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Background

Back in 1868, President Andrew Johnson was impeached for violating the Tenure of Office Act of 1867 when he tried to remove the secretary of war Edwin Stanton without the Senate's consent. The specific portion that the Senate used in the main article of implachment was Section 2 of the act:

But if the Senate shall refuse to concur in such suspension, such officer so suspended shall forthwith resume the functions of his office, and the powers of the person so performing its duties in his stead shall cease, and the official salary and emoluments of such officer shall, during such suspension, belong to the person so performing the duties thereof, and no to the officer so suspended.

Even though Andrew Johnson's impeachment failed, it is likely that this act would have been rendered unconstitutional as per Myers v. United States:

When on the merits we find our conclusion strongly favoring the view which prevailed in the First Congress, we have no hesitation in holding that conclusion to be correct; and it therefore follows that the Tenure of Office Act of 1867, in so far as it attempted to prevent the President from removing executive officers who had been appointed by him by and with the advice and consent of the Senate, was invalid, and that subsequent legislation of the same effect was equally so.

This sparked my curiosity around articles of impeachment, namely...

Question

If a law used for an article of impeachment is rendered unconstitutional, is that article of impeachment nullified?

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    It's also worth noting that "high crimes and misdemeanors" is a political distinction, not a legal one. No one has to commit a legal crime to be impeached -- it could be for something as simple as an affair with foreign head of state, for example.
    – George Stocker
    Commented Oct 3, 2019 at 15:04

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No. The Constitution does not provide any process for nullifying a conviction after an official is impeached. Impeachment of course is equivalent to a criminal indictment. The impeached official is then tried by the Senate, and if convicted, is removed from office. That decision is final.

Further, impeachment is a political process, not a criminal one. The impeached official need not be guilty of anything that is actually a crime under the law. They can be impeached for "misdemeanors", which has to be understood in the 18th century sense of "bad behavior", not the current one of a minor crime.

PS in response to comments: The phrase "high crimes and misdemeanors" should (as I understand it, but IANAL and would welcome expert, supported corrections) be parsed as (high crimes) and (misdemeanors). "High crimes" is a recognized legal term that existed in English law centuries before the US Constitution. From the Wikipedia article (https://en.wikipedia.org/wiki/High_crimes_and_misdemeanors ), "high crimes" are those which "signifies activity by or against those who have special duties acquired by taking an oath of office that are not shared with common persons. A high crime is one that can only be done by someone in a unique position of authority, which is political in character, who does things to circumvent justice."

Again, "misdemeanors" has a different meaning today than that used by the authors of the Constitution. It could be any sort of "bad behavior", not just something illegal, for instance, if a President spends all his/her time getting drunk and watching porn. Though IMHO that sort of thing might nowadays be handled under the 25th Amendment rather than impeachment.

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    That's "high misdemeanors." The misdemeanors justifying impeachment are those to do with affairs of state. This is something that should have come up more during a the Clinton impeachment.
    – phoog
    Commented Oct 3, 2019 at 4:44
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    @user151841 yes, but that should be parsed as (high (crimes and misdemeanors)) rather than ((high crimes) and (misdemeanors)). If you search for the phrase "high misdemeanors" you'll find that it was used quite a bit in this context in the 18th century. I find it unlikely that the constitutional convention intended the power of impeachment to be wielded against someone who, for example, got into a barroom brawl.
    – phoog
    Commented Oct 3, 2019 at 15:36
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    @pygosceles No, that's correct, at least as an analogue to the two parts of the process. Impeachment by the House is like the "indictment", trial and vote in the Senate is like a "conviction". But you are right that you can't read too much into this analogy; a criminal conviction can be overturned by a court; impeachment and removal cannot.
    – BradC
    Commented Jan 10, 2020 at 19:31
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    @jamesqf equivalence and analogy are two rather distinct concepts. Analogy admits potentially salient and abundant limitations and caveats; equivalence admits none. Clarifying language is desirable.
    – pygosceles
    Commented Jan 12, 2020 at 0:09
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    In response to your edit, which I noticed only now, I would suggest searching for something like "high crimes and misdemeanors" "high misdemeanors". Many legal experts agree with the "high misdemeanors" interpretation. Noah Feldman included it in his testimony to the Judiciary Committee. I also found a review of a 1973 book making the same point. At the root is the fact that the constitutional delegates used language in their discussions that echoes Blackstone's discussion of "high misdemeanors."
    – phoog
    Commented Jan 14, 2020 at 0:09
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In short, no.

More fully, Senators and Representatives are "bound" by just as strong an "Oath or Affirmation" "to support" the Constitution as the Supreme Court is. If a defendant is not innocent under the facts or the terms of the law, a judge may consider whether the law is unconstitutional. Similarly, if in a Senator's opinion, the alleged "high crime" or "misdemeanor" of an official only amounted to violating an unconstitutional law, then the Senator can support the constitution by refusing to convict the official on that charge.

But notice that the Senator is under no obligation to take anyone else's word for whether the law is unconstitutional. The Constitution is designed to accommodate good-faith disagreements among Senators about the constitutionality of laws.

And many a Senator has correctly noted that some Supreme Court rulings were incorrect about the constitutionality of laws. For example, either Plessy v. Ferguson (upholding "separate but equal" laws) or the series of rulings beginning with Brown v. Board of Education (inasmuch as they overturned Plessy) was incorrect. And the Supreme Court does not have the authority to meddle with Senate rules. So in their roles as individual Senators, Senators are under no obligation to take the Supreme Court's word for whether a law is unconstitutional.

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    Your last paragraph is rather vague not to say misleading. In the US the legislative branch cannot overrule the supreme court. They can change the laws though to work around supreme court decisions. In other countries the legislature can outright overrule their supreme court though. For more, see this question which discussed "judicial supremacy" vs "parliamentary supremeacy" in various countries politics.stackexchange.com/questions/33781/… for a dicussion.
    – 264 champagne bottles on ice
    Commented Oct 3, 2019 at 14:12
  • @Fizz -- +1. My point was about Senators' individual consciences, and how they follow their consciences when/if keeping their oaths to "support" the Constitution. Theoretically, Congress can severely restrict the subject matter that is subject to Supreme Court rulings, but that is not the topic of this question. I have revised the paragraph to clarify
    – Jasper
    Commented Oct 3, 2019 at 16:19
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    @Fizz - while the legislative branch can't really overrule the court, that doesn't meant that it has to actually follow its guidance either, except perhaps in some of the narrow ways the legislative branch can take direct action rather than legislate. So for example passing a new law with the exact same provisions just thrown out by the supreme court, while perhaps futile, is possible and in fact many state legislatures seem to come very close to that on controversial issues. Given that the court does not render advisory opinions, interpolating the line is almost a given.
    – Chris Stratton
    Commented Oct 3, 2019 at 19:31
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Moving forward and in terms of its power as a precedent for constitutional legitimacy, yes, such a finding would nullify that article.

Retroactively, no--impeachment cannot exactly be undone, but there is nothing preventing future leaders from recognizing a previous move to impeach as unconstitutional. The effects of impeachment however could not be undone without an amendment to the Constitution. An article of impeachment can exist that is unconstitutional, since it is based on the (arbitrary) will of those sitting in the House of Representatives.

If a premise in an article of impeachment were found to be unconstitutional, it would certainly label those who voted to impeach on that basis without objection to the defective article(s) as being "on the wrong side of history".

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