Judgment - Removal and Disqualification
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.
Article II, section 4 provides that officers impeached and convicted “shall be removed from office”; Article I, section 3, clause 7 provides further that “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.” These restrictions on judgment, both of which relate to capacity to hold public office, emphasize the non-penal nature of impeachment, and help to distinguish American impeachment from the open-ended English practice under which criminal penalties could be imposed.853
The plain language of section 4 seems to require removal from office upon conviction, and in fact the Senate has removed those persons whom it has convicted. In the 1936 trial of Judge Ritter, the Senate determined that removal is automatic upon conviction, and does not require a separate vote.854 This practice has continued. Because conviction requires a two-thirds vote, this means that removal can occur only as a result of a two-thirds vote. Unlike removal, disqualification from office is a discretionary judgment, and there is no explicit constitutional linkage to the two-thirds vote on conviction. Although an argument can be made that disqualification should nonetheless require a two-thirds vote,855 the Senate has determined that disqualification may be accomplished by a simple majority vote.856
853 See discussion supra of the differences between English and American impeachment.
854 3 Deschler’sprecedents Of The United States House Of Representatives ch. 14, § 13.9.
855 See Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional And Historical Analysis 77–79 (2d ed. 2000).
856 The Senate imposed disqualification twice, on Judges Humphreys and Archbald. In the Humphreys trial the Senate determined that the issues of removal and disqualification are divisible, 3 Hinds’ Precedents Of The House Of Representatives § 2397 (1907), and in the Archbald trial the Senate imposed judgment of disqualification by vote of 39 to 35. 6 Cannon’sprecedents Of The House Of Representatives § 512 (1936). During the 1936 trial of Judge Ritter, a parliamentary inquiry as to whether a two-thirds vote or a simple majority vote is required for disqualification was answered by reference to the simple majority vote in the Archbald trial. 3 Deschler’sprecedents ch. 14, § 13.10. The Senate then rejected disqualification of Judge Ritter by vote of 76–0. 80 Cong. Rec. 5607 (1936).