What Does the Constitution Say About House Impeachment Proceedings

Short Answer: Essentially nothing

|The Volokh Conspiracy |

I've seen a lot of learned commentators on both sides of the impeachment debate arguing that the House *must* follow certain procedures (or not), or that the president *must* cooperate in the following ways (or not). What almost no one ever does is quote the relevant constitutional text, which is ridiculously sparse: "The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment." There is nothing about what procedures the House must or may use, nor is there any indication to what extent the president and other executive branch officials are required to cooperate.

What we do have is historical literature on what impeachment was thought to be in 1789, analogies to other civil, quasi-criminal, and criminal proceedings, past practice by both the executive branch and the House, and any relevant Supreme Court precedents on related matters (even though most impeachment disputes will not be justiciable, all parties still have to fulfill their constitutional obligations, which judicial precedent might speak to.)

But how, for example, would one weigh executive refusal to cooperate if, for example, historical practice, the "best" analogy, and SCOTUS precedent all provide different answers? Color me skeptical that there will generally be definitive answers to the questions raised by impeachment other than however the political process sorts things out.

UPDATE: What about this language from the Constitution? "Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a member."

Some issues: (1) It's not clear that the impeachment process is an ordinary "proceeding." After all, a Senate trial is presided over by the Chief Justice, so know there are outside limits over the trial via the Chief; (2) The Supreme Court found that the authority granted in this language is not absolute when it prohibited the House from expelling Rep. Adam Clayton Powell; (3) Even if the House can make its own rules, one can argue that when it's acting as a quasi-judicial body, it has an obligation to follow its own procedural precedents, just as actual judicial bodies do (even if that obligation is not justiciable in the courts); (4) This begs the question as to whether the House has in fact established any rules for the current proceedings, given that there has been no formal vote to start impeachment proceedings; and (5) Regardless, it still doesn't tell us under what circumstances it's legitimate for the executive branch to resist cooperation with impeachment proceedings.

 

NEXT: 21-Year-Old Oversleeps, Misses Jury Duty, and Goes to Jail for 10 Days

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  1. The House of Representatives … shall have the sole Power of Impeachment.”

    I’d interpret that to require a vote of the house to invoke that power of impeachment. The speaker and her select committee chairs have a lot of power, but hardly the constitutional powers of the whole House.

    1. I’d interpret that to require a vote of the house to invoke that power of impeachment.

      Well, no one disagrees that an actual impeachment requires a majority vote of the House.

      But arguing that an inquiry or investigation requires that is baseless – just jumping aboard the latest groundless claims by Trump et al.

      1. Well, no one disagrees that an actual impeachment requires a majority vote of the House.

        Hmm – not convinced by that.

        The logic of the argument that since the House has the power of impeachment and the constitution does not prescribe or proscribe the method by which they do it, they can do it how they please, implies that :

        (1) the House can delegate its investigatory activities in connection with impeachment to a Committee, and
        (2) the House can also delegate the decision on whether to impeach to a Committee

        Why would the principle of doing it how the hell you like stop short at (a) ?

        I imagine that non delegation principles might prevent the House delegating its decision on impeachment to the Chief Justice, and perhaps there are related principles that would prevent them delegating the decision to the Governor of Nevada or the Queen of England, but those would hardly apply to a Committee of the House.

        Obviously the full House would have had to had a vote to delegate the decision to a Committee but that could have been taken fifty years ago in setting House rules.

        As I mentioned on another thread, we might analogise with the Senate’s power to confirm nominees. The Senate under its rules delegates hearings etc to a Committee ad then takes a full vote on the nomination. But if the delegation of hearings to a Committee is OK, it’s not immediately obvious why the actual confirmation vote shouldn’t be delegated to a Committee too. That would just be the method by which the Senate has decided to exercise its confirmation power.

        1. This is why I think the President has the better if part of the argument: the House can use compulsory process to get just about anything for impeachment (assume this), but it’s the House that has that power, not an individual congressman. It can of course delegate a portion of its power (and if it’s to a member, can even do so without limit), so on your question (2) the answer is yes they can, and could even grant that power to Pelosi on her own. The question then is: have they done so?

          Not being an expert, my understanding is that they’d delegated compulsory unilateral subpoena to committee chairs by adoption of the prior House rules, and which originated in 2015 (or maybe 2014) under a Republican controlled House (previously, the minority could stop such subpoenas). But that delegation was for the oversight of the execution of laws, not under their power to impeach, and since prior impeachments had included such specific power grants that implies that the House (at the time) thought they needed to.

          If that’s so (and that itself is a political question), then the President isn’t ignoring lawful subpoenas, he’s saying he’ll ignore random congressmen asking for things they’re not entitled to, and that if the House actually meant to grant the power those Representatives claim they have the House needs to say so (by voting, since that’s the only way it’s clear what “the House” has done).

          1. That’s more or less my position: Just because the House can do something, doesn’t mean random members of the House can do it without a vote of the House delegating that power to them. The power of the House is the power of the House, not its individual members, and a legislature acts by voting.

            Until they hold the relevant vote, the House isn’t conducting an impeachment investigation, it’s just a few members on their own initiative.

            1. You mean a vote like the one they had to pass 2 USC §192, quoted below?

              1. 2 USC §192 is a criminal law. The House does not enforce criminal laws, the President does.

                The House is welcome to refer the President to the President for prosecution.

  2. My guess is the best source of ‘how the founders imagined an impeachment would be conducted’ (at the lower-than-Prez level) is the Warren Hastings impeachment. For the Constitutional Convention, it was all just a bit of a theory. But Hastings and the East India Company and Hastings successor (Cornwallis) were all very well known in the ‘colonies’. Hastings was arrested and brought to the House of Lords to hear the charges 5 days before the Constitutional Convention began. His case was mentioned during the constitutional convention even tho his formal impeachment didn’t begin for a year.

    I would agree there can never be firm answers for the ultimate impeachment. At core a Prez impeachment is the mother of all power struggles. As Franklin said at the convention – the historic recourse is assassination and that pretty much means – Rule #1 – There are no rules. Whatever the fight ends up looking like is only because those in the power struggle want to appeal to those on the sidelines

  3. I tried to cast aside any partisan feelings and be fairminded about this. But its still extremely difficult to imagine the Democrats being okay with the Republicans poring over reams of doxed Obama convos for a single sentence to impeach him over, even if said problematic sentence could be found.

    I’m also bemused over the polls that have supposedly rocketed a gazillion points for impeachment over the past few days when there hasn’t been any real developments other than Schiff pantomiming a fake transcript. I mean I know the people that still leave their phones open for pollsters these days may not be the sharpest but come on are you guys that easily manipulable?

    As with most things Trump, this saga says a lot more about the nature of society and everybody else than it does about the President.

    1. I hope your post isn’t actually about your attempt to be fair minded here.

      The issue you’re having is that your facts are so partisanized that you are unable to see things from the other side’s point of view.

      1. He is seeing it from the other side’s point of view — being driven by a desire to get an opponent by raking through his papers in violation of the 4th Amendment, as first principle, and than anything untoward being found becomes Nancy and Don Lemon’s sorrow-faces that evening.

        It’s the exact same thing as happened to Bill Clinton.

        1. You’re not making a great case that you really see the other side’s point of view.

    2. But its still extremely difficult to imagine the Democrats being okay with the Republicans poring over reams of doxed Obama convos for a single sentence to impeach him over, even if said problematic sentence could be found.

      Setting aside your misdescription of what is happening, that argument speaks to the merits of impeachment — not to the procedural question of how to conduct impeachment.

  4. I don’t think the manner in which the House conducts its power of impeachment – within the House or irts Committees – is anybody’s business but the House’s.

    The real issue is what powers does the House have against outsiders while it is doing its impeaching.

    I’m confident that there is lots of judicial precedent disagreeing with my view, but since I don’t know what it is, and preemptively disagree with it if it disagrees with me, I shall ignore it.

    I would argue that the existence of the N&P clause, setting out the constitutionally approved procedure for acquiring powers incidental to another constitutional power – by passing laws – is strong evidence for the non existence of inherent penumbral powers emanating naturally from the power of impeachment itself.

    Thus the House’s powers to sub poena witnesses or demand evidence and documents are simply whatever has been set out previously in statute law. So we really don’t need to trouble the courts with a constitutional question – just read whatever the statutes say.

    1. Here’s 2 USC §192:

      Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.

      I can’t see why “any matter under inquiry” would not include impeachment.

      1. I can’t, though, see how that would authorize their threat to dock the pay of any executive branch employee who showed up to testify with counsel present. That threat was pretty hard to justify under any sane reading of the law.

        1. I agree, but I don’t recognize that threat. There have been a few times Democrats have threatened that anyone who prevents a witness from testifying will have their pay withheld, that threat was backed up by a different law. The appropriations joint resolution that became Public Law 116-6, section 713 reads:

          No part of any appropriation contained in this or any other Act shall be available for the payment of the salary of any officer or employee of the Federal Government, who—
          (1) prohibits or prevents, or attempts or threatens to prohibit or prevent, any other officer or employee of the Federal Government from having any direct oral or written communication or contact with any Member, committee, or subcommittee of the Congress in connection with any matter pertaining to the employment of such other officer or employee or pertaining to the department or agency of such other officer or employee in any way, irrespective of whether such communication or contact is at the initiative of such other officer or employee or in response to the request or inquiry of such Member, committee, or subcommittee

          1. Brett, now I think I’ve found what you were referring to. Cipollone claimed that the threat you describe was made

            Worse, the Committees have broadly threatened that if State Department officials attempt to insist upon the right for the Department to have an agency lawyer present at depositions to protect legitimate Executive Branch confidentiality interests-or apparently if they make any effort to protect those confidentiality interests at all-these officials will have their salaries withheld.

            In support he references a “Letter from Eliot L. Engel, Chairman, House Committee on Foreign Affairs, et al., to John J. Sullivan,Deputy Secretary of State 2-3 (Oct. I, 2019).” I can find only one such letter sent on that date, and it is available here. It does cite §713 but does not claim that it would apply to anyone who “showed up to testify with counsel present”.

      2. I wonder if the person charged with prosecuting crimes like that set forth in 2 USC 192 will decide to prosecute it?

        1. Certainly, if the House feels that a crime has been committed, it ought to refer that matter to the person charged with prosecuting crimes.

      3. I would suggest that the context around 2 USC §192 implies that this power was based on their legislative oversight role and not necessarily connected with impeachment. But I can see a plausible argument your way, Voice.

        What I still don’t see is a report confirming that the demands made so far are coming from the House or even from an established committee rather than from individual members acting in their personal capacity.

        1. Right. Vote of the House? They haven’t even held votes of the relevant committees, yet.

  5. So basically Trump is a swell guy who is in no way breaking the law? Good to know…

    I guess you’re right. He doesn’t have to cooperate with an impeachment inquiry in the same way that he doesn’t have to cooperate with other investigations that the House might carry out. O, wait…

    1. You know, I’ve multiple times said that, if we were to be fair about it, every President in my lifetime has done something that would have, in a perfect, (Even merely a better!) world have justified impeachment.

      I just object to the bar being dropped to the floor for Trump, and only Trump, with the tacit expectation that it will be nailed to the ceiling again when the next, presumably Democratic, administration comes in.

      The Obama administration did things that look a thousand times worse to me. Used threats of abusive regulatory action to coerce banks to cut off financial services to legal industries. Arranged for guns to be sold to gun smugglers in order to create the illusion that Mexican cartels were arming themselves from American gun stores. Shipped over a billion dollars in unmarked bills to a hostile power, and structured the transfer to violate reporting requirements, so that nobody would have time to stop it.

      And, yes, conducted surveillance against the opposing party’s Presidential candidate, lying to a FISA court to obtain the warrants.

      I’m still waiting on Trump to do something that would have gotten Obama impeached.

    2. What does “cooperate” mean exactly?

      The President has a privilege against being compelled to disclose certain confidential discussions and documents. This protects his subordinates as well. Its called “Executive Privilege”. Its often invoked in “other investigations” of the House or Senate.

      The Supreme Court in Nixon v. US has held that this does not protect against forced disclosure in a federal criminal proceeding under a Special Prosecutor but impeachment is not criminal.

      So Trump can assert Executive Privilege. The House can use the refusal as an article of impeachment if it wishes.

      The question is if the courts have jurisdiction to enforce cooperation.

  6. Another relevant passage:
    Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a member.

    Those reading into the impeachment language additional procedural requirements for subsidiary investigatory processes aren’t the ones that get to answer the question. Neither is the judiciary.

    1. Nobody is questioning whether the House CAN determine its own rules for this. The question is whether the House HAS done so, when no vote has taken place.

      Why not settle the question, by holding the vote? Obviously because they either doubt the vote would go their way, or are afraid of the political consequences for some of their members of casting that vote. Both these motives are reasons why a vote must be taken; A legislature needs recorded votes for democratic legitimacy.

      1. Why not? Because the President is demanding it, and the President can’t be the one to determine the legitimacy of the impeachment tribunal.

      2. Obviously because they either doubt the vote would go their way, or are afraid of the political consequences for some of their members of casting that vote.

        Nope. 0-for-2. They know the vote will go their way at this point, and they’re not afraid of “political consequences” of a popular impeachment. Rather, they see the polls continually trending their way, and they don’t want to force Republicans in Congress to vote too early. If such a vote were held now, most Republicans would vote against opening an inquiry; once they did so, they would basically be locked in as anti-impeachment votes. So Democrats want to wait for more Republicans to abandon the sinking ship before forcing them to vote.

      3. I think it has, because it has delegated referral power to the Speaker in Rule XII, under which she can refer a bill, resolution or “other matter” to one or more committees if the matter is “related” to their jurisdiction. So, the investigation is valid under the rules. I note that an exception to that rule is that the House does require a resolution to investigate one of its own members, hence the absence of such a rule regarding impeachment bolsters the conclusion that the Speaker has the power to simply refer the matter of impeachment to the committees she has named.

  7. Not really quite seeing the whole picture here in this piece, I’m afraid. What “must” the House follow, at least if it wants to enforce a “subpoena”? Well the Constitution obviously and also the House’s own rules, which fail to delegate any jurisdiction to any committee to conduct an impeach inquiry. We also have House precedent which provides no authority supporting the current clown antics of the House.

    1. the House’s own rules, which fail to delegate any jurisdiction to any committee to conduct an impeach inquiry.

      The House’s rules delegate the powers of investigation of and oversight over the executive branch to multiple committees. That’s all an impeachment “inquiry” is.

      1. Hey, thanks for clearing that up. Notwithstanding that no impeachment process has ever proceeded this way in this country’s history and the complete absence of any such delegation of authority in the House Rules, any old committee chair actually has implied authority to begin a presidential impeachment inquiry on his (or her) own whim. Any time the mood strikes them. No difference than reviewing a cabinet secretary’s decision to order drapes. Not sure you really believe such nonsense, but the democrats sure don’t. They will not attempting to enforce their ridiculous impeachment “subpoenas” in court.

        1. The previous idiot talking point was that they weren’t going to issue subpoenas. When they made idiots look foolish by issuing subpoenas, the idiots simply switched their position to “They’re not going to enforce the subpoenas.”

          Also, I would call you completely full of shit for your claim that “no impeachment process has ever proceeded this way in this country’s history,” except that would be dignifying your comment more than it deserves. It’s not even false; it’s just bullshit in the Frankfurtian sense. You don’t know the first thing about impeachment processes in the country’s history, and you don’t care that you don’t know. It’s just a made up thing you’re saying so you can avoid addressing the moral and intellectual unfitness of the thug in the oval office.

          1. Not quite sure what you mean but you obviously know a thing or two about idiot talking points. Call me full of schiff if you want (why is the left always so angry and unbalanced?). Just identify one House rule providing any committee with authority to conduct a presidential impeachment inquiry. Identify one House precedent that supports this kangaroo democrat process. And we haven’t completely gotten to the complete lack of any wrongdoing, but try telling that to an angry minneapolis antifa mob.

  8. One clear mistake in what you wrote:

    (2) The Supreme Court found that the authority granted in this language is not absolute when it prohibited the House from expelling Rep. Adam Clayton Powell;

    The Supreme Court prohibited the House from refusing to seat Powell. It not only did not prohibit the House from expelling Powell, but refused to take a position on that.

    “we express no view on what limitations may exist on Congress’ power to expel or otherwise punish a member once he has been seated.”

  9. And while we are at it

    It’s not clear that the impeachment process is an ordinary “proceeding.”

    Granted, but the phrase is “the Rules of its Proceedings” not “the Rules of its Ordinary Proceedings”. And, since no other body is nominated as the source of rules for proceedings that are extraordinary, where would you look?

  10. I’m still trying to understand this.

    Congress has oversight powers, so they can subpoena to get information. But the President has executive privilege to decline disclosure of information.

    This privilege, I assume, relates to the fact that tons of information needs to be kept secret, or is simply more valuable to the national interest if kept secret. As George Washington noted, “THE NECESSITY OF PROCURING good Intelligence is apparent & need not be further urged–all that remains for me to add, is, that you keep the whole matter as secret as possible. For upon Secrecy, Success depends in most Enterprizes of the kind, and for want of it, they are generally defeated, however well planned and promising a favourable issue.”

    Now, how on earth is the “impeachment power” related to this? I thought the impeachment power was merely to send articles of impeachment to the Senate. But from what I am reading, it seems like the idea is that the power of impeachment includes some kind of supercharged oversight power that might defeat executive privilege? Is that correct? And if so, can this special power can be exercised by a single Democrat merely stating the words “impeachment inquiry” in a press conference?

    1. Think about the system you envision.

      The House cannot investigate an administration, even to impeach them, if the administration does not consent to being investigated.

      If you don’t see some necessary and proper investigatory power tied to impeachment, you want the President to be effectively immune from oversight.

      1. I’m not envisioning a system, I’m asking for clarification.

        According to Wikipedia (lol), ” Neither executive privilege nor the oversight power of Congress is explicitly mentioned in the United States Constitution.[1] However, the Supreme Court of the United States has ruled that executive privilege and congressional oversight each are a consequence of the doctrine of the separation of powers, derived from the supremacy of each branch in its own area of Constitutional activity.[2]” And, “Executive privilege is the right of the president of the United States and other members of the executive branch to maintain confidential communications under certain circumstances within the executive branch and to resist some subpoenas and other oversight by the legislative and judicial branches of government in pursuit of particular information or personnel relating to those confidential communications. The right comes into effect when revealing information would impair governmental functions. ”

        So, there is oversight, and there is privilege. The two are in tension, and there’s some line to be drawn here, and something about impairment of government functions. Congress or the President may win or lose in a given case.

        Now, here is my question. Setting aside all the debatable niceties and nuances of where and how the line is drawn, is the line drawn any differently in the context of an an “impeachment inquiry” than it would be outside of that context? Such that as a relative matter the oversight power becomes supercharged, and the executive privilege diminished, in the context of an impeachment inquiry?

        To state it yet again in different words, is “impeachment inquiry” like a 10-yard penalty where the line between oversight and privilege gets bumped over?

        1. Just asking questions, when the question is questioning current law, is really more pushing an answer.

          And the answer is that it must be drawn differently, else impeachment is not an operable power.

          1. Thanks. I saw this linked by swood100 in the other thread and it appears to be right on point. It looks like the answer, perhaps unsurprisingly, is subject to some debate.

            Of course the reason to wonder about this is that if an “impeachment inquiry” doesn’t provide some kind of enhanced oversight investigatory powers, then the whole debate over whether a vote is required to launch an impeachment inquiry would be moot legally speaking.

            But if an “impeachment inquiry” does provide enhanced powers, then it would seem odd if you could obtain those powers by simply using the words “impeachment inquiry” in a press conference.

            1. Yes, it is unclear. The title of that article has the words “Formal Impeachment Inquiry” in it but “formal” doesn’t appear anywhere in the body, instead the article discusses investigations and impeachment inquiries/proceedings without clarifying how one becomes the other.
              In US v. Nixon the Court held that the need for evidence in a criminal trial was more compelling than the President’s assertion of executive privilege based on a generalized confidentiality interest. I think it would be consistent with that rationale if congressional subpoenas were weighed according to how compelling is the purpose they are issued for and not whether some ritual had been followed first. That would mean a subpoena to inform possible impeachment gets “impeachment priority”, others get the presumably lower legislative or ordinary oversight priorities, all without magic words. But I can’t point to any support for this, and the law does occasionally like its rituals.

        2. I’ve asked the same question multiple ways. Legal experts have refused to answer.
          I am to believe The House has the power to impeach. Though its not in the constitution they have the power to investigate to find evidence to impeach. Unlike a criminal investigation, the House committees are not required to present evidence to support a subpoena. The House committees can, and do, demand documents and testimony, in hopes of turning something up.
          Today what act has triggered an impeachment investigation?
          The phone call? We have the transcript. A transcript that shows the President exercising his Article II powers.
          Much like the Special Counsel investigation, that we are still waiting for the scope orders that defined the investigation.
          House dems are doing an Impeachment investigation using anonymous sources, in secret. For a political exercise, the people are being kept in the dark.

          1. The phone call? We have the transcript. A transcript that shows the President exercising his Article II powers.

            We don’t have a transcript. And what we do have shows the president acting corruptly.

        3. . . . is the line drawn any differently in the context of an an “impeachment inquiry” than it would be outside of that context?

          An excellent question. The answer is yes, but with a few other examples in addition to impeachment.

          In each case, the difference is the “sole power” clause. It is that which shuts out both checks and balances, and likewise excludes resort to the courts. It also has the effect of super-concentrating political accountability. If the sovereign People dislike the way their delegated power is carried out by a government division trusted with sole power, there will be no way to deflect blame elsewhere at election time. The People seem to expect the sole power clause to bind the designee especially tightly to the sovereign will.

          In exchange for that extra accountability, the People decree extra power. Within explicit sole power constraints, the government division exercises not its usual checked-and-balanced power, but an extraordinary unchecked power, closely akin to sovereignty itself.

          As I mentioned, there are within the Constitution a few similar reservations of sovereign-like power to government divisions. The Senate, to try impeachments gets one. The President gets one with the pardon power, which with regard to criminal convictions acts as an ultimate veto over the judicial branch. The Congress acting jointly gets the power to declare war.

          In all those examples, no other part of government gets a say, and the courts get no opportunity to review. If you look at that structure, it is apparent that it addresses specific areas of concern, about which the founders wrote frequently, and with special urgency—fears about incompetent government, tyrannical government, or reckless political opportunism. In short, the founders worried about happenstance and exceptions—instances where their intended limited government could get out of control, and need correction by the sovereign’s own more-flexible and more-powerful intervention.

          You can discern a pattern. In each such instance—court or executive tyranny, executive malfeasance, irresponsible war making—a sole power designation clears the way for independent action by a division of government, but only under conditions which link the enhanced government power with similarly enhanced political accountability to the sovereign People. And in each instance, only to address a specific case or emergency, before reverting to the status quo.

          After the prescribed conditions for sole power exercise are past, the government division goes back to everyday checks and balances. Court review extends again.

          If you want to see it that way, it is probably not unreasonable to suggest the sole power designations in the Constitution were put there to assure that the People’s sovereignty would not be a mere one-time exercise, but available continuously, to guide government during moments of special need. I do not think I could show that intent with certainty from the historical record. I do know that the founders paid far more attention to questions related to sovereignty—and to the proper interactions between sovereigns and governments—than we do today. Everything I described above strikes me as consistent with the founders’ views on sovereignty, and how it relates to anticipated pitfalls for governments.

          To conclude, I add that except by that kind of analysis, it seems impossible to reconcile the sole power clauses in the Constitution with its normal operations. Other alternative explanations seem to lead to loose ends, contradictions, or disagreements with the historical record.

  11. TLDR; There are no impeachment requirements. They can make up whatever reason they want. That’s why when some story breathlessly claims something is an “impeachable offense” and they have some expert, it’s a fake story.

  12. The Supreme Court found that the authority granted in this language is not absolute when it prohibited the House from expelling Rep. Adam Clayton Powell;

    It did no such thing. On the contrary, it said the House could expel Powell if it liked, but it hadn’t done so. The House’s position was that since expulsion requires a 2/3 vote, and the vote not to seat him carried by more than that, it should be read as a vote to expel him. The Court said it couldn’t do that, because it was possible that some members who’d voted not to seat him would have voted against expelling him.

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