Key Takeaways
- Every federal impeachment uses the same constitutional standard: treason, bribery, or other high crimes and misdemeanors.
- Three presidents have been impeached, Andrew Johnson, Bill Clinton, and Donald Trump (twice), and the Senate has never voted to remove a president.
- Impeachment is separate from criminal prosecution, so an official acquitted at a criminal trial, like Judge Alcee Hastings, can still be impeached and removed.
What does it take to impeach a president, a federal judge, or the director of the FBI? Must the conduct be a crime, and how much proof is needed?
In this TalksOnLaw Brief, Judge Andrew Napolitano, a former judge of the Superior Court of New Jersey and host of the program Judging Freedom, explains the constitutional standard for impeachment and walks through historical examples of presidents and judges who faced it.
One Standard for All Federal Officers
Judge Napolitano explains that the same standard governs every federal impeachment, whether of the president, the chief justice, the director of the FBI, or the Librarian of Congress: under Article II, Section 4, officers may be removed for "treason, bribery, or other high crimes and misdemeanors." That last phrase, he notes, is the catchphrase. Federal judges have been impeached for bribery, but none in the post-Civil War era has been impeached for treason.
The Presidential Impeachments
Judge Napolitano discusses Andrew Johnson and Bill Clinton, neither of whom was removed from office, and both of whose cases fell into the category of other high crimes and misdemeanors. Johnson was impeached in 1868 in a dispute over the Tenure of Office Act, a statute restricting the removal of federal officeholders, after he removed Secretary of War Edwin Stanton. Clinton was impeached in 1998 for, in Judge Napolitano's words, lying under oath about a matter that did not involve his work as president.
Impeachment Is Not a Criminal Trial
Judge Napolitano illustrates the difference between impeachment and prosecution with Judge Alcee Hastings, who was charged with bribery and acquitted by a jury, yet was impeached by the House and removed from the federal bench by the Senate in 1989; he later served in Congress. In Judge Napolitano's view, the difference reflects different standards of proof: beyond a reasonable doubt in a criminal case, and a preponderance of the evidence in impeachment. The Constitution itself sets no standard of proof for impeachment trials, so each senator decides what to require, and in Nixon v. United States (1993), involving Judge Walter Nixon, the Supreme Court held that the Senate's trial procedures are not reviewable by courts.
What to Know Now
Since Judge Napolitano's discussion of Johnson and Clinton, President Donald Trump has been impeached twice, making him the third president impeached and the only one impeached more than once. In December 2019, the House approved articles charging abuse of power and obstruction of Congress in connection with Ukraine, and in January 2021 it approved an article charging incitement of insurrection after the attack on the Capitol. The Senate acquitted him both times; at the second trial, held after he left office, 57 senators voted to convict, short of the required two-thirds. In 2024, the House impeached Homeland Security Secretary Alejandro Mayorkas, the first cabinet secretary impeached since 1876, and the Senate dismissed the articles without a trial. These episodes renewed a long-running debate. Some scholars argue that "high crimes and misdemeanors" reaches serious abuses of public trust even when no statute is broken, while others contend it should be confined to grave, crime-like misconduct. The Constitution leaves that judgment to the House and Senate, which is why impeachment remains as much a political process as a legal one.
