Can Impeachments Be Appealed?

January 25, 1993

The Supreme Court ruled recently that all 100 senators do not have to sit as jurors in impeachment trials -- and that the judiciary could not review impeachment procedures, anyway. The justices relied on this language in the Constitution: "The Senate shall have the sole power to try all impeachments." "Sole power to try" seems to us clearly to allow the Senate to devise its own procedures for impeachment trials. It is not so clear that this language also means there can never be judicial review of those procedures.

Walter L. Nixon was a federal judge who was impeached by the House of Representatives and convicted by the Senate. The conviction cost him his lifetime appointment. The Senate had designated a 12-member committee of senators to hear the evidence and present recommendations to the full Senate for a vote. It claimed not only the right to do this but also the right not to have its decision reviewed in any other place.

Mr. Nixon asked the Supreme Court to overturn the Senate, on the grounds that "try" meant there had to be a trial in the courtroom sense, with all jurors -- the 100 senators -- present for all testimony. Further, he said "try" meant that the Senate's decision was appealable in the federal judicial system, as a trial court's decision would be.

The justices agreed with the Senate that "sole" meant that the Senate could determine how to hold impeachment trials, and also that courts could not overturn a Senate impeachment conviction even if the procedures employed were clearly wrong. We believe the Senate procedure was not only proper but necessary. If the full Senate had to put everything aside every time there was an impeachment, it would never get its other work done. This would mean the end of impeachment as a process.

However, the second part of the decision troubles us, as it troubled Justices Byron White, Harry Blackmun and David Souter.

It is unrealistic to believe the Senate would ever engage in, say, "witch trials" in which clearly improper procedures were employed to remove officials for purely political purposes. But unrealistic things can happen, as Justice Souter pointed out. The federal courts have a constitutional responsibility to review all governmental acts for their constitutionality. The justices should not have foreclosed the courts from dealing with a runaway Senate, no matter how remote the possibility.

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