Does Precedent Require the House to Pass an Impeachment Inquiry Resolution?

It is a tiresomely repeated talking point that the current impeachment investigation in the House of Representatives is unconstitutional, violative of House rules, and in conflict with “bipartisan precedent.” As the first of these claims have been repeatedly and decisively refuted, I will here only take a little more detailed look than has been common at the precedent claim, which, turns out to be unsupported by history.

Impeachment and the Presidents

Here are the results of a quick search of occasions on which there has been impeachment action of one sort of another by Congress against a president. If an official impeachment inquiry requires a House resolution for inquiry naming impeachment as its purpose or even one of its purposes, then it has not been the general rule.

Buchanan. The full House established a special committee to investigate allegations of corruption in the Buchanan administration. The resolution did not mention impeachment and did not establish any procedures for the conduct of the inquiry. Journal of the House of Representatives, March 5, 1860, pp. 450-51. The committee’s investigations were extensive and it documented significant corruption. Drawing on the evidence produced the committee considered an impeachment resolution, voting it down.

Johnson: In the 1867 impeachment attempt, a House Resolution, without mentioning impeachment, directed the Judiciary Committee to investigate Johnson’s conduct in general as to “the execution of the laws.” Pursuant to this the committee collected evidence and heard witnesses. It reached the impeachment question, which lost by one vote. Later that year the committee reversed itself, but the House vote went against impeachment. When the next year Johnson removed Secretary of War Stanton, the House moved quickly to vote impeachment, working out the details of the articles later.

Truman: The resolution to impeach Truman over his firing of General McArthur was referred to the House Judiciary Committee. The Senate Committee on Armed Services and the Committee on Foreign Relations held hearings as to whether Truman exceeded his powers.

Nixon. There was a House “Impeachment Inquiry” vote in Nixon’s case. However, this vote was far from the beginning of congressional investigation of Watergate and the president. The Senate Select Senate Committee as well as the Special Prosecutor, with subpoena power, had been investigating vigorously and publicly for more than 7 months before that House vote. 5 months before the vote, an impeachment resolution had been referred to the House Judiciary Committee, and that committee had its own active impeachment inquiry underway for 3 months before the House vote. In reliance on this particular precedent, the White House could raise the issue of an Impeachment Inquiry vote in a few months.

Clinton: There was also a House “Impeachment Inquiry” vote on Clinton in October 1998. This was even more of an after-the-fact exercise than it had been in the Nixon case. Special Prosecutor Starr began his extraordinarily broad investigation of alleged Clinton misdeeds in 1994. In September 1998, having made full use of subpoenas, the grand jury, and immunity agreements, Starr submitted his over 400 page report and 18 boxes of evidence to the House, outlining 11 grounds for impeaching the president. In effect, that was the Impeachment Inquiry. The highlights of the Judiciary Committee’s own hearings were testimony by Starr and by constitutional law scholars. 81 questions were propounded to Clinton by the Chairman, which,incidentally, he answered. The committee voted the last of its impeachment articles on December 12, 1988.

George W. Bush: No impeachment inquiry vote was taken. An impeachment resolution was referred to the Judiciary Committee. 

Obama: The House Judiciary Committee held a hearing on December 3, 1913, in which the President Obama’s impeachment was proposed and supported by witnesses and, more circumspectly, by committee members. There had been no whole House vote.

Impeachment and Other Officers

There is a single clause in the Constitution authorizing the impeachment of federal officers: “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.” Article 2 Section 4.

The only respect in which impeachment of the president is constitutionally distinguished is that the trial of the President in the Senate is presided over by the Chief Justice. Article 1, Section 3, Clause 6.  (Well, there is also one ground on which a president, but no other officer, might be impeached: the Presidential Emolument Clause. For that clause and its bearing on Air Force payments to Trump’s Turnberry Resort, see my post of 9/19/19.)

So, if we are looking for precedents on impeachment procedure in the House, we must caste the net a little wider than the presidential impeachment inquiries. 

There have been a total of about 60 impeachment proceedings in the House of Representatives, mostly of federal court judges. I will take a look at a few of the more recent non-presidential impeachment cases in reverse chronological order. 

In 2015 and 2016, Republican resolutions to impeach IRS Commissioner John Koskinen were referred to the House Judiciary Committee, which held hearings. There was no House “Impeachment Inquiry” resolution. 

In the case of Judge Thomas Porteous, in 2010, a whole House Impeachment Inquiry vote was taken, although not until the Judiciary Committee had been at work on the case for three months.

In 2009, Judge Samuel B. Kent was impeached and convicted, the whole House having authorized the Judiciary Committee to conduct the inquiry that led to the articles of impeachment.

In 1986-1989 three judges were impeached, Harry Claiborne, Alcee Hastings, and Walter L Nixon. There was no House “Inquiry Proceeding” vote in any of these cases – despite the fact that the Judiciary Committee then lacked the authority to issues subpoenas that it now has.

In 1953 and again in 1970 there were serious attempts in the House to remove William O. Douglas from the Supreme Court. In the first instance the charge was based on Douglas’s having granted a brief stay of the Rosenberg execution. The resolution to impeach was referred to the Judiciary Committee, a subcommittee then conducted an impeachment hearing, but there the matter died. 

In 1970, Minority Leader Ford took another run at Douglas, based in part on business dealings with semi-shady characters, but more on his “liberal biases” as evidenced both by his judicial opinions and his personal life. A resolution to impeach was referred to committee. In this instance, however, there were also later tendered to the House no fewer than eight explicit Impeachment Inquiry resolutions calling for a Special Committee. None of the 8 was passed; all were simply referred to the Rules Committee. The hearings that were held, including testimony before a special subcommittee of the Judiciary Committee, were, then, without benefit of any whole House Impeachment Inquiry vote – despite that option’s having been so energetically and repeatedly pressed.

In 1966, the House voted to create a special committee to investigate judicial discipline and the conduct of Judges Stephen Chandler, Luther Bohanan, and Alfred Murrah. The committee was set up by H.R. Res. 739, 89th Cong. This resolution did not mention “impeachment.” It did, however, direct the Judiciary Committee “to inquire into and investigate the official conduct” of the judges “to determine whether in the opinion of said committee the said judges or any of them have been guilty of any high crime or misdemeanor which in the contemplation of the Constitution requires the interposition of the constitutional powers of the House.” I think this is sufficient to make it an “Impeachment Inquiry,” despite its careful avoidance of the phrase. The subcommittee found conduct that “brought discredit” to the judiciary. The whole Judiciary Committee decided this was not a basis to impeach.

In older potential impeachment cases, there seem to be three main patterns: (1) a resolution to impeach, referred to committee; (2) A resolution to investigate for purposes of possible impeachment, referred to committee (3) A resolution to investigate for purposes of possible impeachment, passed by the whole House. As (1) and (2) are much more common than (3), the proposition that an impeachment inquiry requires a whole House Impeachment Inquiry vote is unsupported by the historical record. 

There are also (4) A resolution to investigate not expressly mentioning impeachment referred to committee; (5) A resolution to investigate not expressly mentioning impeachment voted by the whole House.  Sometimes (5), as in the Chandler case, supports the “whole House vote” proposition, but so far as I have been able to determine this subset of (5) is too rare to contribute to the argument.

 

Conclusion

Neither the history of House of Representatives investigations towards impeachment of presidents nor of non-presidents supports the existence of a precedent requiring the whole House to pass an Impeachment Inquiry resolution.