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Why It Can't– Or Won't– Be Done, And What Congress Could Do Instead


Monday, Sep. 10, 2001

On a recent evening talk show, a well-known legal commentator was asked by a caller if Gary Condit, the embattled congressman, could or should be removed from office by impeachment. After a long and discursive reply that sounded much like a filibuster, the commentator offered a conclusion along the lines of "Well, I guess he could be impeached if he did something really bad."

That was almost certainly the wrong answer. Although the Constitution does not specifically address the issue, it has long been accepted that members of Congress are not subject to impeachment — for several reasons.

The Constitutional Language: Three Relevant Clauses

[Condit under pressure]

First, according to the Constitution, only the President, the Vice President, and "civil officers of the United States" can be impeached. Members of Congress do not count as "civil officers of the United States" — as language elsewhere in the constitution, and a decision by the Senate in the nation's first impeachment trial in 1797, make clear. (No court, however, has ruled on the issue).

Three different clauses of the Constitution strongly imply that members of Congress are not "civil officers of the United States." First, there is Article I, Section 6 — which expressly prohibits any officer of the United States from being a member of Congress, suggesting that the two groups will never even overlap.

Second, there is Article II, Section 3, which authorizes the President to "commission all the officers of the United States"; obviously the term "officers of the United States," as used here, cannot include legislators, who are elected, not commissioned.

Third, there is Article II, Section 2, which details how the president, with the advice and consent of the senate, shall appoint officers of the United States. Like Section 3 of Article II, this section also suggests that legislators, since they are elected and not appointed, cannot count as officers of the United States.

Reading these clauses together, according to Michael Gerhardt, compels the conclusion that an "officer of the United States" is someone appointed by the president to an office established by Congress. The term, then, covers federal judges, as well as subordinate executive branch officials, whom the Framers wanted to be sure could not be shielded by the President if they were accused of wrongdoing. It obviously does not apply to the military, who are not civil officers. And it clearly excludes members of Congress.

A 1797 Impeachment Controversy

The Senate's refusal to consider the impeachment of Senator William Blount in 1797 supports this reading of the Constitution, although there were other factors involved.

Blount had been impeached by the House of Representatives for conspiring to conduct military activities in support of the King of England. The Senate expelled him before considering the articles of impeachment.

Blount then argued that members of Congress are not "civil officers of the United States," and that the Senate had no jurisdiction to try his impeachment. The Senate, by a 14-11 vote, accepted that interpretation — although the fact that Blount had already been expelled may have played a role in its decision: The vote allowed the members of the Senate to save Blount from the taint of impeachment, yet still keep him out of their chamber.

In any event, whatever the Senate's reasons, Blount was acquitted, and no Representative or Senator has ever been impeached since then. The only persons impeached in the 204 years since that case have been two presidents, one cabinet member, and 13 federal judges. (Both presidents and about half of the federal judges, incidentally, were acquitted.)

Further Constitutional Evidence

One can also make a strong argument that members of Congress are not subject to impeachment because the constitution already provides an alternative mechanism for their removal for misconduct — the very method that was used in Blount's case.

Article I, Section 5, says that "Each House shall be the Judge of the Elections, Returns, and Qualifications of its own members . . . . Each House . . . . may punish its members for disorderly Behavior, and with the Concurrence of two thirds, expel a member."

Under the clause authorizing it to "punish its members for disorderly Behavior," Congress may, by majority vote, impose discipline short of expulsion, such as censure, reprimand, loss of committee assignments or seniority, or even denial of voting privileges (if the member is convicted of a crime). And as this language makes clear, Congress may expel a member upon a two-thirds vote.

With these remedies available, it becomes clear that impeaching members of Congress would be redundant, although conviction on impeachment charges may carry the additional penalty of disqualification from holding further office, and not merely discipline or removal.

Expelling or Punishing Condit? The Role of Rule 24

But what counts as "disorderly Behavior" — and does Gary Condit's behavior fall within the meaning of the phrase? It is an ambiguous phrase, not defined in the constitution. But the House, if it proceeded against Condit, would likely be governed by its own Rule 24.

Rule 24 proscribes various forms of impropriety and misconduct, and enjoins all members "to conduct themselves at all times in a manner that reflects creditably on the House." This rule was the basis, for example, of the reprimand to Congressman Barney Frank for using his office to help a male prostitute.

How Rule 24 precedents apply to Condit is anyone's guess. Consider those of his actions for which there is either evidence or a plausible basis for an inference: adultery with a young intern; falsely and libelously denying a prior affair with an airline stewardess; lacking contrition and displaying insufficient sympathy to the Levy family; and poor television performance. Do these actions rise to the same level as previous Rule 24 violations?

Few members of Congress would want to set the bar so low for expulsion. If they did, who knows who might be next? A lesser form of discipline, if any action is taken at all, seems more likely. Moreover, if any action is taken, Condit might respond with the defense that he has committed no misconduct in the course of his official business–and apparently none in the Capitol itself.

Impeachment as a "Political Question"

In any case, the Supreme Court ruled in 1993, in United States v. Nixon, that impeachment procedures and outcomes are nonjusticiable "political questions" and therefore not subject to judicial review. The same is true for expulsion, and for other internal disciplinary actions Congress might take against Condit. Accordingly, the House of Representatives itself would be the final judge of Condit's conduct.

Accountable only to itself, the House might decide to begin impeachment proceedings in the hope of using them to reverse the precedent of the Blount case, though this is highly unlikely. Two political factors counsel strongly against Congress' even trying to evade the non-impeachment precedent that the Blount vote set.

First, members of Congress are judged by the voters at periodic intervals — which suggests that impeachment should be reserved for only the most egregious cases of official misconduct. One might make the same argument, of course, about the President and Vice President, who nevertheless are impeachable. But unlike members of Congress, the President and Vice President cannot be subject to lesser discipline (including expulsion) between elections.

Second, it would be extremely awkward politically for the House of Representatives to impeach a member of the Senate, and for the Senate to judge an impeached member of the House. This would also seem to be in conflict with the constitutional prescription that each House judge its own members (in deciding whether to punish or expel) — not those of the other House.

The House's Options

The House of Representatives thus has a number of options open to it in the Condit case: it can do nothing, impose discipline short of expulsion, expel Condit, or decide to initiate impeachment proceedings against him, notwithstanding longstanding — but not judicially enforceable — precedents against doing so. (Some commentators have suggested, alternatively, that Condit be "recalled" by the voters in his district. But a state does not have the authority to provide for the recall of elected federal officials, and there is no federal recall procedure authorized by the constitution.)

The final option, impeachment, is highly unlikely. The first three probably depend on what further serious evidence of wrongdoing is uncovered, the proximity of the next congressional election, and how each party perceives the costs and benefits of action or inaction.

Joel Grossman is professor of political science at Johns Hopkins University and, before that, was for many years professor of political science and law at the University of Wisconsin-Madison. He writes about, and teaches courses on, American Constitutional Law, comparative constitutional law, the judicial process, and other socio-legal subjects. Professor Grossman's e-mail address is

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