A primary goal of the Founders was to protect the people from a strong federal government. They accomplished this with a series of checks and balances where all three branches received relatively equal strength and gave each branch the ability to check each other’s powers. As an additional check on the power of government, the Founders created impeachment clauses. These clauses were not meant to be used lightly or as weapons against the other branches; they were established to give a degree of protection against impeachment. Initially its power was divided between the two branches of the Legislature.
In his defense of the Constitution, Alexander Hamilton wrote in Federalists No. 66, “The division of them between the two branches of the Legislature, assigning to one the right of accusing, to the other the right of judging, avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution, from the prevalence of a factious spirit in either of those branches. As the concurrence of two thirds of the Senate will be requisite to a condemnation, the security to innocence, from this additional circumstance, will be as complete as itself can desire.”
As we have previously seen, Article I, Section II of the Constitution gives the House of Representatives the power to impeach any government official, but that only means they see enough evidence for a trial. The second part of impeachment — the actual trial — is held in the Senate. With this division, both houses of Congress must be on board in order for any removal from office.
Article I, Section III, Clause VI reads, “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.”
Vesting the impeachment power almost solely in the Legislature shows the importance the Founders placed on this one branch. While the three branches are supposed to be equal, it is clear the Legislature is meant to be a bit more equal. Evidence of this is in practice; the Legislature was clearly the strongest of the branches in the 19th century. It’s not until the 20th century that presidents slowly but surely began to strip away power.
With the current issue of President Trump asking for the impeachment of District Judge James Boasberg, it is worth investigating the intent of the Legislature’s ability to impeach. It would seem to make sense to vest the Judiciary Branch with impeachment, they are judges after all. Yet, as it’s the president who appoints judges, it seemed like a conflict of interest if the Supreme Court had to judge the president or anyone in the Executive Branch. The other issue with the Court is that justices are appointed for life. Senators can be replaced in the next election; judges cannot. Impeachment is the only tool available to remove judges.
Hamilton, in Federalist No. 81, took on the question of how to limit the power of the Judicial Branch. In trying to convince the people of New York to accept the Constitution, he claimed that the Court can occasionally overstep its authority but not to the degree of harming the nation. “Particular misconstructions and contraventions of the will of the Legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system,” he wrote. The reason being that if the judges try to go too far, they can be impeached, “And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body entrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations.”
In other words, it seems as though Hamilton is suggesting Congress use impeachment as the main check on the courts if justices try to wield too much authority. Would Hamilton apply this to judges blocking President Trump? There is no evidence that he would, and presidents at that time did not use executive orders the way they do now. As already seen, this was meant to build the power of the Legislative Branch.
Congress almost has all the power when it comes to impeachment. The one exception is when the president is tried for impeachment, then the Chief Justice of the Supreme Court presides instead of the vice president. It does not make sense to have the vice president preside over a trial that has the ability to make him the next president.
Finally, when it comes to sentencing, Clause VII states, “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.”
In other words, the most the Senate can do is remove the convicted person from their position and, if they choose, can disqualify them from holding office again. They cannot imprison anyone on criminal changes, but that person can be criminally charged by the proper authorities afterwards.
A couple of important notes. First the courts have, in recent years, ruled that presidents have immunity from criminal acts Trump v. United States, 2024. Secondly, notice that disqualification from future positions is only an option, not a requirement. If the majority of the Senate does not agree on disqualification, the impeached person can run for any office again, including the president.
James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He can be reached at HistoricallySpeaking1776@gmail.com.
