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Investigating the President: the Supreme Court and the impeachment process
Tulsa Law Journal (1999)
  • Martin H. Belsky, University of Akron School of Law

The Constitutional procedure for investigating the President is relatively simple and straightforward. The process begins in the House of Representatives, “which shall have the sole Power of Impeachment.” As a matter of tradition, the House has employed its Judiciary Committee to investigate and report on charges made against the President. After their recommendation, the House, by majority vote, can refer any or all charges to the Senate for trial. The Senate “shall have the sole Power to try all Impeachments.” The Chief Justice presides over the trial and conviction requires the vote of two-thirds of those senators present.

The maximum penalty available to the Senate is removal from office and potential disqualification from holding any further public office. Of course, conviction of impeachment does not preclude indictment, trial, judgement and punishment for offenses in accordance with law. The offenses that serve as the basis for removal are similarly simple but vague. They are “Treason, Bribery, or other High Crimes and Misdemeanors.” The Constitution does not indicate what burden of proof is required for impeachment or conviction. In fact, it does not define what *290 activities are included within the phrase “High Crimes and Misdemeanors” to justify an impeachment or later conviction.

Except for the explicit requirements in the Constitution, the procedures and standards of impeachment are left first to the House of Representatives and then to the Senate. Clearly, it is inconceivable that a court would overturn any conviction and removal of a President by the Senate because of faulty procedures. As one commentator noted, “ t here are ten rules about judicial review of the judgements of the Senate on impeachments. The first rule is that the courts have, in this, no part to play. The other nine rules don't matter.” This doctrine should apply to all aspects of the impeachment process, not just the judgement. Undoubtedly, it is in the area of impeachment in which the Supreme Court should find a political question precluding judicial review.

This article suggests the Supreme Court has significantly, but indirectly, gotten involved in the impeachment process. It is true that the Court has given a clear indication that the impeachment and trial procedures are non-justiciable political questions. Still, in a series of decisions going back to United States v. Nixon hereinafter Watergate Tapes case, the Court has consistently minimized Presidential immunities in judicial proceedings and supported broad power to judicially supervise investigations of Presidential conduct. These investigations in turn have become the modern mechanism for pre-impeachment Congressional review.

  • President,
  • impeachment
Publication Date
Citation Information
Martin H. Belsky, Investigating the President: the Supreme Court and the impeachment process, 34 Tulsa Law Journal 289 (1999).