Impeachment: Holding Federal Judges Accountable

By Brian J. Donovan

This article originally appeared on Substack.


The congressional power of impeachment constitutes an important aspect of the various checks and balances that were built into the Constitution to preserve the separation of powers. It is a tool, entrusted to the House and Senate alone, to remove government officials in the other branches of government, who either abuse their power or engage in conduct that warrants their dismissal from an office of public trust. (CRS Report R44260, Impeachment and Removal, by Jared P. Cole and Todd Garvey, at 4).


A. Pertinent Constitutional Provisions

The following are the pertinent provisions in the United States Constitution that relate to impeachment:

Article I, Section 2, Clause 5:

The House of Representatives….shall have the sole power of impeachment.

Article I, Section 3, Clauses 6 and 7:

The Senate shall have the sole power to try all impeachments.

Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the Party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.

Article II, Section 2, Clause 1:

The President….shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

Article II, Section 4:

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.

In this regard, it has long been recognized that Federal judges are "civil officers" within the meaning of Article II, Section 4.

Article III, Section 1:

The judges, both of the supreme and inferior courts, shall hold their offices during good behavior….

B. The Meaning of “High Crimes and Misdemeanors”

The committee report accompanying the 1989 Resolution to Impeach United States District Court Judge Walter L. Nixon summarized the British precedents for impeachment, the events at the Constitutional convention leading to the adoption of the "high crimes and misdemeanors" formulation for impeachable conduct, and the interpretation of that term in the 12 judicial impeachments that had occurred prior to 1989. In its summary of the historical meaning of the term, the report noted:

The House and Senate have both interpreted the phrase broadly, finding that impeachable offenses need not be limited to criminal conduct. Congress has repeatedly defined "other high crimes and misdemeanors" to be serious violations of the public trust, not necessarily indictable offenses under criminal laws. (H.R. Rep. No. 101-36, Impeachment of Walter L. Nixon, Jr., Report of the Committee on the Judiciary to Accompany H. Res. 87, 101st Cong., 1st Sess. (1989) [hereinafter “Walter Nixon Impeachment Report”] at 5 (1989)).

In applying these concepts to the conduct of a judge, the Walter Nixon Impeachment Report further stressed that the term “misdemeanor” as used in the Constitution was not intended to denote a minor criminal offense, but rather focused on the behavior of the judge, that is, whether the judge “misdemean[ed]” and thus should be removed:

Indeed, when the phrase "high crimes and misdemeanors" first appeared during the impeachment of the Earl of Suffolk in 1386, the term "misdemeanor" did not denote a violation of criminal law. In the context of impeachment, the word focuses on the behavior of a public official, i.e., his demeanor. Gouverneur Morris, a member of the Committee on Style and Revision of the Constitutional Convention and one of the founding fathers responsible for the final revisions to the Constitution, explained the use of the term "Misdemeanor": "[T]he judges shall hold their offices so long as they demean themselves well, but if they shall misdemean, if they shall, on impeachment, be convicted of misdemeanor, they shall be removed." (Walter Nixon Impeachment Report at 5).

The Walter Nixon Impeachment Report concluded:

Thus, from an historical perspective the question of what conduct by a Federal judge constitutes an impeachable offense has evolved to the position where the focus is now on public confidence in the integrity and impartiality of the judiciary. When a judge's conduct calls into questions his or her integrity or impartiality, Congress must consider whether impeachment and removal of the judge from office is necessary to protect the integrity of the judicial branch and uphold the public trust.

The report that accompanied the Alcee Hastings impeachment resolution stated that the phrase "high crimes and misdemeanors" "refers to misconduct that damages the state and the operations of governmental institutions, and is not limited to criminal misconduct." That Report stressed that impeachment is "non-criminal," designed not to impose criminal penalties, but instead simply to remove the offender from office, and that it is "the ultimate means of preserving our constitutional form of government from the depredations of those in high office who abuse or violate the public trust." The fact that the individual who is impeached and removed from office "shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law," makes it further clear that impeachment is a remedial provision, not a punitive one. (H.R. Rep. No. 100-810, Impeachment of Alcee L. Hastings, Report of the Committee on the Judiciary to Accompany H. Res. 499, 100th Cong., 2d Sess. (1988) [hereinafter "Hastings Impeachment Report"], at 6).

Four judicial impeachments – those of Judge Samuel B. Kent (2009), Judge Walter L. Nixon (1989), Judge Alcee Hastings (1988), and Judge Harry Claiborne (1986) – occurred subsequent to Federal criminal proceedings, and the impeachment articles were to a great extent patterned after the Federal criminal charges. However, the principles that underlie the propriety of impeachment do not require that the conduct at issue be criminal in nature, or that there have been a criminal prosecution.

In connection with the impeachment of Federal Judge George W. English in 1926, the House Committee on the Judiciary noted: "Each case of impeachment must necessarily stand upon its own facts. It can not, therefore, become a precedent or be on all fours with every other case." ("Impeachment of Judge George W. English," excerpts from Cong. Rec. (House), Mar. 25, 1926 (6283-87), reprinted in "Impeachment, Selected Materials, House Comm. on the Judiciary," Comm. Print (1973) at 163 (hereinafter "English Impeachment Report")).

The principles of impeachment do not require that the conduct at issue constitute a specific crime or violation of a civil or regulatory rule of law. Nonetheless, the fact that the conduct alleged to warrant impeachment violates widely accepted ethical standards or particular civil or criminal laws is a relevant consideration that informs, and in this case supports, the decision that impeachment and removal is appropriate. In connection with the impeachment of Judge Harry Claiborne, the accompanying Report referenced the Code of Judicial Conduct for United States Judges as "[o]ne guide to what is considered 'good behavior' befitting a member of the judiciary." The Report noted that Canon 1 (providing that judges should "uphold the integrity" of the judiciary) and Canon 2 (providing that judges should "avoid impropriety and the appearance of impropriety") "reinforce the Committee's determination that Judge Claiborne has brought disrepute upon the profession and severely undermined public confidence in the institution.” (H.R. Rep. No. 99-688, "Impeachment of Judge Harry E. Claiborne, Report of the Committee on the Judiciary to Accompany H. Res. 461," 99th Cong., 2d Sess. 23 (1986)).

One of the articles of impeachment against Judge Harold Louderback accused him of partiality so as "to excite fear and distrust and to inspire a widespread belief in and beyond said northern district of California that causes were not decided in said court according to their merits, but were decided with partiality and prejudice and favoritism to certain individuals….all of which is prejudicial to the dignity of the judiciary." (H. Res. 403 (1933), Articles of Impeachment Against Harold Louderback, reprinted in Impeachment, Selected Materials, House Comm. on the Judiciary, Comm. Print (1973) at 185). This same language was used in the articles of impeachment against Judge George W. English, which accused him of conduct so as to "excite fear and distrust and to inspire a widespread belief….that causes were not decided in said court according to their merits but were decided with partiality and with prejudice and favoritism to certain individuals…." (English Impeachment Report at 163).

C. The Meaning of "Good Behavior"

While Article II, Section 4 of the Constitution specifies the grounds for the impeachment of civil officers as "treason, bribery, and other high crimes and misdemeanors," Article III, Section 1 provides that federal judges "hold their offices during good behavior." One argument posits that these clauses should be read in conjunction, meaning that judges can be impeached and removed from office if they fail to exhibit good behavior or if they are guilty of "treason, bribery, and other high crimes and misdemeanors."

However, while one might find some support for the notion that the "good behavior" clause constitutes an additional ground for impeachment in early twentieth century practice, the "modern view" of Congress appears to be that the phrase "good behavior" simply designates judicial tenure. Under this reasoning, rather than functioning as a ground for impeachment, the "good behavior" phrase simply makes clear that federal judges retain their office for life unless they are removed via a proper constitutional mechanism. The "treason, bribery, and high crimes and misdemeanors" clause thus serves as the sole standard for impeachable conduct for both executive branch officials and federal judges.

D. Pre-Federal Bench Conduct

Judge Archbald was a District Court Judge in the Middle District of Pennsylvania from March 29, 1901 through January 31, 1911, when he was then appointed to the Circuit Court for the Third Circuit. While on the Circuit Court, he also sat on the United States Commerce Court. In 1912 – while Judge Archbald was a circuit court judge – the House voted articles of impeachment against him, alleging improper conduct both as a circuit judge sitting on the Commerce Court (Articles 1 through 6) and in his prior position as a district judge (Articles 7 through 12). Article 13 set forth a "catch-all" article encompassing both district court and Circuit Court/Commerce Court conduct. That Article alleged that Archbald "as such United States district judge and judge of the United States Commerce Court," sought loans from persons who had an interest in the matters "pending in the court over which he presided as judge of the district court, and in suits pending in the United States Commerce Court, of which the said Robert W. Archbald is a Member."

The Archbald Impeachment Report specifically addressed the fact that Articles 7 through 12 were based on judicial conduct that occurred prior to Judge Archbald being appointed to the Circuit Court (from which removal was sought). In the section of the Report entitled “Impeachment for Offenses Committed in Another Judicial Office,” the Report stated:

It is indeed anomalous if the Congress is powerless to remove a corrupt or unfit Federal judge from office because his corruption or misdemeanor, however vicious or reprehensible, may have occurred during his tenure in some other judicial office under the Government of the United States prior to his appointment to the particular office from which he is sought to be ousted by impeachment, although he may have held a Federal judgeship continuously from the time of the commission of his offenses. Surely the House of Representatives will not recognize, nor the Senate apply, such a narrow and technical construction of the constitutional provisions relating to impeachments. (H. Res. 622, 62d Cong., 2d Sess (1912) (Articles of Impeachment against Judge Robert W. Archbald), 48 Cong Rec. (House) July 8, 1912 (8705-08), reprinted in Impeachment, Selected Materials, House Comm. on the Judiciary, Comm. Print (1973) at 175).

At the Task Force Hearing of December 15, 2009 for the Impeachment of Judge Porteous, Professor Michael Gerhardt testified that though Article II of the Constitution describes certain types of conduct for which impeachment is warranted ("Treason, Bribery, or other high Crimes and Misdemeanors"), "it does not say when the misconduct must have been committed," and certainly does not require that such conduct occur during the tenure of the Federal office from which impeachment is sought. As Professor Gerhardt noted, "[t]he critical questions are whether Judge Porteous committed such misconduct and whether such misconduct demonstrates the lack of integrity and judgment that are required in order for him to continue to function" as a Federal judge.

In sum, there is simply no basis in the Constitution, nor is there a basis in policy, for the House or Senate to adopt a narrow or technical reading of the Constitution so as to divest themselves of the power to consider pre-Federal bench conduct as a grounds for impeachment.

E. Impeachment vs. Criminal Prosecution

The nature of Congress’s determination whether to impeach is fundamentally different from DOJ’s decision whether to prosecute. Congress does not decide guilt or innocence with reference to a criminal statute. Rather, it is for Congress to make what is in essence a "fitness for office" determination. Congress alone has the power to remove an unfit Federal judge, and conduct that renders a judge unfit may not necessarily violate a criminal statute.

Even though aspects of a judge’s conduct may appear to support a criminal prosecution, the Department of Justice may face numerous practical obstacles that would necessarily impact its considerations as to whether prosecution is in order for certain categories of conduct. One problem in particular involves the statute of limitations – a potentially insurmountable hurdle in a criminal prosecution, but not a bar to impeachment. Some of the most corrupt conduct may be time-barred by the statute of limitations. Nonetheless, such conduct, even if it cannot be used to support a Federal criminal prosecution, is profoundly relevant to the determination of whether a judge should remain a Federal judge.

The following language from the House Report accompanying the Judge Walter L. Nixon, Jr., and Samuel B. Kent Articles of Impeachment aptly sets out the core principles underlying and justifying the Impeachment Resolution against Judge Porteous:

The [House’s] role is not to punish [Judge Porteous], but simply to determine whether articles of impeachment should be brought. Under our Constitution, the American people must look to the Congress to protect them from persons unfit to hold high office because of serious misconduct that has violated the public trust. Where, as here, the evidence overwhelmingly establishes that a Federal judge has committed impeachable offenses, our duty requires us to bring articles of impeachment and to try him before the United States Senate. (H.R. Rep. No. 111-427, “Impeachment of Judge G. Thomas Porteous, Jr., Report of the Committee on the Judiciary to Accompany H. Res. 1031,” 111th Cong., 2d Sess. (2010)).


(1) The question of what conduct by a Federal judge constitutes an impeachable offense has evolved to the position where the focus is now on public confidence in the integrity and impartiality of the judiciary; and

(2) Under our Constitution, the American people must look to the Congress to protect them from Federal judges who are unfit to hold high office because of serious misconduct that has violated the public trust.