Impeachment and United States Senate Trial Power
Article II, Section 4 of the Constitution describes the exclusive basis for impeachment: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” The limited and special impeachment power of congress was designed specifically to “remove from office” sitting officers of the United States. Thus, the impeachment process has therefore never been invoked against a civilian or an official that has left office, because the Constitution is clear on this limitation.
Article 1, Section 3, Clause 6 of the United States Constitution grants the United States Senate the following limited authority to conduct an impeachment trial:
“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.”
There are three strict requirements for Senate impeachment. First, the requirement that Senators take a special “Oath or Affirmation” was designed to impress upon Senators the extreme seriousness of their duty to follow the Constitutional requirements. Second, the requirement for the Chief Justice to preside over presidential impeachment trials was designed to avoid any conflict of interest of a Vice President or other political designee from presiding over the proceeding. And third, the supermajority requirement was designed to make removal from office possible only by super-consensus that transcends political lines.
On February 9, 2021, Senators will take a special “Oath or Affirmation” to emphasize that they will strictly follow the Constitutional requirements for an impeachment trial that will be conducted for the first time in history on a civilian, a process over which the Chief Justice of the United States Supreme Court will not preside. If the Senate’s limited power to conduct an impeachment trial is to “remov[e] from office” a sitting elected official, and such a trial may only be presided over by the Chief Justice, what duties exactly are the Senators affirming that they will follow when they take their special oath on February 9, and what type of proceeding will they be conducting?