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The Senate Shall
The Senate Shall
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.
ARTICLE I, SECTION 3, CLAUSE 6
In addition to the requirements in the Constitution's text, three significant questions have arisen
about Senate authority to try impeachments. The first is the minimum the Senate must do once the
House impeaches someone. This question arose after the House's first impeachment in 1797. One
day after the House impeached Senator William Blount, the Senate expelled him by a vote of 25–1.
Blount claimed the Senate lacked authority to try him because Senators were not impeachable and,
in any event, he no longer occupied an office from which he could be removed. The Senate voted to
dismiss the impeachment resolution against the expelled Blount for lack of jurisdiction.
Subsequently, many Senators have construed this vote as supporting their authority to dismiss an
impeachment without a full-scale trial.
The second question is the extent of the Chief Justice's authority as presiding officer to render
unilateral rulings. In the first presidential impeachment trial in 1868, Chief Justice Salmon Chase
claimed the authority to decide certain procedural questions on his own, but the Senate challenged
several of his rulings and overruled him at least twice. In President Clinton's impeachment trial in
1999, Chief Justice William H. Rehnquist ruled on some procedural questions, but the Senate never
challenged, much less overruled, any of these rulings.
A third question revolves around which procedures the Senate must employ in impeachment trials.
Because the Constitution both provides the Senate with the "sole power to try impeachments" and
empowers "Each House...to determine the Rules of its Proceedings," the Senate has formulated its
own special impeachment trial procedures (first written down by Thomas Jefferson when he was
Vice President). In President Johnson's impeachment trial, the Senate formulated an additional set
of rules that have largely remained intact ever since and were followed by the Senate in President
Clinton's impeachment trial.
In 1936, the Senate amended these rules to include Rule XI, which allows the appointment of a
small number of Senators to operate as a trial committee to gather evidence and take testimony.
The Senate has used trial committees on only three occasions in the 1980s to assist with fact-finding
regarding impeachment articles approved by the House against three federal district judges. Before
the Senate and in federal court, all three judges challenged the legitimacy of trial committees. They
argued the Senate's "power to try impeachments" imposed on the full Senate the obligation to
conduct a full trial. The Senate countered that it had complete authority over how to fashion
proceedings and that Senators' political accountability was the only check on this authority.
Ultimately, the Supreme Court accepted the Senate's arguments in Nixon v. United States (1993) on
the principal ground that the Senate's power to try impeachments included the nonreviewable final
discretion to determine how to conduct its trials. The Court did not address the propriety of judicial
review of the Senate's possible deviation from any explicit safeguard required by the Constitution for
impeachment trials.
The Senate settled some other procedural questions raised in the 1980s, including the applicability
of the Fifth Amendment Due Process Clause to and the requisite rules of evidence and burden of
proof for impeachment trials. The Senate ruled that adopting a uniform rule on these questions was
impractical because it lacked the means for enforcing any such rule against Senators. It decided that
each question was a matter for the Senators to decide for themselves.
The Constitution fastens the responsibility of trying impeachments upon the Senate. Yet some
Senators have doubted whether they have the requisite competence to try impeachments. Rule XI
was adopted as a response to poor attendance and preparation by Senators in impeachment trials in
the early twentieth century. Yet even in the 1980s, some Senators claimed that they had not
bothered to prepare before voting, and such proceedings diverted their energies away from
legislative business of greater concern to their constituents. Others argued the proceedings restored
their confidence in the Senate's institutional competence to conduct them. In any event, the Framers
of the Constitution vested that task in the Senate and nowhere else.
The last question is the continuing debate over how effective impeachment is as a remedy for
executive or judicial misconduct. After the acquittal of President Clinton, some commentators have
wondered whether impeachment is a meaningful option for dealing with a popular President's
misconduct. Some believe that Clinton's acquittal strengthened the presidency because it makes it
less likely future Presidents will face serious impeachment attempts for private misconduct. Others
think Clinton's acquittal reflects an appropriate compromise that was consistent with the structure: he
had been impeached by the House and therefore disgraced for his misconduct but not removed from
office. Validation of these competing views must await future impeachment trials.
Michael J. Gerhardt
Samuel Ashe Distinguished Professor in Constitutional Law
Director, Center for Law and Government
The College of William and Mary, Marshall-Wythe School of Law
Further Reading
Case Law
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Impeachment
Punishment for Impeachment
Rules and Expulsion Clause
Standards for Impeachment
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