The procedures which the House of Representatives follow in the impeachment process are governed by three sources: the Constitution, Thomas Jefferson's Manual on Parliamentary Practice and Rules of the House of Representatives, and actual House impeachment precedents.
A. THE CONSTITUTION
Article I, Section 2, Paragraph 5 states that "[t]he House of Representatives shall have the sole power of impeachment." Article I, Section 3, Paragraph 6 states that "[t]he Senate shall have the sole power to try all impeachments." Article II, Section 4 states that "[t]he 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."
Under this system, the substantive law governing impeachment is fixed by the Constitution. The only charges that will sustain an impeachment conviction are ones that prove the commission of treason, bribery, or other high crimes and misdemeanors." It has been established, however, by the Nixon impeachment precedent that the constitutional standard does not require proof of criminal conduct. Rather, "high crimes and misdemeanors" are "constitutional wrongs that subvert the structure of government or undermine the integrity of office... and the Constitution itself..." House Rep. 93-1305, pp. 6-7 (93d Cong., 2d Sess. 1974)
If impeachment charges are brought, they must be proved to the satisfaction of two thirds of the Senate members who sit in judgment on charges brought by the House of Representatives. The House, then, has the constitutional duty to prosecute.
According to Section 2026 ofthe 1974 House Judiciary Committee print on lMPEACHMENT: Selected Materials on Impeachment Procedures (p. 57), the House acts as "grand inquest of the nation and as accusers, becom[ing] suitors for penal justice at the bar" of the Senate. In order for the House to perform its duty, it must conduct an investigation to determine if there is evidence to support whatever charges come to its attention and if that evidence supports a conclusion that the person or persons charged have committed an impeachable offense.
Prior to the House investigations charges must first be made. Normally such charges are made by a House member who introduces a resolution impeaching a named civil officer and calling for an investigation or inquiry. Such action is governed generally by Jefferson's Manual and previous House practices.
B. JEFFERSON'S MANUAL
According to Section 603 of Jefferson's Manual, "there are various methods of setting an impeachment in motion": 1) By charges made on the floor by a member of the House; 2) By charges preferred by a memorial filed by a House member; 3) By charges contained in a Resolution introduced by a House member; 4) By a message from the President; 5) By charges transmitted by a State legislature, or a grand jury; 5) By facts developed and reported by an investigating committee of the House.
According to Section 604 of the Manual, "[a] direct proposition to impeach is a question of high privilege in the House and at once supersedes business otherwise in order under the rules governing the order of business." It does not lose its privilege just because "a similar proposition has been made at a previous time during the same session of Congress." On the other hand, "a resolution simply proposing an investigation, even though impeachment may be a possible consequence, is not privileged." Where, however, "a resolution of investigation positively proposes impeachment or suggests that end, it has been admitted as of privilege."
The evidence supporting an impeachment resolution or a memorial suggesting an impeachment investigation may be based upon a variety of sources, including "common fame." (Section 304) "Common fame" includes information contained in newspaper and other media reports, as well as rumors commonly circulated in the community. The evidence upon which a resolution or memorial is based need not, therefore, be of the kind admissible and sufficient to prove a case in a court of law.
Once an impeachment resolution has been introduced or "charges suggesting impeachment have been made by memorial," the House may order an investigation at once or refer the charges to a Committee for examination and, if the Committee deems it appropriate for an investigation. (Section 605) The Committee may be "a select committee" or a "standing" one. In some instances the Committee has made its "inquiry ex parte," but "in the later practice the sentiment of committees has been in favor of permitting the accused to explain, present witnesses, cross-examine and be represented by counsel." (Section 606)
The purpose of the Committee investigation is to determine if there is sufficient evidence to charge an impeachable offense. If there is, then each "accusation" is to be "exhibited" as an "Article of Impeachment" and, if approved by the full House, "carried to the bar of the Senate" for trial with the House assuming the role of prosecutor. (Section 609)
C. HOUSE PRECEDENTS
1. High Constitutional Privilege.
In order to qualify as a resolution or memorial of high constitutional privilege, the House member must contain a "direct" or "positive" proposal to impeach. A mere proposition to investigate conduct of a civil officer does not qualify as a high constitutional privilege even though impeachment may be contemplated as a possibility or even if the resolution or memorial is presented with "a view to impeachment." See IMPEACHMENT: Selected Materials pp. 66-71 (Sections 2045-2052) and pp. 767-69 (Sections 468-69).
A direct or positive proposal to impeach retains its high constitutional privilege even though the resolution or memorial proposing impeachment also contains a resolution that the impeachment matter be referred to an appropriate House Committee for inquiry or investigation. See IMPEACHMENT: Selected Materials pp. 67-69 (Sections 2046-48). At the same time the resolution calling for an investigation or inquiry cannot also request an appropriation for funds to support the investigation or inquiry. Id. at pp. 767-68 (Section 468).
A direct or positive proposal to impeach takes precedence over everything," even over pending business before the House under a unanimous consent agreement. Id. at p. 770 (Section 469). Indeed, impeachment is a question of constitutional privilege which may be presented at any time irrespective of previous action of the House. Id. at 71 (Section 2053).
2. Rights of the House member Presenting a Privileged Impeachment Resolution.
A member submitting a privileged resolution, memorial or motion proposing impeachment is entitled to recognition for one hour in which to debate it. A member recognized to present a privileged resolution may not be taken from the floor by a motion to refer. IMPEACHMENT: Selected Materials p. 769 (Section 468). In order to secure this privilege of debate, however, the proposal must be put in writing and submitted to the Clerk of the House. Id. at pp. 770-71 (Section 470).
Once having submitted an impeachment resolution against a civil officer, then that member's high privilege has expired. Id. at pp. 769-70 (Section 469). This rule apparently does not apply if the member files an amended impeachment resolution containing new charges or other new matters. Id. at 767-69 (Section 468).
3. Disposition of a Privileged Impeachment Resolution.
Even when an impeachment resolution does not contain within it a referral to a committee for inquiry or investigation, it appears to be the normal procedure for such a resolution to be referred to an appropriate committee -- even when the resolution clearly has absolutely no support in the full House. IMPEACHMENT: Selected Materials pp. 769-70 (Section 469).
According to Jerome Zeifman, however, it is possible that such a resolution could be called up for an immediate vote; but that option appears to be within the control of the Speaker of the House and the Majority Leader. See Zeifman, Without Honor: The Impeachment of Richard Nixon and the Crimes of Camelot pp. 46-47 (1995). Hence, Congressman Robert Drinan's Resolution impeaching Richard Nixon -- filed on July 31, 1973 when there was absolutely no sentiment for impeachment was referred to the House Judiciary Committee. Later, on October 23 and 24, 1973, when 84 such resolutions were introduced, all were referred to the Judiciary Committee.
