Impeachment is often confused with removing an individual from public office. In fact, impeachment is only the first of a two-step process and does not, by itself, result in an individual being removed from office.
Impeachment refers only to a legal statement of charges against an officeholder. It is similar to an indictment in criminal cases. An officeholder that has been impeached must then be tried and convicted before he or she is removed from office.
In Illinois, the impeachment process that is outlined in the state constitution is modeled after the procedures in the U.S. Constitution. Neither the Illinois Constitution nor the U.S. Constitution defines what an impeachable offense is.
Although most people may believe that a criminal offense is necessary for impeachment and conviction, it is not required by either Constitution.
While serving as the U.S. House Republican Leader in 1970, Gerald Ford said, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history."
Only the Illinois House can conduct a legislative investigation to determine if sufficient cause for impeachment exists and only the House can impeach (charge) executive and judicial branch officials.
A majority of the House must vote to impeach (charge) the official.
If the House votes to impeach, only the Senate can conduct the trial. For the trial, Senators must take an oath that they will “do justice according to the law.”
If it is the Governor that is being tried, the Chief Justice of the Supreme Court presides (This is different from the normal procedure of the Senate, in which every two years, the members of the Senate elect a President who presides over the body). It requires a two-thirds vote of the Illinois Senate (the same as the U.S. Senate) to convict an official.
If an official is convicted, the only punishment available is removal from office and being prohibited from holding any other public office. Impeachment is no substitute for criminal prosecution.
Because impeachment is not a substitute for a criminal trial, conviction does not allow the removed officeholder to escape a criminal trial. In fact, the Constitution specifically states that an impeached officer remains liable for criminal prosecution.
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Both the Illinois and U.S. Constitutions give wide latitude for legislators to decide the grounds for impeachment, as well as to determine if the evidence is sufficient for a conviction.
Many persons wrongly assume that an officeholder must commit or be accused of a criminal offense to be impeached. In fact, there is no such requirement.
In 1997, the Legislative Research Unit of the Illinois General Assembly, produced a research paper entitled “Impeachable Offenses under American Law.”
It stated, “Neither the federal nor any state constitution gives a list or a precise description of what offenses are impeachable.”
Reaching back as far as the Federalist Papers of the late 1780s, researchers found that Alexander Hamilton wrote: “The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”
The paper also cited a 1988 Kentucky Law Journal article from Ronald Rotunda of the University of Illinois College of Law, in which “Rotunda read the history of the impeachment provision as not limiting grounds to indictable crimes, but also including serious abuses of power and attempts to subvert the Constitution.”
The Research report also stated, “Rotunda also says linking impeachable offenses to crime would be bad policy because such a definition would be both too broad and too narrow. It would be too broad because it would include crimes with no functional relationship to malfeasance or abuse of office, such as driving while intoxicated. It would also be too narrow because it would protect many abuses of office that are not crimes – such as the executive’s abuse of the pardon power, or a judge’s refusal to decide any cases.”
That same Legislative Research Unit Article referenced Harvard Professor Laurence Tribe’s treatise “American Constitutional Law.”
Tribe, in turn, had cited the leader of the House managers in the impeachment of President Andrew Johnson: “An impeachable high crime or misdemeanor is one in its nature or consequences subversive of some fundamental or essential principle of government or highly prejudicial to the public interest, and this may consist of a violation of the Constitution, of law, of an official oath, or of duty, by an act committed or omitted, or, without violating a positive law, by the abuse of discretionary powers from improper motives or for an improper purpose.”
In reviewing the article of impeachment considered against President Nixon, Tribe wrote: “A showing of criminality is neither necessary nor sufficient for the specification of an impeachable offense.”
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Technically, that may be true. If a majority of the House of Representatives decides that a public official should be impeached he or she can be impeached. But, that has not been the history in Illinois or elsewhere.
Prior to Governor Blagojevich, there was only one known case of impeachment in Illinois History and that was 176 years ago. In that case, a judge was impeached by the Illinois House, but the Senate did not convict him.
Prior to the Blagojevich case, the Senate Rules from the 1833 Impeachment were the only impeachment trial rules ever adopted by the Illinois Senate.
In the mid-1990s, the Illinois House began an impeachment investigation of Supreme Court Justice James Heiple.
The House established a bi-partisan investigating committee and adopted formal rules to govern the committee. The rules covered topics such as subpoenas, notice to witnesses, right to legal counsel, procedures for taking and recording testimony, preservation of the committee records, rules of evidence, etc.
However, no impeachment occurred.
So, while it is possible that the Illinois House of Representatives could impeach an office holder for almost any reason, that has not been the history in Illinois. Similarly, since the case would go to trial in the Senate and since the Senate must convict by a two-thirds margin, it is even less likely that someone would be removed from official for trivial reasons.
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