Impeachment in the United States

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Impeachment_in_the_United_States

 

The 1999 impeachment trial of President Bill Clinton, Chief Justice William Rehnquist presiding

 

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."

There are several provisions in the United States Constitution relating to impeachment: 

Article I, Section 2, Clause 5 provides:

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

Article I, Section 3, Clauses 6 and 7 provide:

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.

Article II, Section 2 provides:

[The President] ... shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

Article II, Section 4 provides:

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 Leader Gerald 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.

• First, the Congress investigates. This investigation typically begins in the House Judiciary Committee, but may begin elsewhere. For example, the Nixon impeachment inquiry began in the Senate Judiciary Committee. The facts that led to impeachment of Bill Clinton were first discovered in the course of an investigation by Independent Counsel Kenneth Starr.
• 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.
• Other examples are discussed in the article on Impeachment investigations of United States federal officials.

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.

House of Representatives: Impeachment

First day of the Judiciary Committee's formal impeachment hearings against President Nixon, May 9, 1974

 

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.

Senate trial

Depiction of the impeachment trial of President Andrew Johnson in 1868, Chief Justice Salmon P. Chase presiding.

 

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 Judge Walter 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.

In theory at least, as President of the Senate, the Vice President of the United States could preside over his own impeachment, although legal theories suggest that allowing a defendant to be the judge in his own case would be a blatant conflict of interest. If the Vice President did not preside over an impeachment (of anyone besides the President), the duties would fall to the President pro tempore of the Senate. 

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, Section 4 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:

• 15 were federal judges: thirteen district court judges, one court of appeals judge (who also sat on the Commerce Court), and one Supreme Court Associate Justice.
• three were Presidents: Andrew Johnson and Bill Clinton were later acquitted by the Senate, and Donald Trump, who is awaiting trial.
• one was a Cabinet secretary
• one was a U.S. Senator.

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.

Noocracy

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Noocracy

 

Noocracy (/noʊˈɒkrəsi/ or /ˈnoʊ.əkrəsi/), or "aristocracy of the wise", as originally defined by Plato, is a system of governance where decision making is in the hands of philosophers, similar to his idea of Philosopher kings. The idea was further expanded upon by geologist Vladimir Vernadsky, and philosophers (who attended Vernadsky's lectures) Pierre Teilhard de Chardin and Édouard Le Roy, and their concept of the Noosphere.

Etymology

The word itself is derived from Greek nous, Gen. noos (νους) meaning "mind" or "intellect", and "kratos" (κράτος), "authority" or "power". 

Development

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

Judicial activism

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Judicial_activism

 

Judicial activism refers to judicial rulings that are suspected of being based on personal opinion, rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism and the specific decisions that are activist are controversial political issues. The question of judicial activism is closely related to constitutional interpretation, statutory construction, and separation of powers.

Etymology

Arthur Schlesinger Jr. introduced the term "judicial activism" in a January 1947 Fortune magazine article titled "The Supreme Court: 1947".

The phrase has been controversial since its beginning. An article by Craig Green, "An Intellectual History of Judicial Activism," is critical of Schlesinger's use of the term; "Schlesinger's original introduction of judicial activism was doubly blurred: not only did he fail to explain what counts as activism, he also declined to say whether activism is good or bad."

Even before this phrase was first used, the general concept already existed. For example, Thomas Jefferson referred to the "despotic behaviour" of Federalist federal judges, in particular Chief Justice John Marshall.

Definitions

A survey of judicial review in practice during the last three decades shows that 'Judicial Activism' has characterised the decisions of the Supreme Court at different times. 

Black's Law Dictionary defines judicial activism as a "philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions."

Political science professor Bradley Canon has posited six dimensions along which judge courts may be perceived as activist: majoritarianism, interpretive stability, interpretive fidelity, substance/democratic process, specificity of policy, and availability of an alternate policymaker. David A. Strauss has argued that judicial activism can be narrowly defined as one or more of three possible actions: overturning laws as unconstitutional, overturning judicial precedent, and ruling against a preferred interpretation of the constitution.

Others have been less confident of the term's meaning, finding it instead to be little more than a rhetorical shorthand. Kermit Roosevelt III has argued that "in practice 'activist' turns out to be little more than a rhetorically charged shorthand for decisions the speaker disagrees with"; likewise, the solicitor general under George W. Bush, Theodore Olson, said in an interview on Fox News Sunday, in regards to a case for same-sex marriage he had successfully litigated, that "most people use the term 'judicial activism' to explain decisions that they don't like." Supreme Court Justice Anthony Kennedy has said that, "An activist court is a court that makes a decision you don't like."

Debate

Detractors of judicial activism charge that it usurps the power of the elected branches of government or appointed agencies, damaging the rule of law and democracy. Defenders of judicial activism say that in many cases it is a legitimate form of judicial review, and that the interpretation of the law must change with changing times. 

A third view is that so-called "objective" interpretation of the law does not exist. According to law professor Brian Z. Tamanaha, "Throughout the so-called formalist age, it turns out, many prominent judges and jurists acknowledged that there were gaps and uncertainties in the law and that judges must sometimes make choices." Under this view, any judge's use of judicial discretion will necessarily be shaped by that judge's personal and professional experience and his or her views on a wide range of matters, from legal and juridical philosophy to morals and ethics. This implies a tension between granting flexibility (to enable the dispensing of justice) and placing bounds on that flexibility (to hold judges to ruling from legal grounds rather than extralegal ones). 

Some proponents of a stronger judiciary argue that the judiciary helps provide checks and balances and should grant itself an expanded role to counterbalance the effects of transient majoritarianism, i.e., there should be an increase in the powers of a branch of government which is not directly subject to the electorate, so that the majority cannot dominate or oppress any particular minority through its elective powers. Other scholars have proposed that judicial activism is most appropriate when it restrains the tendency of democratic majorities to act out of passion and prejudice rather than after reasoned deliberation.

Moreover, they argue that the judiciary strikes down both elected and unelected official action, in some instances acts of legislative bodies reflecting the view the transient majority may have had at the moment of passage and not necessarily the view the same legislative body may have at the time the legislation is struck down. Also, the judges that are appointed are usually appointed by previously elected executive officials so that their philosophy should reflect that of those who nominated them, that an independent judiciary is a great asset to civil society since special interests are unable to dictate their version of constitutional interpretation with threat of stopping political donations. 

United States examples

The following rulings have been characterized as judicial activism.

• Brown v. Board of Education – 1954 Supreme Court ruling ordering the desegregation of public schools.
• Roe v. Wade - 1973 Supreme Court ruling creating the constitutional right to an abortion.
• Bush v. Gore – The United States Supreme Court case between the major-party candidates in the 2000 presidential election, George W. Bush and Al Gore. The justices voted 5–4 to halt the recount of ballots in Florida and, as a result, George Bush was chosen as president.
• District of Columbia v. Heller - 2008 Supreme Court decision affirming that the Second Amendment protects an individual right, unrelated to military service, to keep and bear arms.
• Citizens United v. Federal Election Commission – 2010 Supreme Court decision declaring Congressionally enacted limitations on corporate political spending and transparency as unconstitutional restrictions on free speech.
• Hollingsworth v. Perry – 2013 decision by federal judge Vaughn R. Walker overturning California's constitutional amendment to ban same-sex marriage.
• Obergefell v. Hodges – 2015 Supreme Court decision declaring same-sex marriage as a right guaranteed under the Due Process Clause and the Fourteenth Amendment.
  

Outside the United States

While the term was first coined and is often used in the United States, it has also been applied in other countries, particularly common law jurisdictions.

India

India has a recent history of judicial activism, originating after the emergency in India which saw attempts by the Government to control the judiciary. Public Interest Litigation was thus an instrument devised by the courts to reach out directly to the public, and take cognizance though the litigant may not be the victim. "Suo motu" cognizance allows the courts to take up such cases on its own. The trend has been supported as well criticized. New York Times author Gardiner Harris sums this up as India’s judges have sweeping powers and a long history of judicial activism that would be all but unimaginable in the United States. In recent years, judges required Delhi’s auto-rickshaws to convert to natural gas to help cut down on pollution, closed much of the country’s iron-ore-mining industry to cut down on corruption and ruled that politicians facing criminal charges could not seek re-election. Indeed, India’s Supreme Court and Parliament have openly battled for decades, with Parliament passing multiple constitutional amendments to respond to various Supreme Court rulings.

All such rulings carry the force of Article 39A of the Constitution of India, although before and during the Emergency the judiciary desisted from "wide and elastic" interpretations, termed Austinian, because Directive Principles of State Policy are non-justiciable. This despite the constitutional provisions for judicial review and B R Ambedkar arguing in the Constituent Assembly Debates that "judicial review, particularly writ jurisdiction, could provide quick relief against abridgment of Fundamental Rights and ought to be at the heart of the Constitution."

Fundamental Rights as enshrined in the Constitution have been subjected to wide review, and have now been said to encompass a right to privacy, right to livelihood and right to education, among others. The 'basic structure' of the Constitution has been mandated by the Supreme Court not to be alterable, notwithstanding the powers of the Legislature under Article 368. This was recognized, and deemed not applicable by the High Court of Singapore in Teo Soh Lung v. Minister for Home Affairs. 

Recent examples quoted include the order to Delhi Government to convert the Auto rickshaw to CNG, a move believed to have reduced Delhi's erstwhile acute smog problem (it is now argued to be back) and contrasted with Beijing's.

Israel

The Israeli approach to judicial activism has transformed significantly in the last three decades, and currently presents an especially broad version of robust judicial review and intervention. Additionally, taking into consideration the intensity of public life in Israel and the challenges that the country faces (including security threats), the case law of the Israeli Supreme Court touches on diverse and controversial public matters.