[106th Congress House Rules Manual -- House Document No. 106-320]
[From the U.S. Government Printing Office Online Database]
[DOCID:hrulest-57]

[Page 307-324]

                         sec. liii--impeachment

* * * * *
  These are the <> provisions of the Constitution of the United States
on the subject of impeachments. The following is a sketch of some of the
principles and practices of England on the same subject:
  Jurisdiction. The Lords can not impeach any to themselves, nor join in
the accusation, because they are the judges. Seld. Judic. in Parl., 12,
63. Nor can they proceed against a commoner but on complaint of the
Commons. Ib., 84. The Lords may not, by the law, try a commoner for a
capital offense, on the information of the King or a private person,
because the accused is entitled to a trial by his peers generally; but
on accusation by the House of Commons, they may proceed against the
delinquent, of whatsoever degree, and whatsoever be the nature of the
offense; for there they do not assume to themselves trial at common law.
The Commons are then instead of a jury, and the judgment is given on
their demand, which is instead of a verdict. So the Lords do only judge,
but not try the delinquent. Ib., 6, 7. But Wooddeson denies that a
commoner can now be charged capitally before

[[Page 308]]

the Lords, even by the Commons; and cites Fitzharris's case, 1681,
impeached of high treason, where the Lords remitted the prosecution to
the inferior court. 8 Grey's Deb., 325-7; 2 Wooddeson, 576, 601; 3
Seld., 1604, 1610, 1618, 1619, 1641; 4 Blackst., 25; 9 Seld., 1656; 73
Seld., 1604-18.
  Accusation. The <> Commons, as the grand inquest of the nation, becomes
suitors for penal justice. 2 Wood., 597; 6 Grey, 356. The general course
is to pass a resolution containing a criminal charge against the
supposed delinquent, and then to direct some member to impeach him by
oral accusation, at the bar of the House of Lords, in the name of the
Commons. The person signifies that the articles will be exhibited, and
desires that the delinquent may be sequestered from his seat, or be
committed, or that the peers will take order for his appearance. Sachev.
Trial, 325; 2 Wood., 602, 605; Lords' Journ., 3 June, 1701; 1 Wms., 616;
6 Grey, 324.

  In the <> House there are various methods of setting an impeachment in
motion: by charges made on the floor on the responsibility of a Member
or Delegate (II, 1303; III, 2342, 2400, 2469; VI, 525, 526, 528, 535,
536); by charges preferred by a memorial, which is usually referred to a
committee for examination (III, 2364, 2491, 2494, 2496, 2499, 2515; VI,
543); by a resolution dropped in the hopper by a Member and referred to
a committee (Apr. 15, 1970, p. 11941; Oct. 23, 1973, p. 34873); by a
message from the President (III, 2294, 2319; VI, 498); by charges
transmitted from the legislature of a State (III, 2469) or territory
(III, 2487) or from a grand jury (III, 2488); or from facts developed
and reported by an investigating committee of the House (III, 2399,
2444). In the 93d Congress, the Vice President sought to initiate an
investigation by the House of charges against him of possibly
impeachable offenses. The Speaker and the House took no action on the
request since the matter was pend

[[Page 309]]

ing in the courts and the offenses did not relate to activities during
the Vice President's term of office (Sept. 25, 1973, p. 31368; III, 2510
(wherein the Committee on the Judiciary, to which the matter had been
referred by privileged resolution, reported that the Vice President
could not be impeached for acts or omissions committed prior to his term
of office)). On the other hand, in 1826 the Vice President's request
that the House investigate charges against his prior official conduct as
Secretary of War was referred, on motion, to a select committee (III,
1736). On September 9, 1998, an independent counsel transmitted to the
House under 28 U.S.C. 595(c) a communication containing evidence of
alleged impeachable offenses by the President. In the 106th Congress the
House adopted a privileged resolution reported by the Committee on Rules
referring the communication to the Committee on the Judiciary,
restricting Members' access to the communication, and restricting access
to committee meetings and hearings on the communication (H. Res. 525,
Sept. 11, 1998, p. ----). Later, the House adopted a privileged
resolution reported by the Committee on the Judiciary authorizing an
impeachment inquiry by that committee (H. Res. 581, Oct. 8, 1998, p. --
--). The authority to appoint an independent counsel under 28 U.S.C.
595(c) expired on June 30, 1999.
  A direct <> 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 (III, 2045-2048, 2051, 2398; VI,
468, 469; July 22, 1986, p. 17294; Aug. 3, 1988, p. 20206; May 10, 1989,
p. 8814; Sept. 23, 1998, p. ----; see Procedure, ch. 14, sec. 1-5). It
may not even be superseded by an election case, which is also a matter
of high privilege (III, 2581). It does not lose its privilege from the
fact that a similar proposition has been made at a previous time during
the same session of Congress (III, 2408), previous action of the House
not affecting it (III, 2053). As such, a report of the Committee on the
Judiciary accompanying an impeachment resolution is filed from the floor
as privileged (Dec. 17, 1998, p. ----), and is called up as privileged
(Dec. 18, 1998, p. ----). The addition of new articles of impeachment
offered by the managers but not reported by committee are also
privileged (III, 2401), as is a proposition to refer to committee the
papers and testimony in an impeachment of the preceding Congress (V,
7261). To a privileged resolution of impeachment, an amendment proposing
instead censure, which is not privileged, was held not germane (Dec. 19,
1998, p. ----). On several occasions the Committee on the Judiciary,
having been referred a question of impeachment, reported a
recommendation that impeachment was not warranted and, thereafter,
called up the report as a question of privilege (Deschler's Precedents,
vol. 3, ch. 14, sec. 1.3). Under 28 U.S.C. 596(a) an independent counsel
appointed to investigate the President may be impeached; and a
resolution impeaching such independent counsel constitutes a question of
the privileges of the House under rule IX (Sept. 23, 1998, p. ----).

[[Page 310]]

  Propositions relating to an impeachment already made also are
privileged (III, 2400, 2402, 2410; July 22, 1986, p. 17294; Dec. 2,
1987, p. 33720; Aug. 3, 1988, p. 20206), such as resolutions providing
for selection of managers of an impeachment (VI, 517; Dec. 19, 1998, p.
----), proposing abatement of impeachment proceedings (VI, 514),
reappointing managers for impeachment proceedings continued in the
Senate from the previous Congress (Jan. 3, 1989, p. 84; Jan. 6, 1999, p.
----), empowering managers to hire special legal and clerical personnel
and providing for their pay, and to carry out other responsibilities
(Jan. 3, 1989, p. 84; Dec. 19, 1998, p. ----; Jan. 6, 1999, p. ----),
and replacing an excused manager (Feb. 7, 1989, p. 1726); but a
resolution simply proposing an investigation, even though impeachment
may be a possible consequence, is not privileged (III, 2050, 2546; VI,
463).
  Where a resolution of investigation positively proposes impeachment or
suggests that end, it has been admitted as of privilege (III, 2051,
2052, 2401, 2402), such as a resolution reported by the Committee on the
Judiciary authorizing an impeachment inquiry by that committee and
investing the committee with special investigative authorities to
facilitate the inquiry (III, 2029; VI, 498, 528, 549; Deschler's
Precedents, vol. 3, ch. 14, secs. 5.8, 6.2; H. Res. 581, Oct. 8, 1998,
p. ----). A committee to which has been referred privileged resolutions
for the impeachment of an officer may call up as privileged resolutions
incidental to consideration of the impeachment question, including
conferral of subpoena authority and funding of the investigation from
the contingent fund (now referred to as ``applicable accounts of the
House described in clause 1(i)(1) of rule X'') (VI, 549; Feb. 6, 1974,
p. 2349). Similarly, a resolution authorizing depositions by committee
counsel in an impeachment inquiry is privileged under rule IX as
incidental to impeachment (Speaker Wright, Oct. 3, 1988, p. 27781).
  The impeachment <> having been made on the floor by a Member (III, 2342, 2400;
VI, 525, 526, 528, 535, 536), or charges suggesting impeachment having
been made by memorial (III, 2495, 2516, 2520; VI, 552), or even
appearing through common fame (III, 2385, 2506), the House has at times
ordered an investigation at once. At other times it has refrained from
ordering investigation until the charges had been examined by a
committee (III, 2364, 2488, 2491, 2492, 2494, 2504, 2513). Under the
later practice, resolutions introduced through the hopper that directly
call for the impeachment of an officer have been referred to the
Committee on the Judiciary, while resolutions calling for an
investigation by that committee or by a select committee with a view
toward impeachment have been referred to the Committee on Rules (Oct.
23, 1973, p. 34873). Upon receipt of a communication from an independent
counsel transmitting to the House under 28 U.S.C. 595(c) a communication
containing evidence of alleged impeachable offenses by the President,
the House adopted a resolution reported by the Committee on Rules
referring the communication to the Committee on the Judiciary to conduct
a review (H. Res. 525, 106th Cong., Sept. 11, 1998, p. ----).

[[Page 311]]

Later, the House adopted a privileged resolution reported by the
Committee on the Judiciary authorizing an impeachment inquiry by that
committee (H. Res. 581, Oct. 8, 1998, p. ----).
  The House has <> always examined the charges by its own committee before
it has voted to impeach (III, 2294, 2487, 2501). This committee has
sometimes been a select committee (III, 2342, 2487, 2494), sometimes a
standing committee (III, 2400, 2409). In some instances the committee
has made its inquiry ex parte (III, 2319, 2343, 2366, 2385, 2403, 2496,
2511); but in the later practice the sentiment of committees has been in
favor of permitting the accused to explain, present witnesses, cross-
examine (III, 2445, 2471, 2518), and be represented by counsel (III,
2470, 2501, 2511, 2516; 93d Cong., Aug. 20, 1974, p. 29219; H. Rept.
105-830, Dec. 16, 1998). The Committee on the Judiciary having been
directed by the House to investigate whether sufficient grounds existed
for the impeachment of President Nixon, and the President having
resigned following the decision of that committee to recommend his
impeachment to the House, the chairman of the committee submitted from
the floor as privileged the committee's report containing the articles
of impeachment approved by the committee but without an accompanying
resolution of impeachment. The House thereupon adopted a resolution (1)
taking notice of the committee's action on a resolution and Articles of
Impeachment and of the President's resignation; (2) accepting the report
and authorizing its printing, with additional views; and (3) commending
the chairman and members of the committee for their efforts (Aug. 20,
1974, p. 29361).
  During the <> pendency of an impeachment resolution, remarks in debate
may include references to personal misconduct on the part of the
President but may not include language generally abusive toward the
President and may not include comparisons to the personal conduct of
sitting Members of the House or Senate (Dec. 18, 1998, p. ----). A
resolution setting forth four separate articles of impeachment may be
divided among the articles (Dec. 19, 1998, p. ----).
  Its committee <> on investigation having reported, the House may vote the
impeachment (III, 2367, 2412; VI, 500, 514; Mar. 2, 1936, pp. 3067-91),
and, after having notified the Senate by message (III, 2413, 2446), may
direct the impeachment to be presented at the bar of the Senate by a
single Member (III, 2294), or by two (III, 2319, 2343, 2367), or five
Members (III, 2445) or nine (July 22, 1986, p. 17306) or 13 (Dec. 19,
1998, p. ----). These Members in two notable cases represented the
majority party alone (e.g., Dec. 19, 1998, p. ----), but ordinarily
include representation of the minority party (III, 2445, 2472, 2505).
Under early practice the House elected managers by ballot (III, 2300,
2323, 2345, 2368, 2417). In two instances the Speaker appointed the
managers on behalf of the House pursuant to an order of the House (III,
2388, 2475). Since 1912 the House has adopted

[[Page 312]]

a resolution appointing managers. In the later practice the House
considers together the resolution and articles of impeachment (VI, 499,
500, 514; Mar. 2, 1936, pp. 3067-91) and following their adoption adopts
resolutions electing managers to present the articles before the Senate,
notifying the Senate of the adoption of articles and election of
managers, and authorizing the managers to prepare for and to conduct the
trial in the Senate (VI, 500, 514, 517; Mar. 6, 1936, pp. 3393, 3394;
July 22, 1986, p. 17306; Aug. 3, 1988, p. 20206). These privileged
incidental resolutions may be merged into a single indivisible
privileged resolution (H. Res. 614, Dec. 19, 1998, p. ----; H. Res. 10,
Jan. 6, 1999, p. ----).
  Process. If the <> party do not appear, proclamations are to be issued, giving
him a day to appear. On their return they are strictly examined. If any
error be found in them, a new proclamation issues, giving a short day.
If he appear not, his goods may be arrested, and they may proceed. Seld.
Jud. 98, 99.

  Under <> an order of the Senate, the Secretary of the Senate
informed the House and the Chief Justice that it was ready to receive
the House managers for the purpose of exhibiting articles of impeachment
against President Clinton (Jan. 6, 1999, p. ----). At the appointed hour
the House managers were announced and escorted into the Senate chamber
by the Senate Sergeant-at-Arms (Jan. 7, 1999, p. ----). The managers
presented the articles of impeachment by reading two resolutions as
follows: (1) the appointment of managers (H. Res. 10, Jan. 7, 1999, p.
----); and (2) the two articles of impeachment (H. Res. 611, Jan. 7,
1999, p. ----). Thereupon, the managers requested the Senate take order
for trial (Jan. 7, 1999, p. ----).
  The Senate adopted a resolution governing the initial impeachment
proceedings of President Clinton (S. Res. 16, Jan. 8, 1999, p. ----).
Later it adopted a second resolution governing the remaining proceedings
(S. Res. 30, Jan. 28, 1999, p. ----). The first resolution issued the
summons in the usual form. It also provided a timetable for (1) the
filing of an answer by the President; (2) the filing of a reply by the
House, together with the record consisting of publicly available
materials that had been submitted to or produced by the House Judiciary
Committee (the resolution further directed that the record be admitted
into evidence, printed, and made available to Senators); (3) the filing
of a trial brief by the House; (4) the filing of any motions permitted
under the rules of impeachment (except for motions to subpoena witnesses
or to present evidence not in the record); (5) the filing of responses
to any such motions; (6) the filing of a trial brief by the President;
(7) the filing of a rebuttal brief by the House; and (8)

[[Page 313]]

arguments on such motions. The resolution then directed the Senate to
dispose of any such motions and established a further timetable for (1)
the House to make its presentation in support of the articles of
impeachment (such argument to be confined to the record); (2) the
President to make his presentation in opposition to the articles of
impeachment; and (3) the Senators to question the parties. The
resolution directed the Senate, upon completion of that phase of the
proceedings, to dispose of a motion to dismiss, and if defeated, to
dispose of a motion to subpoena witnesses or to present any evidence not
in the record. The resolution further provided that, if the motion to
call witnesses were adopted, the witnesses would first be deposed and
then the Senate would decide which witnesses should testify. It further
provided that if the Senate failed to dismiss the case, the parties
would proceed to present evidence. Finally, the resolution directed the
Senate to vote on each article of impeachment at the conclusion of the
deliberations. The evidentiary record (summons, answer, replies, and
trial briefs) was printed in the Record by unanimous consent (Jan. 14,
1999, p. ----). Pursuant to the previous order of the Senate (S. Res.
16, Jan. 8, 1999, p. ----), the House managers were recognized for 24
hours to present their case in support of conviction and removal of
President Clinton (Jan. 14, 1999, p. ----); counsel for the President
was then recognized for 24 hours to present the President's defense
(Jan. 19, 1999, p. ----); and Senators submitted questions in writing of
either the House managers or the President's counsel (which were read by
the Chief Justice, alternating between parties) for a period not to
exceed 16 hours (Jan. 22, 1999, p. ----). The Chief Justice ruled that a
House manager could not object to a question although he could object to
an answer (Jan. 22, 1999, p. ----; Jan. 23, 1999, p. ----). The Senate
adopted a motion to consider a motion to dismiss in executive session
(Jan. 25, 1999, p. ----), and the motion to dismiss was defeated (Jan.
27, 1999, p. ----). The Senate adopted a motion to consider a motion of
the House managers to subpoena witnesses in executive session (Jan. 26,
1999, p. ----). The Senate adopted that motion, which: (1) authorized
the issuance of subpoenas for depositions of three witnesses; (2)
admitted miscellaneous documents into the trial record; and (3)
petitioned the Senate to request the appearance of President Clinton at
a deposition (Jan. 26, 1999, p. ----).
  The Senate subsequently adopted a resolution governing the remaining
impeachment proceedings as follows: (1) establishment of a timetable for
conducting and reviewing depositions, resolving any objections made
during the depositions, and considering motions to admit any portions of
the depositions into evidence; (2) consideration of motions for
additional discovery (if made by the two Leaders jointly); (3)
disposition of motions governing the presentation of evidence or
witnesses before the Senate and motions by the President's counsel
(specifically precluding a motion to reopen the record and specifically
permitting a motion to allow final deliberations in open session); (4)
establishment of a timetable to vote on the articles of impeachment; and
(5) authorization to issue subpoenas to take cer

[[Page 314]]

tain depositions and to establish procedures for conducting depositions
(S. Res. 30, Jan. 28, 1999, p. ----). The Senate adopted two parts of a
divided motion as follows: (1) permitting the House managers to admit
transcripts and videotapes of oral depositions into evidence (Feb. 4,
1999, p. ----); and (2) permitting the parties to present before the
Senate for an equally divided specified period of time portions of
videotapes or oral depositions admitted into evidence, having first
rejected a preemptive motion to restrict the House managers'
presentation of evidence to written transcripts (Feb. 4, 1999, p. ----).
The Senate rejected the portion of the divided motion that would have
authorized a subpoena for the appearance of a named witness (Feb. 4,
1999, p. ----). During debate on the motion, the Senate, by unanimous
consent, permitted the House managers and counsel for the President to
make references to videotaped oral depositions (Feb. 4, 1999, p. ----).
The Senate rejected two additional motions as follows: (1) a motion to
proceed directly to closing arguments and an immediate vote on the
articles of impeachment (Feb. 4, 1999, p. ----); and (2) a motion that
the House managers provide written notice to counsel for the President
by a time certain of those portions of videotaped deposition testimony
they planned to use during their evidentiary presentation or during
closing arguments (Feb. 4, 1999, p. ----). By unanimous consent the
Senate printed certain deposition transcripts in the Record and
transmitted to the House managers and the counsel for the President
deposition transcripts and videotapes (Feb. 4, 1999, p. ----). The Chief
Justice held inadmissible a portion of a videotaped deposition not
entered as evidence into the Senate record (other portions of which were
admitted under an order of the Senate), and a unanimous consent request
nevertheless to admit that portion of a deposition was objected to (Feb.
6, 1999, p. ----). After closing arguments, the Senate adopted a motion
to consider the articles of impeachment in closed session (Feb. 9, 1999,
p. ----). After closed deliberations the Senate Clerk read the articles
of impeachment against President Clinton in open session, and each
Senator voted ``guilty'' or ``not guilty'' on each article (Feb. 12,
1999, p. ----). By votes of 45-55 and 50-50 respectively, the Senate
adjudged President Clinton not guilty on each article of impeachment
(Feb. 12, 1999, p. ----). The Senate communicated to the House and the
Secretary of State the judgment of the Senate (Feb. 12, 1999, p. ----).
  See S. Doc. 93-102, ``Procedure and Guidelines for Impeachment Trials
in the United States Senate,'' for precedents relating to the conduct of
Senate impeachments.

  Articles. The accusation <> (articles) of the Commons is substituted in place of an
indictment. Thus, by the usage of Parliament, in impeachment for writing
or speaking, the particular words need not be spec

[[Page 315]]

ified. Sach. Tr., 325; 2 Wood., 602, 605; Lords' Journ., 3 June, 1701; 1
Wms., 616.

  Having delivered the impeachment, the committee returns to the House
and reports verbally (III, 2413, 2446; VI, 501). Formerly, the House
exhibited its articles after the impeachment had been carried to the bar
of the Senate; in the later practice, the resolution and articles of
impeachment have been considered together and exhibited simultaneously
in the Senate by the managers (VI, 501, 515; Mar. 10, 1936, pp. 3485-88;
Oct. 7, 1986, p. 29126; Jan. 7, 1999, p. ----). The managers, who are
elected by the House (III, 2300, 2345, 2417, 2448; VI, 500, 514, 517;
Mar. 2, 1936, pp. 3393, 3394) or appointed by the Speaker (III, 2388,
2475), carry the articles in obedience to a resolution of the House
(III, 2417, 2419, 2448) to the bar of the Senate (III, 2420, 2449,
2476), the House having previously informed the Senate (III, 2419, 2448)
and received a message informing them of the readiness of the latter
body to receive the articles (III, 2078, 2325, 2345; Aug. 6, 1986, p.
19335; Jan. 6, 1999, p. ----). Having exhibited the articles the
managers return and report verbally to the House (III, 2449, 2476).
  The articles in the Belknap impeachment were held sufficient, although
attacked for not describing the respondent as one subject to impeachment
(III, 2123). In the proceedings against Judge Ritter, objections to the
articles of impeachment, on the ground that they duplicated and
accumulated separate offenses, were overruled (Apr. 3, 1936, p. 4898;
Apr. 17, 1936, p. 5606). These articles are signed by the Speaker and
attested by the Clerk (III, 2302, 2449), and in form approved by the
practice of the House (III, 2420, 2449, 2476).
  Articles of impeachment which have been exhibited to the Senate may be
subsequently modified or amended by the House (VI, 520; Mar. 30, 1936,
pp. 4597-99), and a resolution proposing to amend articles of
impeachment previously adopted by the House is privileged for
consideration when reported by the managers on the part of the House
(VI, 520; Mar. 30, 1936, p. 4597).
  For discussion of substantive charges contained in articles of
impeachment and the constitutional grounds for impeachment, see
Sec. 175, supra (accompanying Const., art. II, sec. 4). For a discussion
of the presentation of the House managers in support of the impeachment
of President Clinton, and related matters, see Sec. 608a, supra.

  Appearance. If he <> appear, and the case be capital, he answers in custody;
though not if the accusation be general. He is not to be committed but
on special accusations. If it be for a misdemeanor only,

[[Page 316]]

he answers, a lord in his place, a commoner at the bar, and not in
custody, unless, on the answer, the Lords find cause to commit him, till
he finds sureties to attend, and lest he should fly. Seld. Jud., 98, 99.
A copy of the articles is given him, and a day fixed for his answer. T.
Ray.; 1 Rushw., 268; Fost., 232; 1 Clar. Hist. of the Reb., 379. On a
misdemeanor, his appearance may be in person, or he may answer in
writing, or by attorney. Seld. Jud., 100. The general rule on accusation
for a misdemeanor is, that in such a state of liberty or restraint as
the party is when the Commons complain of him, in such he is to answer.
Ib., 101. If previously committed by the commons, he answers as a
prisoner. But this may be called in some sort judicium parium suorum.
Ib. In misdemeanors the party has a right to counsel by the common law,
but not in capital cases. Seld. Jud., 102, 105.

  This paragraph <> of the parliamentary law is largely obsolete
so far as the practice of the House and the Senate are concerned. The
accused may appear in person or by attorney (III, 2127, 2349, 2424), and
take the stand in his own behalf (VI, 511, 524; Apr. 11, 1936, pp. 5370-
86; Oct. 7, 1986, p. 29149), or he may not appear at all (III, 2307,
2333, 2393). In case he does not appear the House does not ask that he
be compelled to appear (III, 2308), but the trial proceeds as on a plea
of ``not guilty.'' It has been decided that the Senate has no power to
take into custody the body of the accused (III, 2324, 2367). The writ of
summons to the accused recites the articles and notifies him to appear
at a fixed time and place and file his answer (III, 2127). In all cases
respondent may appear by counsel (III, 2129), and in one trial, when a
petition set forth that respondent was insane, the counsel of his son
was admitted to be heard and present evidence in support of the
petition, but not to make argument (III, 2333). For a discussion of
answers, arguments, and presentations of the respondent in the Clinton
impeachment proceedings, see Sec. 608a, supra.

[[Page 317]]

  The chairman of the committee impeaches at the bar of the Senate by
oral accusation (III, 2413, 2446, 2473), and the managers for the House
attend in the Senate after the articles have been exhibited and demand
that process issue for the attendance of respondent (III, 2451, 2478),
after which they return and report verbally to the House (III, 2423,
2451; VI, 501). The Senate thereupon issue a writ of summons, fixing the
day of return (III, 2423, 2451; S. Res. 16, Jan. 8, 1999, p. ----); and
in a case wherein the respondent did not appear by person or attorney
the Senate published a proclamation for him to appear (III, 2393). But
the respondent's goods were not attached. In only one case has the
parliamentary law as to sequestration and committal been followed (III,
2118, 2296), later inquiry resulting in the conclusion that the Senate
had no power to take into custody the body of the accused (III, 2324,
2367).

  Answer. The <> answer need not
observe great strictness of the form. He may plead guilty as to part,
and defend as to the residue; or, saving all exceptions, deny the whole
or give a particular answer to each article separately. 1 Rush., 274; 2
Rush., 1374; 12 Parl. Hist., 442; 3 Lords' Journ., 13 Nov., 1643; 2
Wood., 607. But he cannot plead a pardon in bar to the impeachment. 2
Wood., 615; 2 St. Tr., 735.

  In the Senate proceedings of the impeachment of President Andrew
Johnson, the answer of the President took up the articles one by one,
denying some of the charges, admitting others but denying that they set
forth impeachable offenses, and excepting to the sufficiency of others
(III, 2428). The form of this answer was commented on during preparation
of the replication in the House (III, 2431). In the Senate proceedings
on the impeachment of President Clinton, the answer of the President
also took up the articles one by one, denying some of the charges and
admitting others but denying that they set forth impeachable offenses
(Jan. 14, 1999, p. ----). Blount and Belknap demurred to the charges on
the ground that they were not civil officers within the meaning of the
Constitution (III, 2310, 2453), and Swayne also raised questions as to
the jurisdiction of the Senate (III, 2481). The answer is part of the
pleadings, and exhibits in the nature of evidence may not properly be
attached thereto (III, 2124). The answer of the respondent in
impeachment proceedings is messaged to the House and subsequently
referred to the managers on the part of the House (VI, 506; Apr. 6,
1936, p. 5020; Sept. 9, 1986, p. 22317).
  For a chronology of arguments and presentations of the respondent in
the Clinton impeachment proceedings, see Sec. 608a, supra.

[[Page 318]]

  Replication, rejoinder, <> &c. There
may be a replication, rejoinder, &c. Sel. Jud., 114; 8 Grey's Deb., 233;
Sach. Tr., 15; Journ. H. of Commons, 6 March, 1640-1.

  A replication is always filed (for the form of replication in modern
practice, see Sept. 26, 1988, p. 25357), and in one instance the
pleadings proceeded to a rejoinder, surrejoinder, and similiter (III,
2455). A respondent has also filed a protest instead of pleading on the
merits (III, 2461), but there was objection to this and the Senate
barely permitted it. In another case respondent interposed a plea as to
jurisdiction of offenses charged in certain articles, but declined to
admit that it was a demurrer with the admissions pertinent thereto (III,
2125, 2431). In the Belknap trial the House was sustained in averring in
pleadings as to jurisdiction matters not averred in the articles (III,
2123). The right of the House to allege in the replication matters not
touched in the articles has been discussed (III, 2457). In the
Louderback (VI, 522) and Ritter (Apr. 6, 1936, p. 4971) impeachment
proceedings, the managers on the part of the House prepared and
submitted the replication to the Senate without its consideration by the
House, contrary to former practice (VI, 506). The Senate may consider in
closed session various preliminary motions made by respondent (e.g., to
declare the Senate rule on appointment of a committee to receive
evidence to be unconstitutional, to declare beyond a reasonable doubt as
the standard of proof in an impeachment trial, and to postpone the
impeachment trial) prior to voting in open session to dispose of those
motions (Oct. 7 and 8, 1986, pp. 29151 and 29412).
  For a chronology in the Senate of disposition of motions permitted
under Senate impeachment rules, see Sec. 608a, supra.

  Witnesses. The <> practice
is to swear the witnesses in open House, and then examine them there; or
a committee may be named, who shall examine them in committee, either on
interrogatories agreed on in the House, or such as the committee in
their discretion shall demand. Seld. Jud., 120, 123.

  In trials before the Senate witnesses have always been examined in
open Senate, although examination by a committee has been suggested
(III, 2217) and utilized (S. Res. 38, 101st Cong., Mar. 16, 1989, p.
4533). In the 74th Congress, the Senate amended its rules for
impeachment trials to allow the presiding officer, upon the order of the
Senate, to appoint a committee to receive evidence and take testimony in
the trial of any impeachment (May 28, 1935, p. 8309). In the trial of
Judge Claiborne the

[[Page 319]]

Senate directed the appointment of a committee of twelve Senators to
take evidence and testimony pursuant to rule XI of the Rules of
Procedure and Practice in the Senate when Sitting on Impeachment Trials
(S. Res. 481, Aug. 15, 1986, p. 22035); and in Nixon v. United States,
113 S. Ct. 732 (1993), the Supreme Court refused to declare
unconstitutional the appointment of such a committee to take evidence
and testimony.
  For a chronology of motions to subpoena witnesses during the Senate
impeachment proceedings against President Clinton, see Sec. 608a, supra.

  Jury. In the <> case of Alice Pierce, 1 R., 2, a jury was impaneled for
her trial before a committee. Seld. Jud., 123. But this was on a
complaint, not on impeachment by the Commons. Seld. Jud., 163. It must
also have been for a misdemeanor only, as the Lords spiritual sat in the
case, which they do on misdemeanors, but not in capital cases. Id., 148.
The judgment was a forfeiture of all her lands and goods. Id., 188.
This, Selden says, is the only jury he finds recorded in Parliament for
misdemeanors; but he makes no doubt, if the delinquent doth put himself
on the trial of his country, a jury ought to be impaneled, and he adds
that it is not so on impeachment by the Commons, for they are in loco
proprio, and there no jury ought to be impaneled. Id., 124. The Ld.
Berkeley, 6 E., 3, was arraigned for the murder of L. 2, on an
information on the part of the King, and not on impeachment of the
Commons; for then they had been patria sua. He waived his peerage, and
was tried by a jury of Gloucestershire and Warwickshire. Id., 126. In 1
H., 7, the Commons protest that they are not to be considered as parties
to any judgment given, or hereafter to be given in Parliament. Id., 133.
They have been generally and more justly con

[[Page 320]]

sidered, as is before stated, as the grand jury; for the conceit of
Selden is certainly not accurate, that they are the patria sua of the
accused, and that the Lords do only judge, but not try. It is undeniable
that they do try; for they examine witnesses as to the facts, and acquit
or condemn, according to their own belief of them. And Lord Hale says,
``the peers are judges of law as well as of fact;'' 2 Hale, P. C., 275;
Consequently of fact as well as of law.

  No jury is possible as part of an impeachment trial under the
Constitution (III, 2313). In 1868, after mature consideration, the
Senate overruled the old view of its functions (III, 2057), and decided
that it sat for impeachment trials as the Senate and not as a court
(III, 2057), and eliminated from its rules all mention of itself as a
``high court of impeachment'' (III, 2079, 2082). However, the modern
view of the Senate as a court was evident during the impeachment trial
of President Clinton. There the Senate convened as a ``Court of
Impeachment'' (see, e.g.,  Jan. 7, 1999, p. ----). In response to an
objection raised by a Senator, the Chief Justice held that the Senate
was not sitting as a ``jury'' but was sitting as a ``court'' during the
impeachment trial of President Clinton. As such, the House managers were
directed to refrain from referring to the Senators as ``jurors'' (Jan.
15, 1999, p. ----).
  An anxiety lest <> the Chief
Justice might have a vote in the approaching trial of the President
seems to have prompted this earlier action (III, 2057). There was
examination of the question of the Chief Justice's power to vote (III,
2098); but the Senate declined to declare his incapacity to vote, and he
did in fact give a casting vote on incidental questions (III, 2067).
Under the earlier practice, the Senate declined to require that the
Chief Justice be sworn when about to preside (III, 2080); but the Chief
Justice had the oath administered by an associate justice (III, 2422).
The President pro tempore of the Senate, pursuant to an earlier order of
the Senate, appointed a committee to escort the Chief Justice into the
Senate chamber to preside over the impeachment trial of President
Clinton, administered the oath to him, and the Chief Justice in turn
administered the oath to the Senators (Jan. 7, 1999, p. ----).
  In impeachments for officers other than the President of the United
States the presiding officer of the Senate presides, whether he be Vice
President, the regular President pro tempore (III, 2309, footnote, 2337,
2394) or a special President pro tempore chosen to preside at the trial
only (III, 2089, 2477).

[[Page 321]]

  Senators elected after <> the
beginning of an impeachment trial are sworn as in the case of other
Senators (III, 2375). The quorum of the Senate sitting for an
impeachment trial is a quorum of the Senate itself, and not merely a
quorum of the Senators sworn for the trial (III, 2063). The vote
required for conviction is two-thirds of those Senators present and
voting (Oct. 20, 1989, p. 25335). In 1868, when certain States were
without representation, the Senate declined to question its competency
to try an impeachment case (III, 2060). The President pro tempore of the
Senate administered the oath to the Chief Justice presiding over the
impeachment trial of President Clinton, and the Chief Justice in turn
administered the oath to the Senators (Jan. 7, 1999, p. ----).

  Presence of <> Commons.
The Commons are to be present at the examination of witnesses. Seld.
Jud., 124. Indeed, they are to attend throughout, either as a committee
of the whole House, or otherwise, at discretion, appoint managers to
conduct the proofs. Rushw. Tr. of Straff., 37; Com. Journ., 4 Feb.,
1709-10; 2 Wood., 614. And judgment is not to be given till they demand
it. Seld. Jud., 124. But they are not to be present on impeachment when
the Lords consider of the answer or proofs and determine of their
judgment. Their presence, however, is necessary at the answer and
judgment in case capital Id., 58, 158, as well as not capital; 162. * *
*.

  The <> House has consulted its own inclination and
convenience about attending its managers at an impeachment. It did not
attend at all in the trials of Blount, Swayne, Archbald. Louderback and
Ritter (III, 2318, 2483; VI, 504, 516); and after attending at the
answer of Belknap, decided that it would be represented for the
remainder of the trial by its managers alone (III, 2453). At the trial
of the President the House, in Committee of the Whole, attended
throughout the trial (III, 2427), but this is exceptional. In the Peck
trial the House discussed the subject (III, 2377) and reconsidered its
decision to attend the trial daily (III, 2028). While the Senate is
deliberating the House does not attend (III, 2435); but when the Senate
votes on the charges, as at the other open proceedings of the

[[Page 322]]

trial, it may attend (III, 2383, 2388, 2440). While it has frequently
attended in Committee of the Whole, it may attend as a House (III,
2338).

  * * * The <> Lords debate the judgment among themselves. Then the vote is
first taken on the question of guilty or not guilty; and if they
convict, the question, or particular sentence, is out of that which
seemeth to be most generally agreed on. Seld. Jud., 167; 2 Wood., 612.

  The question in judgment in an impeachment trial has occasioned
contention in the Senate (III, 2339, 2340), and in the trial of the
President the form was left to the Chief Justice (III, 2438, 2439). In
the Belknap trial there was much deliberation over this subject (III,
2466). In the Chase trial the Senate modified its former rule as to form
of final question (III, 2363). The yeas and nays are taken on each
article separately (III, 2098, 2339) in the form ``Senators, how say
you? is the respondent guilty or not guilty?'' (Oct. 9, 1986, p. 29871).
But in the trial of President Johnson the Senate, by order, voted on the
articles in an order differing from the numerical order (III, 2440),
adjourned after voting on one article (III, 2441), and adjourned without
day after voting on three of the eleven articles (III, 2443). In other
impeachments, the Senate has adopted an order to provide the method of
voting and putting the question separately and successively on each
article (VI, 524; Apr. 16, 1936, p. 5558). For a discussion of the vote
of the Senate on each article of impeachment of President Clinton, see
Sec. 608a, supra.

  Judgment. Judgments in <> Parliament, for death have been strictly guided per
legem terrae, which they can not alter; and not at all according to
their discretion. They can neither omit any part of the legal judgment
nor add to it. Their sentence must be secundum non ultra legem. Seld.
Jud., 168, 171. This trial, though it varies in external ceremony, yet
differs not in essentials from criminal prosecutions before inferior
courts. The same rules of evidence, the same legal notions of crimes and
punishments, prevailed; for impeachments are

[[Page 323]]

not framed to alter the law, but to carry it into more effectual
execution against too powerful delinquents. The judgment, therefore, is
to be such as is warranted by legal principles or precedents. 6 Sta.
Tr., 14; 2 Wood., 611. The Chancellor gives judgment in misdemeanors;
the Lord High Steward formerly in cases of life and death. Seld. Jud.,
180. But now the Steward is deemed not necessary. Fost., 144; 2 Wood.,
613. In misdemeanors the greatest corporal punishment hath been
imprisonment. Seld. Jud., 184. The King's assent is necessary to capital
judgments (but 2 Wood., 614, contra), but not in misdemeanors, Seld.
Jud., 136.

  The Constitution of the United States (art. I, sec. 3, cl. 7) limits
the judgment to removal and disqualification. The order of judgment
following conviction in an impeachment trial is divisible for a separate
vote if it contains both removal and disqualification (III, 2397; VI,
512; Apr. 17, 1936, p. 5606), and an order of judgment (such as
disqualification) requires a majority vote (VI, 512; Apr. 17, 1936, p.
5607). Under earlier practice, after a conviction the Senate voted
separately on the question of disqualification (III, 2339, 2397), but no
vote is required by the Senate on judgment of removal from office
following conviction, since removal follows automatically from
conviction under article II, section 4 of the Constitution (Apr. 17,
1936, p. 5607). Thus, the presiding officer directs judgment of removal
from office to be entered and the respondent removed from office without
separate action by the Senate where disqualification is not contemplated
(Oct. 9, 1986, p. 29873). A resolution impeaching the President may
provide only for his removal from office (H. Res. 1333, 93d Cong., Aug.
20, 1974, p. 29361) or for both his removal and disqualification from
holding any future office (H. Res. 611, 106th Cong., Dec. 19, 1998, p.
----).

  Continuance. An <> impeachment is not discontinued by the dissolution of
Parliament, but may be resumed by the new Parliament. T. Ray 383; 4 Com.

[[Page 324]]

Journ., 23 Dec., 1790; Lord's Jour., May 15, 1791; 2 Wood., 618.

  In Congress impeachment proceedings are not discontinued by a recess
(III, 2299, 2304, 2344, 2375, 2407, 2505, see also Sec. 592, supra). The
following impeachment proceedings extended from one Congress to the
next: (1) the impeachment of Judge Pickering was presented in the Senate
on the last day of the Seventh Congress (III, 2320), and the Senate
conducted the trial in the Eighth Congress (III, 2321); (2) the
impeachment of Judge Louderback was presented in the Senate on the last
day of the 72d Congress (VI, 515), and the Senate conducted the trial in
the 73d Congress (VI, 516); (3) the impeachment of Judge Hastings was
presented in the Senate during the second session of the 100th Congress
(Aug. 3, 1988, p. 20223) and the trial in the Senate continued into the
101st Congress (Jan. 3, 1989, p. 84). The impeachment of President
Clinton was presented to the Senate after the Senate had adjourned sine
die for the 105th Congress (Dec. 19, 1998, p. ----), and the Senate
conducted the trial in the 106th Congress (Jan. 7, 1999, p. ----). While
impeachment proceedings may continue from one Congress to the next, the
authority of the managers appointed by the House expires at the end of a
Congress; and the managers must be reappointed when a new Congress
convenes (Jan. 6, 1999, p. ----).