "Treason, Bribery, or other high Crimes and Misdemeanors"
The Constitution limits grounds of impeachment to "Treason, Bribery, or other high Crimes and Misdemeanors". The precise meaning of the phrase "high Crimes and Misdemeanors" is not defined in the Constitution itself.
The notion that only criminal conduct can constitute sufficient
grounds for impeachment does not comport with either the views of the
founders or with historical practice. Alexander Hamilton,
in Federalist 65, described impeachable offenses as arising from "the
misconduct of public men, or in other words from the abuse or violation
of some public trust." Such offenses were "political, as they relate chiefly to injuries done immediately to the society itself."
According to this reasoning, impeachable conduct could include behavior
that violates an official's duty to the country, even if such conduct
is not necessarily a prosecutable offense. Indeed, in the past both
houses of Congress have given the phrase "high Crimes and Misdemeanors" a
broad reading, finding that impeachable offenses need not be limited to
criminal conduct.
The purposes underlying the impeachment process also indicate
that non-criminal activity may constitute sufficient grounds for
impeachment.
The purpose of impeachment is not to inflict personal punishment for
criminal activity. Instead, impeachment is a "remedial" tool; it serves
to effectively "maintain constitutional government" by removing
individuals unfit for office.
Grounds for impeachment include abuse of the particular powers of
government office or a violation of the "public trust"—conduct that is
unlikely to be barred via statute.
In drawing up articles of impeachment, the House has placed little emphasis on criminal conduct.
Less than one-third of the articles that the House have adopted have
explicitly charged the violation of a criminal statute or used the word
"criminal" or "crime" to describe the conduct alleged.
Officials have been impeached and removed for drunkenness, biased
decision-making, or inducing parties to enter financial transactions,
none of which is specifically criminal. Two of the articles against President Andrew Johnson
were based on rude speech that reflected badly on the office: President
Johnson had made "harangues" criticizing the Congress and questioning
its legislative authority, refusing to follow laws, and diverting funds
allocated in an army appropriations act, each of which brought the
presidency "into contempt, ridicule, and disgrace". A number of individuals have been impeached for behavior incompatible with the nature of the office they hold.
Some impeachments have addressed, at least in part, conduct before the
individuals assumed their positions: for example, Article IV against
Judge Thomas Porteous related to false statements to the FBI and Senate in connection with his nomination and confirmation to the court.
On the other hand, the Constitutional Convention rejected
language that would have permitted impeachment for "maladministration,"
with Madison arguing that "[s]o vague a term will be equivalent to a
tenure during pleasure of the Senate."
Congressional materials have cautioned that the grounds for
impeachment "do not all fit neatly and logically into categories"
because the remedy of impeachment is intended to "reach a broad variety
of conduct by officers that is both serious and incompatible with the
duties of the office".
Congress has identified three general types of conduct that constitute
grounds for impeachment, although these categories should not be
understood as exhaustive:
improperly exceeding or abusing the powers of the office;
behavior incompatible with the function and purpose of the office; and
misusing the office for an improper purpose or for personal gain.
Conversely, not all criminal conduct is impeachable: in 1974, the
Judiciary Committee rejected an article of impeachment against President
Nixon alleging that he committed tax fraud, primarily because that
"related to the President's private conduct, not to an abuse of his
authority as President."
Several commentators have suggested that Congress alone may decide for itself what constitutes a "high Crime or Misdemeanor", especially since the Supreme Court decided in Nixon v. United States that it did not have the authority to determine whether the Senate properly "tried" a defendant. In 1970, then-House Minority LeaderGerald R. Ford
defined the criterion as he saw it: "An impeachable offense is whatever
a majority of the House of Representatives considers it to be at a
given moment in history."
Of the 17 impeachments voted by the House:
No official has been charged with treason. (In 1797, Senator
Blount was impeached for assisting Britain in capturing Spanish
territory. In 1862, Judge Humphries was impeached and convicted for
siding with the Confederacy and taking a position as a Confederate judge
during the Civil War.)
Three officials have been charged with bribery. Of those, two
proceeded to trial and were removed (Judge Archibald and Judge
Hastings); the other resigned prior to trial (Secretary Belknap).
The remaining charges against all the other officials fall under the category of "high Crimes and Misdemeanors".
The standard of proof
required for impeachment and conviction is also left to the discretion
of individual Representatives and Senators, respectively. Defendants
have argued that impeachment trials are in the nature of criminal
proceedings, with convictions carrying grave consequences for the
accused, and that therefore proof beyond a reasonable doubt
should be the applicable standard. House Managers have argued that a
lower standard would be appropriate to better serve the purpose of
defending the community against abuse of power, since the defendant does
not risk forfeiture of life, liberty, or property, for which the reasonable doubt standard was set.
Officers subject to impeachment: "civil officers of the United States"
The Constitution gives Congress the authority to impeach and remove
"The President, Vice President, and all civil officers of the United
States" upon a determination that such officers have engaged in treason,
bribery, or other high crimes and misdemeanors. The Constitution does
not articulate who qualifies as a "civil officer of the United States".
Federal judges are subject to impeachment. In fact, 15 of 19
officers impeached, and all eight officers removed after Senate trial,
have been judges. The most recent impeachment effort against a Supreme
Court justice that resulted in a House of Representatives investigation
was against Justice William O. Douglas. In 1970, Representative Gerald
Ford, who was then House minority leader, called for the House to
impeach Douglas. However, a House investigation led by Congressman
Emanuel Celler (D-NY) determined that Ford's allegations were baseless.
According to Professor Joshua E. Kastenberg at the University of New
Mexico, School of Law, Ford and Nixon sought to force Douglas off the
Court in order to cement the "Southern Strategy" as well as to provide
cover for the invasion of Cambodia. When their efforts failed, Douglas
remained on the Court.
Within the executive branch, any Presidentially appointed
"principal officer," including a head of an agency such as a Secretary,
Administrator, or Commissioner, is a "civil officer of the United
States" subject to impeachment.
At the opposite end of the spectrum, lesser functionaries, such as
federal civil service employees, do not exercise "significant
authority", and are not appointed by the President or an agency head.
These employees do not appear to be subject to impeachment, though that
may be a matter of allocation of House floor debate time by the Speaker,
rather than a matter of law.
The Senate has concluded that members of Congress
(Representatives and Senators) are not "civil officers" for purposes of
impeachment.
As a practical matter, expulsion is effected by the simpler procedures
of Article I, Section 5, which provides "Each House shall be the Judge
of the Elections, Returns and Qualifications of its own Members...
Each House may determine the Rules of its Proceedings, punish its
Members for disorderly Behaviour, and, with the Concurrence of two
thirds, expel a Member."
This allows each House to expel its own members without involving the
other chamber. In 1797, the House of Representatives impeached Senator William Blount of Tennessee,
The Senate expelled Senator Blount under Article I, Section 5, on the
same day. However, the impeachment proceeding remained pending
(expulsion only removes the individual from office, but conviction after
impeachment may also bar the individual from holding future office, so
the question of further punishment remained to be decided). After four
days of debate, the Senate concluded that a Senator is not a "civil
officer of the United States" for purposes of the Impeachment clause,
and dismissed for lack of jurisdiction. The House has not impeached a Member of Congress since Blount.
Procedure
At the federal level, the impeachment process is a three-step procedure.
Second, the House of Representatives
must pass, by a simple majority of those present and voting, articles
of impeachment, which constitute the formal allegation or allegations.
Upon passage, the defendant has been "impeached".
Third, the Senate tries the accused. In the case of the impeachment of a president, the Chief Justice of the United States
presides over the proceedings. For the impeachment of any other
official, the Constitution is silent on who shall preside, suggesting
that this role falls to the Senate's usual presiding officer, the President of the Senate, who is also the Vice President of the United States. Conviction in the Senate requires a two-thirds supermajority vote of those present. The result of conviction is removal from office.
Rules
A number of rules have been adopted by the House and Senate and are honored by tradition.
Jefferson's Manual, which is integral to the Rules of the House of Representatives,
states that impeachment is set in motion by charges made on the floor,
charges proffered by a memorial, a member's resolution referred to a
committee, a message from the president, or from facts developed and
reported by an investigating committee of the House. It further states
that a proposition to impeach is a question of high privilege in the
House and at once supersedes business otherwise in order under the rules
governing the order of business.
The House Practice: A Guide to the Rules, Precedents and Procedures of the House
is a reference source for information on the rules and selected
precedents governing the House procedure, prepared by the House
Parliamentarian. The manual has a chapter on the House's rules,
procedures, and precedent for impeachment.
In 1974, as part of the preliminary investigation in the Nixon
impeachment inquiry, the staff of the Impeachment Inquiry of the House
Judiciary Committee prepared a report, Constitutional Grounds for Presidential Impeachment.
The primary focus of the Report is the definition of the term "high
Crimes and Misdemeanors" and the relationship to criminality, which the
Report traces through history from English roots, through the debates at
the 1787 Constitutional Convention, and the history of the impeachments
before 1974.
The 1974 report has been expanded and revised on several
occasions by the Congressional Research Service, and the current version
Impeachment and Removal dates from October 2015.[1]
While this document is only staff recommendation, as a practical
matter, today it is probably the single most influential definition of
"high Crimes and Misdemeanors."
The Senate has formal Rules and Procedures of Practice in the Senate When Sitting on Impeachment Trials.
Calls for impeachment, and Congressional power to investigate
While the actual impeachment of a federal public official is a rare
event, demands for impeachment, especially of presidents, are common, going back to the administration of George Washington in the mid-1790s.
While almost all of them were for the most part frivolous and
were buried as soon as they were introduced, several did have their
intended effect. Treasury Secretary Andrew Mellon and Supreme Court Justice Abe Fortas both resigned in response to the threat of impeachment hearings, and, most famously, President Richard Nixon resigned from office after the House Judiciary Committee had already reported articles of impeachment to the floor.
In advance of the formal resolution by the full House to
authorize proceedings, committee chairmen have the same power for
impeachment as for any other issue within the jurisdiction of the
committee: to investigate, subpoena witnesses, and prepare a preliminary
report of findings. For example:
In 1970, House minority leader Gerald R. Ford attempted to initiate impeachment proceedings against Associate Justice William O. Douglas; the attempt included a 90-minute speech on the House floor. The House did not vote to initiate proceedings.
In 1973, the Senate Watergate hearings (with testimony from John Dean, and the revelation of the White House tapes by Alexander Butterfield) were held in May and June 1973, and the House Judiciary Committee authorized Chairman Rodino
to commence an investigation, with subpoena power, on October 30, 1973.
The full House voted to initiate impeachment proceedings on February 6,
1974, that is, after nine months of formal investigations by various
Congressional committees.
Targets of congressional investigations have challenged the power of
Congress to investigate before a formal resolution commences impeachment
proceedings. For example, President Buchanan wrote to the committee investigating his administration:
I do, therefore,... solemnly
protest against these proceedings of the House of Representatives,
because they are in violation of the rights of the coordinate executive
branch of the Government, and subversive of its constitutional
independence; because they are calculated to foster a band of interested
parasites and informers, ever ready, for their own advantage, to swear
before ex parte committees to pretended private conversations
between the President and themselves, incapable, from their nature, of
being disproved; thus furnishing material for harassing him, degrading
him in the eyes of the country...
He maintained that the House of Representatives possessed no general
powers to investigate him, except when sitting as an impeaching body.
When the Supreme Court has considered similar issues, it held that the power to secure "needed information... has long been treated as an attribute of the power to legislate....
[The power to investigate is deeply rooted in the nation's history:] It
was so regarded in the British Parliament and in the colonial
Legislatures before the American Revolution, and a like view has
prevailed and been carried into effect in both houses of Congress and in
most of the state Legislatures."
The Supreme Court also held, "There can be no doubt as to the power of
Congress, by itself or through its committees, to investigate matters
and conditions relating to contemplated legislation."
The Supreme Court considered the power of the Congress to
investigate, and to subpoena executive branch officials, in a pair of
cases arising out of alleged corruption in the administration of
President Warren G. Harding. In the first, McGrain v. Daugherty,
the Court considered a subpoena issued to the brother of Attorney
General Harry Daugherty for bank records relevant to the Senate's
investigation into the Department of Justice. Concluding that the
subpoena was valid, the Court explained that Congress's “power of
inquiry... is an essential and appropriate
auxiliary to the legislative function,” as “[a] legislative body cannot
legislate wisely or effectively in the absence of information respecting
the conditions which the legislation is intended to affect or change.”
The Supreme Court held that it was irrelevant that the Senate's
authorizing resolution lacked an “avow[al] that legislative action was
had in view” because, said the Court, “the subject to be investigated
was... [p]lainly [a] subject...
on which legislation could be had” and such legislation “would be
materially aided by the information which the investigation was
calculated to elicit.” Although “[a]n express avowal” of the Senate's
legislative objective “would have been better,” the Court admonished
that “the presumption should be indulged that [legislation] was the real
object.”
Two years later, in Sinclair v. United States,
the Court considered investigation of private parties involved with
officials under potential investigation for public corruption. In Sinclair,
Harry Sinclair, the president of an oil company, appealed his
conviction for refusing to answer a Senate committee's questions
regarding his company's allegedly fraudulent lease on federal oil
reserves at Teapot Dome in Wyoming. The Court, acknowledging
individuals’ “right to be exempt from all unauthorized, arbitrary or
unreasonable inquiries and disclosures in respect of their personal and
private affairs,” nonetheless explained that because “[i]t was a matter
of concern to the United States,” “the transaction purporting to lease
to [Sinclair’s company] the lands within the reserve cannot be said to
be merely or principally... personal.” The
Court also dismissed the suggestion that the Senate was impermissibly
conducting a criminal investigation. “It may be conceded that Congress
is without authority to compel disclosures for the purpose of aiding the
prosecution of pending suits,” explained the Court, “but the authority
of that body, directly or through its committees, to require pertinent
disclosures in aid of its own constitutional power is not abridged
because the information sought to be elicited may also be of use in such
suits.”
The Supreme Court reached similar conclusions in a number of other cases. In Barenblatt v. United States,
the Court permitted Congress to punish contempt, when a person refused
to answer questions while testifying under subpoena by the House
Committee on Un-American Activities. The Court explained that although
“Congress may not constitutionally require an individual to disclose his
… private affairs except in relation to” “a valid legislative purpose,”
such a purpose was present. Congress's “wide power to legislate in the
field of Communist activity... and to
conduct appropriate investigations in aid thereof[] is hardly
debatable,” said the Court, and “[s]o long as Congress acts in pursuance
of its constitutional power, the Judiciary lacks authority to intervene
on the basis of the motives which spurred the exercise of that power.”
Presidents have often been the subjects of Congress's legislative
investigations. For example, in 1832, the House vested a select
committee with subpoena power “to inquire whether an attempt was made by
the late Secretary of War... [to] fraudulently [award]... a contract for supplying rations” to Native Americans and to “further... inquire whether the President...
had any knowledge of such attempted fraud, and whether he disapproved
or approved of the same.” In the 1990s, first the House and Senate
Banking Committees and then a Senate special committee investigated
President and Mrs. Clinton's involvement in the Whitewater land deal and
related matters. The Senate had an enabling resolution; the House did
not.
The Supreme Court has also explained that Congress has not only
the power, but the duty, to investigate so it can inform the public of
the operations of government:
It is the proper duty of a representative body to look
diligently into every affair of government and to talk much about what
it sees. It is meant to be the eyes and the voice, and to embody the
wisdom and will of its constituents. Unless Congress have and use every
means of acquainting itself with the acts and the disposition of the
administrative agents of the government, the country must be helpless to
learn how it is being served; and unless Congress both scrutinize these
things and sift them by every form of discussion, the country must
remain in embarrassing, crippling ignorance of the very affairs which it
is most important that it should understand and direct. The informing
function of Congress should be preferred even to its legislative
function.
Impeachment proceedings may be requested by a member of the House of
Representatives on his or her own initiative, either by presenting a
list of the charges under oath or by asking for referral to the
appropriate committee. The impeachment process may be requested by non-members. For example, when the Judicial Conference of the United States suggests a federal judge be impeached, a charge of actions constituting grounds for impeachment may come from a special prosecutor, the President, or state or territorial legislature, grand jury, or by petition.
An impeachment proceeding formally begins with a resolution adopted by
the full House of Representatives, which typically includes a referral
to a House committee.
The type of impeachment resolution determines the committee to which it is referred. A resolution impeaching a particular individual is typically referred to the House Committee on the Judiciary. A resolution to authorize an investigation regarding impeachable conduct is referred to the House Committee on Rules,
and then to the Judiciary Committee. The House Committee on the
Judiciary, by majority vote, will determine whether grounds for
impeachment exist (this vote is not law and is not required, US
Constitution and US law). If the Committee finds grounds for
impeachment, it will set forth specific allegations of misconduct in one
or more articles of impeachment. The Impeachment Resolution, or
Articles of Impeachment, are then reported to the full House with the
committee's recommendations.
The House debates the resolution
and may at the conclusion consider the resolution as a whole or vote on
each article of impeachment individually. A simple majority
of those present and voting is required for each article for the
resolution as a whole to pass. If the House votes to impeach, managers
(typically referred to as "House managers", with a "lead House manager")
are selected to present the case to the Senate. Recently, managers have
been selected by resolution, while historically the House would
occasionally elect the managers or pass a resolution allowing the
appointment of managers at the discretion of the Speaker of the United States House of Representatives.
These managers are roughly the equivalent of the prosecution or
district attorney in a standard criminal trial. Also, the House will
adopt a resolution in order to notify the Senate of its action. After
receiving the notice, the Senate will adopt an order notifying the House
that it is ready to receive the managers. The House managers then
appear before the bar of the Senate and exhibit the articles of
impeachment. After the reading of the charges, the managers return and
make a verbal report to the House.
The proceedings unfold in the form of a trial, with each side having the right to call witnesses and perform cross-examinations.
The House members, who are given the collective title of managers
during the course of the trial, present the prosecution case, and the
impeached official has the right to mount a defense with his or her own
attorneys as well. Senators must also take an oath or affirmation that they will perform their duties honestly and with due diligence. After hearing the charges, the Senate usually deliberates in private. The Constitution requires a two-thirds supermajority to convict a person being impeached. The Senate enters judgment on its decision, whether that be to convict or acquit, and a copy of the judgment is filed with the Secretary of State.
Upon conviction in the Senate, the official is automatically removed
from office and may also be barred from holding future office. The trial
is not an actual criminal proceeding and more closely resembles a civil
service termination appeal in terms of the contemplated deprivation.
Therefore, the removed official may still be liable to criminal
prosecution under a subsequent criminal proceeding. The President may
not grant a pardon in the impeachment case, but may in any resulting
Federal criminal case.
Beginning in the 1980s with Harry E. Claiborne, the Senate began using "Impeachment Trial Committees" pursuant to Senate Rule XI.
These committees presided over the evidentiary phase of the trials,
hearing the evidence and supervising the examination and
cross-examination of witnesses. The committees would then compile the
evidentiary record and present it to the Senate; all senators would then
have the opportunity to review the evidence before the chamber voted to
convict or acquit. The purpose of the committees was to streamline
impeachment trials, which otherwise would have taken up a great deal of
the chamber's time. Defendants challenged the use of these committees,
claiming them to be a violation of their fair trial rights as this did
not meet the constitutional requirement for their cases to be "tried by
the Senate". Several impeached judges, including District Court JudgeWalter Nixon, sought court intervention in their impeachment proceedings on these grounds. In Nixon v. United States (1993), the Supreme Court determined that the federal judiciary could not review such proceedings, as matters related to impeachment trials are political questions and could not be resolved in the courts.
To convict an accused, "the concurrence of two thirds of the
[Senators] present" for at least one article is required. If there is no
single charge commanding a "guilty" vote of two-thirds supermajority of
the senators present, the defendant is acquitted and no punishment is
imposed.
Result of conviction: removal, and with an additional Senate vote, disqualification
Conviction immediately removes the defendant from office. Following
conviction, the Senate may vote to further punish the individual by
barring him or her from holding future federal office, elected or
appointed. As the threshold for disqualification is not explicitly
mentioned in the Constitution, the Senate has taken the position that
disqualification votes only require a simple majority rather than a
two-thirds supermajority. The Senate has used disqualification
sparingly, as only three individuals have been disqualified from holding
future office.
Conviction does not extend to further punishment, for example,
loss of pension. After conviction by the Senate, "the Party convicted
shall nevertheless be liable and subject to Indictment, Trial, Judgment
and Punishment, according to Law" in the regular federal or state
courts.
History of federal constitutional impeachment
In the United Kingdom, impeachment was a procedure whereby a member of the House of Commons could accuse someone of a crime. If the Commons voted for the impeachment, a trial would then be held in the House of Lords. Unlike a bill of attainder, a law declaring a person guilty of a crime, impeachments did not require royal assent, so they could be used to remove troublesome officers of the Crown even if the monarch was trying to protect them.
The monarch, however, was above the law and could not be impeached, or indeed judged guilty of any crime. When King Charles I was tried before the Rump Parliament of the New Model Army
in 1649 he denied that they had any right to legally indict him, their
king, whose power was given by God and the laws of the country, saying:
"no earthly power can justly call me (who is your King) in question as a
delinquent... no learned lawyer will
affirm that an impeachment can lie against the King." While the House of
Commons pronounced him guilty and ordered his execution anyway, the
jurisdictional issue tainted the proceedings.
With this example in mind, the delegates to the 1787 Constitutional Convention chose to include an impeachment procedure in Article II, Section4
of the Constitution which could be applied to any government official;
they explicitly mentioned the President to ensure there would be no
ambiguity. Opinions differed, however, as to the reasons Congress should
be able to initiate an impeachment. Initial drafts listed only treason
and bribery, but George Mason favored impeachment for "maladministration" (incompetence). James Madison
argued that impeachment should only be for criminal behavior, arguing
that a maladministration standard would effectively mean that the
President would serve at the pleasure of the Senate.
Thus the delegates adopted a compromise version allowing impeachment
for "treason, bribery and other high crimes and misdemeanors".
Formal federal impeachment investigations and results
The House of Representatives has initiated impeachment proceedings 62 times since 1789.
The House has impeached 20 federal officers. Of these:
Of the 20 impeachments by the House, two cases did not come to trial
because the individuals had left office, seven were acquitted, and eight
officials were convicted, all of whom were judges. One, former judge Alcee Hastings, was elected as a member of the United States House of Representatives after being removed from office.
Additionally, an impeachment process against Richard Nixon was commenced, but not completed, as he resigned from office before the full House voted on the articles of impeachment. To date, no president or vice president has been removed from office by impeachment and conviction.
The following table lists federal officials for whom impeachment
proceedings were instituted and referred to a committee of the House of
Representatives. Numbered lines of the table reflect officials impeached by a majority vote of the House. Unnumbered
lines are those officials for whom an impeachment proceeding was
formally instituted, but ended when (a) the Committee did not vote to
recommend impeachment, (b) the Committee recommended impeachment but the
vote in the full House failed, or (c) the official resigned or died
before the full House vote.
One of the first attempts to implement such a political system was perhaps Pythagoras' "city of the wise" that he planned to build in Italy together with his followers, the order of "mathematikoi". In modern history, similar concepts were introduced by Vladimir Vernadsky, who did not use this term, but the term "noosphere".
As defined by Plato, noocracy is considered to be the future political system for the entire human race, replacing democracy ("the authority of the crowd") and other forms of government.
Mikhail Epstein
defined noocracy as "the thinking matter increases its mass in nature
and geo- and biosphere grow into noosphere, the future of the humanity
can be envisioned as noocracy—that is the power of the collective brain
rather than separate individuals representing certain social groups or
society as whole".
Rationales for noocracy
Irrationality of voters
Supporters
of the noocratic theory mainly depart from the empirical evidence that
most voters in modern democracies are largely ignorant, misinformed and
irrational. Therefore, one person one vote
mechanism proposed by democracy cannot be used to produce efficient
policy outcomes, for which the transfer of power to a smaller, informed
and rational group would be more appropriate. The irrationality of
voters inherent in democracies can be explained by two major behavioral
and cognitive patterns. Firstly, most of the voters think that the
marginal contribution of their vote will not make a difference on
election outcomes; therefore, they do not find it useful to inform
themselves on political matters.
In other terms, due to the required time and effort of acquiring new
information, voters rationally prefer to remain ignorant. Moreover, it
has been shown that most citizens process political information in
deeply biased, partisan, motivated ways rather than in dispassionate,
rational ways.
This psychological phenomenon causes voters to strongly identify
themselves with a certain political group, specifically find evidence to
support arguments aligning with their preferred ideological
inclinations, and eventually vote with a high level of bias.
Democracy's susceptibility for bad policies
Irrational
political behaviors of voters prevent them from making calculated
choices and opting for the right policy proposals. On the other hand,
many political experiments have shown that as voters get more informed,
they tend to support better policies, demonstrating that acquisition of
information has a direct impact on rational voting. For example, Martin
Gilens notes in his research that low-income democrats tend to have more
intolerant thoughts pertinent to LGBT rights, whereas high-income
democrats have the opposite preferences.
Moreover, supporters of noocracy see a greater danger in the fact that
politicians will actually prefer to implement the policy decisions of
citizens to win elections and stabilize their power, without paying
particular attention to the content and further outcomes of these
policies.
In democracies, the problem is thus not only that voters are prone to
make bad policy decisions, but also that politicians are incentivized to
implement these policies due to personal benefits. Therefore, noocrats
argue that it makes sense to limit the voting power of citizens in order
to prevent bad policy outcomes.
Use of expertise for efficient outcomes
According
to noocrats, given the complex nature of political decisions, it is not
reasonable to assume that a citizen would have the necessary knowledge
to decide on means to achieve their political aims. In general,
political actions require a lot of social scientific knowledge from
various fields, such as economics, sociology, international relations,
and public policy; however, an ordinary voter is hardly specialized
enough in any of those fields to make the optimal decision. To address
this issue, Christiano proposes a ruling system based on division of
political labor, in which citizens set the agenda for political
discussions and determine the aims of the society, whereas legislators
are in charge of deciding on the means to achieve these aims.
For noocrats, transferring the decision-making mechanism to a body of
specifically trained, specialized and experienced body is expected to
result in superior and more efficient policy outcomes. Recent economic
success of some countries that have a sort of noocratic ruling element
provides basis for this particular argument in favor of noocracy.
For instance, Singapore has a political system that favors
meritocracy; the path to government in Singapore is structured in such a
way that only those with above-average skills are identified with
strict university-entrance exams, recruiting processes, etc., and then
rigorously trained to be able to devise best the solutions that benefit
the entire society. In the words of country’s founding father, Lee Kuan
Yew, Singapore is a society based on effort and merit, not wealth or
privilege depending on birth.
This system primarily works due to citizens’ belief that political
leaders tend to have a better understanding of country’s long-term plans
than themselves; therefore, as they see positive policy outcomes, they
tend to go along with the system, rather than complain about the
meritocratic dimensions. For example, most citizens praise their
government in Singapore, stating that it managed to transform Singapore
from a third world country to a developed economy, and that it
successfully fostered loyalty in its citizens towards the country and
gave birth to a unique concept of Singaporean citizenship despite a
great level of ethnic diversity. In order to develop further Singapore’s
technocratic system, some thinkers, like Parag Khanna, have proposed
for the country to adapt a model of direct technocracy, demanding
citizen input in essential matters through online polls, referenda,
etc., and asking for a committee of experts to analyze this data to
determine the best course of action.
Criticisms
Noocracies, like technocracies, have been criticized for meritocratic
failings, such as upholding of a non-egalitarian aristocratic ruling
class. Others have upheld more democratic ideals as better epistemic
models of law and policy. Noocracy criticisms come in multiple forms,
two of which are those focused on the efficacy of noocracies and the
political viability of them.
Criticisms of noocracy in all its forms - including technocracy, meritocracy, and epistocracy (the focus of Jason Brennan's
oft-cited book) - range from support of direct democracy instead to
proposed alterations to our consideration of representation in
democracy. Professor Hélène Landemore, while arguing for representatives
to effectively enact legislation important to the polity, criticizes
conceptions of representation that aim especially to remove the people
from the process of making decisions, and thereby nullify their
political power. Noocracy, especially as it is conceived in Jason Brennan's Against Democracy,
aims specifically to separate the people from the decision on the basis
of the immensely superior knowledge of officials who will presumably
make superior decisions to laypeople.
Noocracy as anti-democratic
Jason
Brennan's epistocracy, specifically, is at odds with what is commonly
considered the supreme form of government - democracy - and with certain
criteria for democracies that theorists have proposed. Robert Dahl's Polyarchy
sets out certain rules for democracies that govern many people and the
rights that the citizens must be granted. His demand that the government
not discriminatorily heed the preferences of full members of the polity
is abridged by Brennan's "restricted suffrage" and "plural voting"
schemes of epistocracy.
In the eighth chapter of his book, Brennan posits a system of graduated
voting power that gives people more votes based on established levels
of education achieved, with the amount of additional votes granted to a
hypothetical citizen increasing at each level, from turning sixteen to
completing high school, a bachelor's degree, a master's degree, and so
forth.
Dahl wrote, however, that any democracy that rules over a large group
of people must accept and validate "alternative sources of information."
Granting the full powers of citizenship based on a system like formal
education attainment does not account for the other ways that people can
consume information, is the commonly cited argument, and still eschews
consideration for the uneducated within a group.
Inefficiency of experts
Noocracy
also receives criticism for its claims to efficiency. Brennan writes
that one of the many reasons that common people cannot be trusted to
make decisions for the state is because reasoning is commonly motivated,
and, therefore, people decide what policies to support based on their
connection to those proposing and supporting the measures, not based on
what's most effective. He contrasts real people with the
ultra-reasonable vulcan that he mentions throughout the book. That vulcan reflects Plato's philosopher king and, in a more realistic sense, the academic elites whom Michael Yong satirized in his essay The Rise of the Meritocracy.
Modern political theorists don't necessarily denounce a biased
viewpoint in politics, however, though those biases are not written
about as they are commonly considered. Professor Landemore utilizes the
existence of cognitive diversity to argue that any group of people that
represents great diversity in their approaches to problem-solving
(cognition) is more likely to succeed than groups that do not.
She further illustrates her point by employing the example of a New
Haven task force made up of private citizens of many careers,
politicians, and police who needed to reduce crime on a bridge without
lighting, and they all used different aspects of their experiences to
discover the solution that was to install solar lamps on the bridge.
That solution has proven effective, with not a single mugging reported
there since the lamp installation as of November 2010.
Her argument lies mainly in the refutation of noocratic principles, for
they do not utilize the increased problem solving skill of a diverse
pool, when the political system because as debate between elites alone,
and not a debate between the whole polity.
To some theorists, noocracy is built on a fantasy that will
uphold current structures of elite power, while maintaining its
inefficacy. Writing for the New Yorker, Caleb Crain notes that there's little to say that the vulcans that Brennan exalt actually exist.
Crain mentions a study that appears in Brennan's book that shows that
even those who have proven that they have superb skills in mathematics
do not employ those skills if their use threatens their already-held
political belief. While Brennan utilized that study to demonstrate how
deeply rooted political tribalism is in all people, Crain drew on this
study to question the very nature of an epistocratic body that can make
policy with a greater regard to knowledge and truth than the ordinary
citizen can.
The only way to correct for that seems, to many, to be to widen the
circle of deliberation (as discussed above) because policy decisions
that were made with more input and approval from the people last longer
and even garner the agreement of the experts.
To further illustrate that experts, too, are flawed, Cairn enumerates
some of the expert-endorsed political decisions that he has deemed
failures in recent years: "invading Iraq, having a single European
currency, grinding subprime mortgages into the sausage known as
collateralized debt obligations."
With the contention around the reasoning for those political
decisions, political theorist David Estlund posited what he considered
to be one of the prime arguments against epistocracy - bias in choosing
voters.
His fear was that the method by which voters, and voters' quantity of
votes, was chosen might be biased in a way that people had not been able
to identify and could not, therefore, rectify.
Even the aspects of the modes of selecting voters that are known cause
many theorists concern, as both Brennan and Cairn note that the majority
of poor black women would be excluded from the enfranchised polity and
risk seeing their needs represented even less than they currently are.
Rejection of demographic unjustness of noocracy
Proponents of democracy attempt to show that noocracy is intrinsically unjust on two dimensions, using the unfairness and bad results
arguments. The former states that since people with different income
levels and education backgrounds have unequal access to information, the
epistocratic legislative body will be naturally composed of citizens
with higher economic status, and thus fail to equally represent
different demographics of the society. The latter argument is about the
policy outcomes; since there will be a demographic overrepresentation
and underrepresentation in the noocratic body, the system will produce
unjust outcomes, favoring the demographically advantaged group. Brennan defends noocracy against these two criticisms, presenting a rationale for the system.
As a rejection of the unfairness argument put forward by
democrats, Brennan argues that the voting electorate in modern
democracies is also demographically disproportionate; based on empirical
studies, it has been demonstrated that voters coming from privileged
background, such as white, middle aged, higher-income men, tend to vote
at a higher rate than other demographic groups. Although de jure every group has same right to vote under one person one vote
assumption, de facto practices show that privileged people have more
influence on election results. As a result, the representatives will not
match the demographics of the society either, for which democracy seems
to be unjust in practice. With the right of type of noocracy, the
unfairness effect can actually be minimized; for instance,
enfranchisement lottery, in which a legislative electorate is selected
at random by lottery, and then incentivized to become competent to
address political issues, illustrates a fair representation methodology
thanks to its randomness.
To refute the latter claim, Brennan states that voters do not
vote selfishly; in other terms, the advantaged group does not attempt to
undermine the interests of the minority group.
Therefore, the worry that noocratic bodies that are demographically
more skewed towards the advantaged group make decisions in favor of the
advantaged one fails. According to Brennan, noocracy can serve in a way
that improves the welfare of the overall community, rather than certain
individuals
