Washington Watch: When Federal Judges Are Impeached

The heavy hand of impeachment has been used far more often in American history against federal judges than presidents. According to Wikipedia, 66 federal judges have been investigated for impeachment since the birth of the republic, and 15 have been impeached; of these, eight have been convicted and removed from the federal bench. By contrast, only three American presidents have been impeached—Andrew Johnson (1868), William Jefferson Clinton (1998), and Donald Trump (2019).

Federal judges are covered by the same impeachment provision of the U.S. Constitution that covers presidents. Article II, Section 4 of the Constitution provides for the removal of “the President, Vice Pres-ident, and all civil Officers of the United States…on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” While the term “civil Officers” is not defined by the Constitution, it has been interpreted to apply to members of the judiciary. Just as with presidents, the same two-step constitutional process of impeachment applies. Under Article I of the Constitution, a majority of the House of Representatives must first approve articles of impeachment, and then a two-thirds supermajority of the Senate must convict for the judge to lose his or her office. There is one key difference: in the Senate trial, the vice president, as president of the chamber, presides over a judge’s trial—not the Chief Justice of the United States.

What Judicial Conduct May Be Impeached?

The United States Constitution provides scant guidance as to what offenses serve as grounds for the impeachment of federal judges. As with other government officials, judges may be removed following impeachment and conviction for “Treason, Bribery, or other high Crimes and Misdemeanors.” But this provision collides with Article III, Section 1 of the Constitution, which guarantees that judges “shall hold their Offices during good Behaviour.” The framers borrowed the term “good behaviour” from the British Settlement Act of 1701, in which the British Parliament prescribed protections for English judges. No executive branch officer has such open-ended tenure. Generally, the impeachment power historically has been used by Congress against judges in cases of serious ethical or criminal misconduct.

Of the 15 federal judicial impeachments in American history, the most common charges were making false statements, showing favoritism toward litigants or special appointees, being intoxicated on the bench, and abusing the contempt power. Of the eight judges who have been convicted by the Senate and removed from the bench, seven were district judges. The other was Robert Archbald, who served on the United States Court of Appeals for the Third Circuit and the now-defunct United States Commerce Court until his 1913 removal.

Only one Supreme Court justice has ever been subject to impeachment. Samuel Chase, a Federalist jus-tice appointed by President George Washington, was impeached by a Democratic-Republican House in 1804 for “arbitrary, oppressive, and unjust” decisions on the Court. The Senate declined to remove Chase from the bench, forging precedent that upholds the independence of the judiciary. As former Chief Justice William Rehnquist noted in his 1992 book about the case, “[I]t assured the independence of federal judges from congressional oversight of the decisions they made in the cases that came before them.” Chase’s impeachment occurred on the heels of the first impeachment of a federal judge—John Pickering of the District of New Hampshire—in 1803 on charges of mental instability and intoxication on the bench, resulting in his conviction and removal by the Senate.

Penalties From an Impeachment Conviction

A conviction by the Senate on any article of impeachment is sufficient to constitute a conviction in an impeachment trial. Should a conviction occur, the Senate must determine the appropriate penalty. The Constitution limits the penalty to either removal from office or removal and prohibition against holding any future offices of “honor, Trust or Profit under the Unit-ed States.” Under Senate precedent since 1936, removal from office flows automatically from conviction on an article of impeachment. However, a separate vote is necessary should the Senate deem it appropriate to disqualify the convicted individual from holding future federal offices of public trust.

About the Author

Bruce Moyer is government relations counsel for the FBA. 

About the FBA

Founded in 1920, the Federal Bar Association is dedicated to the advancement of the science of jurisprudence and to promoting the welfare, interests, education, and professional development of all attorneys involved in federal law. Our more than 16,000 members run the gamut of federal practice: attorneys practicing in small to large legal firms, attorneys in corporations and federal agencies, and members of the judiciary. The FBA is the catalyst for communication between the bar and the bench, as well as the private and public sectors. Visit us at fedbar.org to learn more.