[Impeachment of President William Jefferson Clinton - The Evidentiary Record Pursuant to S. Res. 16 - Index to Senate Document 106-3, Vols. I-XXIV]
[Volume XVII - "Constitutional Grounds for Presidential Impeachment: Modern Precedents" Committee Print, Ser. No. 9, November 1998 ]
[From the U.S. Government Printing Office, www.gpo.gov]


106th Congress                                                 Document
1st Session                      SENATE                          106-3
_______________________________________________________________________

                                     



                       IMPEACHMENT OF PRESIDENT
                       WILLIAM JEFFERSON CLINTON

                               __________

 
                         THE EVIDENTIARY RECORD
                         PURSUANT TO S. RES. 16
                              VOLUME XVII

     ``Constitutional Grounds for Presidential Impeachment: Modern 
        Precedents'' Committee Print, Ser. No. 9, November 1998

[GRAPHIC] [TIFF OMITTED] TONGRESS.#13


   Printed at the direction of Gary Sisco, Secretary of the Senate, 
         pursuant to S. Res. 16, 106th Cong., 1st Sess. (1999)

                January 8, 1999.--Ordered to be printed


105th Congress 
2d Session                  COMMITTEE PRINT                  Ser. No. 9
_______________________________________________________________________

                                     


          CONSTITUTIONAL GROUNDS FOR PRESIDENTIAL IMPEACHMENT:

                           MODERN PRECEDENTS

                               __________


             REPORT BY THE STAFF OF THE IMPEACHMENT INQUIRY

                               __________

                       COMMITTEE ON THE JUDICIARY

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED FIFTH CONGRESS


                        Henry J. Hyde, Chairman

                                     
[GRAPHIC] [TIFF OMITTED] TONGRESS.#13

                                     

                             NOVEMBER 1998
                       COMMITTEE ON THE JUDICIARY

                   HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        BARNEY FRANK, Massachusetts
BILL McCOLLUM, Florida               CHARLES E. SCHUMER, New York
GEORGE W. GEKAS, Pennsylvania        HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina         RICK BOUCHER, Virginia
LAMAR SMITH, Texas                   JERROLD NADLER, New York
ELTON GALLEGLY, California           ROBERT C. SCOTT, Virginia
CHARLES T. CANADY, Florida           MELVIN L. WATT, North Carolina
BOB INGLIS, South Carolina           ZOE LOFGREN, California
BOB GOODLATTE, Virginia              SHEILA JACKSON LEE, Texas
STEPHEN E. BUYER, Indiana            MAXINE WATERS, California
ED BRYANT, Tennessee                 MARTIN T. MEEHAN, Massachusetts
STEVE CHABOT, Ohio                   WILLIAM D. DELAHUNT, Massachusetts
BOB BARR, Georgia                    ROBERT WEXLER, Florida
WILLIAM L. JENKINS, Tennessee        STEVEN R. ROTHMAN, New Jersey
ASA HUTCHINSON, Arkansas             THOMAS BARRETT, Wisconsin
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California

                             Majority Staff

         Thomas E. Mooney, Sr., Chief of Staff-General Counsel
          Jon W. Dudas, Deputy General Counsel-Staff Director
         Diana L. Schacht, Deputy Staff Director-Chief Counsel
               Daniel M. Freeman, Parliamentarian-Counsel
       Paul J. McNulty, Director of Communications-Chief Counsel
                    Joseph H. Gibson, Chief Counsel
                         Rick Filkins, Counsel
                       Sharee M. Freeman, Counsel
                       Peter J. Levinson, Counsel
                       John F. Mautz, IV, Counsel
                     William E. Moschella, Counsel
                        Stephen Pinkos, Counsel

George M. Fishman, Chief Counsel     David P. Schippers, Chief 
Mitch Glazier, Chief Counsel             Investigative Counsel
John H. Ladd, Chief Counsel            
Raymond V. Smietanka, Chief Counsel  Susan Bogart, Investigative 
Laura Ann Baxter, Counsel                Counsel
Daniel J. Bryant, Counsel            John C. Kocoras, Counsel
Cathleen A. Cleaver, Counsel         Berle S. Littmann, Investigator
Vince Garlock, Counsel               Charles F. Marino, Counsel
James W. Harper, Counsel             Jeffery J. Pavletic, Investigative 
Susan Jensen-Conklin, Counsel            Counsel
Debra K. Laman, Counsel              Thomas M. Schippers, Investigative 
Blaine S. Merritt, Counsel               Counsel
Nicole R. Nason, Counsel             Albert F. Tracy, Investigator
Glenn R. Schmitt, Counsel            Peter J. Wacks, Investigator
Jim Y. Wilon, Counsel                Diana L. Woznicki, Investigator

                             Minority Staff

         Julian Epstein, Minority Chief Counsel-Staff Director
Perry H. Apelbaum, Minority General  Abbe D. Lowell, Minority Chief 
    Counsel                              Investigative Counsel
David G. Lachman, Counsel            Sampack P. Garg, Investigative 
Cynthia A. R. Martin, Counsel            Counsel
Stephanie J. Peters, Counsel         Stephen F. Reich, Investigative 
Samara T. Ryder, Counsel                 Counsel
Brian P. Woolfolk, Counsel           Deborah L. Rhode, Investigative 
                                         Counsel
                                     Kevin M. Simpson, Investigative 
                                         Counsel
                                     Lis W. Wiehl, Investigative 
                                         Counsel


                            C O N T E N T S

                              ----------                              
                                                                   Page
Foreword.........................................................     1
Introduction.....................................................     2
Impeachment ``Standards''........................................     3
Impeachments of the 1980's.......................................     4
    A. The Impeachment of Judge Claiborne........................     5
    B. The Impeachment of Judge Nixon............................     9
    C. The Impeachment of Judge Hastings.........................    13
Impeachment Proceedings Against President Nixon..................    14
Conclusion.......................................................    16

                               Appendix 1

Recent American Impeachment Proceedings..........................    19
    1. President Richard Nixon...................................    19
    2. District Judge Harry Claiborne............................    21
    3. District Judge Walter Nixon, Jr...........................    23
    4. District Judge Alcee Hastings.............................    25

                               Appendix 2

Constitutional Grounds for Presidential Impeachment, report 
  written in 1974 by the impeachment inquiry staff of the House 
  Committee on the Judici- ary...................................    28
  
[GRAPHIC] [TIFF OMITTED] T3456.000

                              INTRODUCTION

    The United States Constitution provides that ``[t]he 
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.'' \1\
---------------------------------------------------------------------------
    \1\ U.S. Const. art. II, Sec. 4. ``The House of Representatives . . 
. shall have the sole Power of Impeachment.'' Id. at art. I, Sec. 2, 
cl. 5. ``The Senate shall have the sole Power to try all 
Impeachments.'' Id. at art. I, Sec. 3, cl. 6. ``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.'' Id. at art. I, Sec. 3, cl. 7.
---------------------------------------------------------------------------
    In 1974, the House of Representatives directed the 
Judiciary Committee to investigate whether sufficient grounds 
existed for the House to impeach President Richard Nixon. The 
impeachment inquiry staff prepared a memorandum on the 
constitutional grounds for presidential impeachment. The staff 
memorandum, entitled Constitutional Grounds for Presidential 
Impeachment, reported on ``the history, purpose and meaning of 
the constitutional phrase, `Treason, Bribery, or other high 
Crimes and Misdemeanors.' '' \2\ Then Judiciary Committee 
Chairman Peter Rodino, Jr., stated in a foreword that ``the 
views and conclusions contained in the report are staff views 
and do not necessarily reflect those of the committee or any of 
its members.'' \3\ In any event, over the ensuing years the 
memorandum has become one of the leading and most cited sources 
as to the grounds for impeachment.
---------------------------------------------------------------------------
    \2\ Staff of House Comm. on the Judiciary, 93rd Cong., 2d Sess., 
Constitutional Grounds for Presidential Impeachment 3 (Comm. Print 
1974)(hereinafter cited as ``1974 Staff Report'').
    \3\ Id. at iii.
---------------------------------------------------------------------------
    In 1998, the Committee has again been directed to 
investigate whether sufficient grounds exist for the House to 
impeach a president. On September 11, the House of 
Representatives passed H.Res. 525, which provided that the 
Committee review the communication received on September 9 from 
Independent Counsel Kenneth Starr in which he transmitted his 
determination that substantial and credible information 
received by his office might constitute grounds for an 
impeachment of President Clinton, and determine whether 
sufficient grounds did in fact exist to recommend to the House 
that an impeachment inquiry be commenced. \4\ After reviewing 
the evidence submitted, the Committee voted to recommend that 
an impeachment inquiry be commenced and reported a resolution 
to the House authorizing an inquiry. On October 8, the House 
passed H.Res. 581, which directed the Committee to conduct such 
an inquiry to investigate fully and completely whether 
sufficient grounds exist for the House to exercise its 
constitutional power to impeach President Clinton.
---------------------------------------------------------------------------
    \4\ The Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 
Stat. 1824 (codified as amended at 28 U.S.C. Sec. Sec. 591-99 (1994 & 
Supp. 1996)) provides that an independent counsel ``shall advise the 
House of Representatives of any substantial and credible information 
which such independent counsel receives, in carrying out the 
independent counsel's responsibilities under this chapter, that may 
constitute grounds for an impeachment.'' 28 U.S.C. Sec. 595(c) (1994). 
See Referral from Independent Counsel Kenneth W. Starr in Conformity 
with the Requirements of Title 28, United States Code, Section 595(c), 
H.R. Doc. No. 105-310, 105th Cong., 2d Sess. (1998).
---------------------------------------------------------------------------
    The Chairman of the Committee has asked the impeachment 
inquiry staff to update the 1974 report for the benefit of the 
Committee's members. The present memorandum was written for 
that purpose and is designed to be read in conjunction with the 
1974 report (which is attached as an appendix).
    This memorandum takes into account the four impeachment 
inquiries and three convictions that have taken place since the 
1974 report was written. The 1974 report stated that the 
``American experience with impeachment [is among the] best 
available sources for developing an understanding of the 
function of impeachment and the circumstances in which it may 
become appropriate in relation to the presidency.'' \5\ The 
present memorandum relies on this insight and will utilize the 
impeachment proceedings of the last quarter century to provide 
guidance to the members of this Committee in the difficult 
duties they must perform.
---------------------------------------------------------------------------
    \5\ 1974 Staff Report, supra note 2, at 4.
---------------------------------------------------------------------------
    As with the 1974 report, this memorandum's views and 
conclusions are those of the staff and do not necessarily 
reflect those of the Committee or any of its members.

                       IMPEACHMENT ``STANDARDS''

    The goal of this memorandum is not to define which offenses 
in the abstract render a federal official impeachable. The 1974 
report recognized why such an effort would be ill-conceived:
          Delicate issues of basic constitutional law are 
        involved. Those issues cannot be defined in detail in 
        advance of full investigation of the facts. The Supreme 
        Court of the United States does not reach out, in the 
        abstract, to rule on the constitutionality of statutes 
        or of conduct. Cases must be brought and adjudicated on 
        particular facts in terms of the Constitution. 
        Similarly, the House does not engage in abstract, 
        advisory or hypothetical debates about the precise 
        nature of conduct that calls for the exercise of its 
        constitutional powers; rather, it must await full 
        development of the facts and understanding of the 
        events to which those facts relate.
          . . . . [This memorandum] is intended to be a review 
        of the precedents and available interpretive materials, 
        seeking general principles to guide the Committee.
          This memorandum offers no fixed standards for 
        determining whether grounds for impeachment exist. The 
        framers did not write a fixed standard. Instead they 
        adopted from English history a standard sufficiently 
        general and flexible to meet future circumstances and 
        events, the nature and character of which they could 
        not foresee. \6\
---------------------------------------------------------------------------
    \6\ Id. at 2.
---------------------------------------------------------------------------
    A commentator, Michael Gerhardt, writes in his recent book 
The Federal Impeachment Process: A Constitutional and 
Historical Analysis, \7\ that both Alexander Hamilton and 
Supreme Court Justice Joseph Story, the document's greatest 
nineteenth century interpreter, share this view. He finds that: 
``[t]he implicit understanding shared by Hamilton and Justice 
Story was that subsequent generations would have to define on a 
case-by-case basis the political crimes comprising impeachable 
offenses to replace the federal common law of crimes that never 
developed.'' \8\ He quotes Hamilton as stating that ``the 
impeachment court could not be `tied down' by strict rules 
`either in the delineation of the offense by the prosecutors 
[the House of Representatives] or in the construction of it by 
the judges [the Senate].' '' \9\ He quotes Story as stating 
that `` `political offenses are of so various and complex a 
character, so utterly incapable of being defined, or 
classified, that the task of positive legislation would be 
impracticable, if it were not almost absurd to attempt it.' '' 
\10\
---------------------------------------------------------------------------
    \7\ Michael J. Gerhardt, The Federal Impeachment Process: A 
Constitutional and Historical Analysis (1996).
    \8\ Id. at 106 (emphasis added).
    \9\ Id. at 105 (footnote omitted), quoting The Federalist No. 65, 
at 396 (Alexander Hamilton)(Clinton Rossiter ed., 1961).
    \10\ Gerhardt, supra note 7, at 105-06 (footnote omitted), quoting 
J. Story, Commentaries on the Constitution (R. Rotunda & J. Nowak eds., 
1987).
---------------------------------------------------------------------------
    The impeachment clause is not the only example of a 
constitutional provision that must be interpreted in the 
context of the facts of particular cases. The due process 
clauses of the fifth and fourteenth amendments are others. \11\ 
The Supreme Court has stated that ``[i]t is by now well 
established that ` `due process,' unlike some legal rules, is 
not a technical conception with a fixed content unrelated to 
time, place and circumstances.' . . . `[D]ue process is 
flexible and calls for such procedural protections as the 
particular situation demands.' '' \12\ The Fifth Circuit adds 
that `` ` `due process is an elusive concept. Its exact 
boundaries are undefinable, and its content varies according to 
specific factual contexts.' ' '' \13\
---------------------------------------------------------------------------
    \11\ ``[N]or shall any person . . . be deprived of life, liberty, 
or property, without due process of law. . . .'' U.S. Const. amend. V. 
``[N]or shall any State deprive any person of life, liberty, or 
property, without due process of law . . . .'' U.S. Const. amend. XIV, 
Sec. 1.
    \12\ Gilbert v. Homar, 138 L. Ed.2d 121, 127 (1997), quoting 
Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 895 (1961) & 
Morrissey v. Brewer, 408 U.S. 471, 481 (1972). The Supreme Court has 
developed a three factor balancing test to help determine the specific 
dictates of due process. See Mathews v. Eldridge, 424 U.S. 319, 335 
(1976).
    \13\ Hernandez v. Cremer, 913 F.2d 230, 237 (5th Cir. 1990), 
quoting Continental Air Lines, Inc. v. Dole, 784 F.2d 1245, 1248 (5th 
Cir. 1986) (quoting Woodbury v. McKinnon, 447 F.2d 839, 843 (5th Cir. 
1971))(quoting Hannah v. Larche, 363 U.S. 420, 442 (1960)).
---------------------------------------------------------------------------
    These principles should be kept in mind when interpreting 
the impeachment proceedings that follow. Different fact 
patterns might lead to different results.

                       IMPEACHMENTS OF THE 1980's

    Three sitting federal judges were impeached in the 1980's. 
It is to be hoped that their misdeeds were isolated instances 
and not indications of a broader problem in our federal 
judicial system. In any event, they were extremely troubling.
    The judicial impeachments of the 1980's provide insights 
for members of the Committee as they consider possible articles 
of impeachment against President Clinton. The offenses 
committed by the three judges that led to their impeachments 
have some similarities to the offenses President Clinton is 
charged with committing.
    It has been argued, however, that offenses that can lead to 
impeachment when committed by federal judges do not necessarily 
rise to this level when committed by a president, because a 
different constitutional standard applies. The basis for this 
argument is said to be that Article III judges under the 
Constitution ``shall hold their Offices during good Behavior'' 
\14\ and thus that judges are impeachable for ``misbehavior'' 
while other federal officials are only impeachable for treason, 
bribery, and other high crimes and misdemeanors.
---------------------------------------------------------------------------
    \14\ U.S. Const. art. III, Sec. 1.
---------------------------------------------------------------------------
    The 1974 Staff Report rejected this argument. The report 
asked whether the good behavior clause ``limit[s] the relevance 
of the . . . impeachments of judges with respect to 
presidential impeachment standards as has been argued by 
some[.]'' \15\ The report answered: ``It does not. . . . [T]he 
only impeachment provision . . . included in the Constitution . 
. . applies to all civil officers, including judges, and 
defines impeachment offenses as `Treason, Bribery, and other 
high Crimes and Misdemeanors.' '' \16\
---------------------------------------------------------------------------
    \15\ 1974 Staff Report, supra note 2, at 17.
    \16\ Id.
---------------------------------------------------------------------------
    The conclusion of the staff report is bolstered by the 
findings of the National Commission on Judicial Discipline and 
Removal, chaired by Robert Kastenmeier, former Chairman of the 
Committee's then Subcommittee on Courts, Civil Liberties and 
the Administration of Justice and one of the House managers 
during the Senate trial of Judge Claiborne. The Commission 
concluded that ``the most plausible reading of the phrase 
`during good Behavior' is that it means tenure for life, 
subject to the impeachment power. . . . The ratification 
debates about the federal judiciary seem to have proceeded on 
the assumption that good-behavior tenure meant removal only 
through impeachment and conviction.'' \17\
---------------------------------------------------------------------------
    \17\ National Commission on Judicial Discipline and Removal, Report 
of the National Commission on Judicial Discipline and Removal 17-18 
(1993)(footnote omitted).
---------------------------------------------------------------------------
    The record of the judicial impeachments which follows also 
argues against different standards for impeachable offenses 
when committed by federal judges as when committed by 
presidents.
A. THE IMPEACHMENT OF JUDGE CLAIBORNE \18\
---------------------------------------------------------------------------
    \18\ See Appendix 1 for sources and a description of the articles 
of impeachment and the proceedings against Judge Claiborne.
---------------------------------------------------------------------------
    U.S. District Court Judge Harry E. Claiborne was impeached 
in 1986. At the time of his impeachment, he was serving a 
sentence in federal prison for filing false federal income tax 
returns. Judge Claiborne had signed written declarations that 
the returns were made under penalty of perjury. The crimes of 
violating the Internal Revenue Code for which he was convicted 
formed the basis for the three articles of impeachment on which 
he was also convicted.
    The judgement by Congress regarding Judge Claiborne was 
harsh. Hamilton Fish, ranking member of the Judiciary Committee 
and one of the House managers in the Senate trial, stated that:
          Judge Claiborne's actions raise fundamental questions 
        about public confidence in, and the public's perception 
        of, the Federal court system. They serve to undermine 
        the confidence of the American people in our judicial 
        system. . . . Judge Claiborne is more than a mere 
        embarrassment. He is a disgrace--an affront--to the 
        judicial office and the judicial branch he was 
        appointed to serve. \19\
---------------------------------------------------------------------------
    \19\ 132 Cong. Rec. H4713 (daily ed. July 22, 1986).
---------------------------------------------------------------------------
    Committee Chairman and House manager Peter Rodino, Jr., 
said on the Senate floor that:
          Judge Harry E. Claiborne is, and will forever remain, 
        a convicted felon--a man who cannot legitimately 
        preside over judicial proceedings, who cannot with any 
        respect for decency pass judgement on other persons, 
        and who cannot hope to maintain the trust and the 
        respect of the American people.
          . . . . He has earned a mark of shame, which the 
        evidence proves is sadly but unequivocally deserved. 
        \20\
---------------------------------------------------------------------------
    \20\ 132 Cong. Rec. S15,495-96 (daily ed. Oct. 7, 1986).
---------------------------------------------------------------------------
    The record of Judge Claiborne's impeachment proceedings 
says much about what offenses might justify impeachment. The 
proceedings make it clear that an individual can be impeached 
for conduct not related to his or her official duties. Hamilton 
Fish stated that ``[i]mpeachable conduct does not have to occur 
in the course of the performance of an officer's official 
duties. Evidence of misconduct, misbehavior, high crimes, and 
misdemeanors can be justified upon one's private dealings as 
well as one's exercise of public office. That, of course, is 
the situation in this case.'' \21\
---------------------------------------------------------------------------
    \21\ 132 Cong. Rec. H4713 (daily ed. July 22, 1986).
---------------------------------------------------------------------------
    Representative Fish's views were reinforced by now chairman 
of the Judiciary Committee and then House manager Henry Hyde, 
who stated that ``the decision to impeach and convict . . . 
stands as an admonition to others in public life. It is an 
opportunity for Congress to restate and reemphasize the 
standards of both personal and professional conduct expected of 
those holding high Federal office.'' \22\ House manager Romano 
Mazzoli stated that impeachment reached ``corruption, 
maladministration, gross neglect of duties and other public and 
private improprieties committed by judges and high Government 
officials which rendered them unfit to continue in office.'' 
\23\
---------------------------------------------------------------------------
    \22\ 132 Cong. Rec. H4716 (daily ed. July 22, 1986).
    \23\ 132 Cong. Rec. H4717 (daily ed. July 22, 1986).
---------------------------------------------------------------------------
    Additional evidence that personal misconduct can lead to 
impeachment is provided by the fact that Judge Claiborne's 
motion that the Senate dismiss the articles of impeachment for 
failure to state impeachable offenses was unsuccessful. One of 
the arguments his attorney made for the motion was that ``there 
is no allegation . . . that the behavior of Judge Claiborne in 
any way was related to misbehavior in his official function as 
a judge; it was private misbehavior.'' \24\
---------------------------------------------------------------------------
    \24\ Hearings Before the Senate Impeachment Trial Committee, 99th 
Cong., 2d Sess. 77 (1986)(hereinafter cited as ``Senate Claiborne 
Hearings'')(statement of Judge Claiborne's counsel, Oscar Goodman). See 
also Memorandum in Support of Motion to Dismiss the Articles of 
Impeachment on the Grounds They Do Not State Impeachable Offenses 3 
(hereinafter cited as ``Claiborne Motion''), reprinted in Senate 
Claiborne Hearings at 245, 246.
---------------------------------------------------------------------------
    Representative Kastenmeier responded by stating that ``it 
would be absurd to conclude that a judge who had committed 
murder, mayhem, rape, or perhaps espionage in his private life, 
could not be removed from office by the U.S. Senate.'' \25\ 
Kastenmeier's response was repeated by the House of 
Representatives in its pleading opposing Claiborne's motion to 
dismiss. \26\
---------------------------------------------------------------------------
    \25\ Senate Claiborne Hearings, supra note 24, at 81.
    \26\ U.S. House of Representatives, Opposition to Motion to Dismiss 
Articles of Impeachment for Failure to State Impeachable Offenses 2 
(hereinafter cited as ``Opposition to Claiborne Motion''), reprinted in 
Senate Claiborne Hearings, supra note 24, at 441, 442.
---------------------------------------------------------------------------
    The House went on to state that:
          [Claiborne's] narrow view of impeachable offenses 
        expressly was offered and rejected by the Framers of 
        the Constitution.
          . . . . As originally drafted, the impeachment clause 
        provided that the President should be ``removable on 
        impeachment and conviction of malpractice or neglect of 
        duty.'' . . . The provision was subsequently revised to 
        make the President impeachable for ``treason, bribery 
        or corruption.'' . . . Colonel Mason moved to add the 
        phrase ``or maladministration'' after ``bribery.'' . . 
        . In response, James Madison objected that 
        ``maladministration'' was too narrow a standard. Mason 
        soon withdrew his amendment and substituted the phrase 
        ``or other high crimes and misdemeanors.'' This 
        formulation was accepted, along with an amendment to 
        extend the impeachment sanction to the Vice President 
        and all other civil officers. . . . The Framers thus 
        rejected . . . the concepts of professional 
        ``malpractice'' or ``maladministration'' as the sole 
        basis for the impeachment of federal officials.
          The contrary position urged by Judge Claiborne is 
        incompatible with common sense and the orderly conduct 
        of government. Little can be added to the succinct 
        argument of Representative Clayton in 1913 on this 
        identical point, during the impeachment proceedings 
        involving Judge Charles Swayne:

          . . . . [The contention is that] however serious the 
        crime, the misdemeanor, or misbehavior of the judge may 
        be, if it can be said to be extrajudicial, he can not 
        be impeached. To illustrate this contention, the judge 
        may have committed murder or burglary and be confined 
        under a sentence in a penitentiary for any period of 
        time, however long, but because he has not committed 
        the murder or burglary in his capacity as judge he can 
        not be impeached. That contention, carried out 
        logically, might lead to the very defeat of the 
        performance of the function confided to the judicial 
        branch of the government.

          . . . . As also noted in one commentary:

          An act or a course of misbehavior which renders 
        scandalous the personal life of a public officer, 
        shakes the confidence of the people in his 
        administration of the public affairs, and thus impairs 
        his official usefulness, although it may not directly 
        affect his official integrity or otherwise incapacitate 
        him properly to perform his ascribed functions.
          Thus, Judge Claiborne's argument is both inaccurate 
        and illogical in its extraordinary premise that a 
        federal judge may intentionally commit a felonious act 
        outside his judicial functions and automatically find 
        protection from the impeachment sanction. \27\
---------------------------------------------------------------------------
    \27\ Opposition to Claiborne Motion, supra note 26, at 3-5 
(citations omitted)(emphasis in original).
---------------------------------------------------------------------------
    Senator Charles Mathias, Jr., chairman of the impeachment 
trial committee, referred Judge Claiborne's motion to the full 
Senate, it having jurisdiction over the articles of 
impeachment. \28\ He did state, however, that:
---------------------------------------------------------------------------
    \28\ Senate Claiborne Hearings, supra note 24, at 113.
---------------------------------------------------------------------------
          [I]t is my opinion . . . that the impeachment power 
        is not as narrow as Judge Claiborne suggests. There is 
        neither historical nor logical reason to believe that 
        the Framers of the Constitution sought to prohibit the 
        House from impeaching . . . an officer of the United 
        States who had committed treason or bribery or any 
        other high crime or misdemeanor which is a serious 
        offense against the government of the United States and 
        which indicates that the official is unfit to exercise 
        public responsibilities, but which is an offense which 
        is technically unrelated to the officer's particular 
        job responsibilities. \29\
---------------------------------------------------------------------------
    \29\ Id. at 113-14.
---------------------------------------------------------------------------
    The Senate never voted on Judge Claiborne's motion. 
However, the Senate was clearly not swayed by the arguments 
contained therein because the body later voted to convict Judge 
Claiborne. The Senate thus agreed with the House that private 
improprieties could be, and were in this instance, impeachable 
offenses.
    The rejection of Judge Claiborne's motion also provides 
evidence that the offenses that can lead to impeachment are 
similar for both judges and presidents. The motion argued that 
``[t]he standard for impeachment of a judge is different than 
that for other officers'' and that the Constitution limited 
``removal of the judiciary to acts involving misconduct related 
to discharge of office.'' \30\
---------------------------------------------------------------------------
    \30\ Claiborne Motion, supra note 24, at 4.
---------------------------------------------------------------------------
    Judge Claiborne's attorney stated to the Senate trial 
committee that:
          [B]ecause of the separation of powers contemplated by 
        the framers . . . . the standard for impeachment of a 
        Federal judge is distinct from the standard of 
        impeachment for the President, Vice President, or other 
        civil officers of the United States because as we know, 
        under article II, section 4, the President, Vice 
        President, and civil officers may be removed on 
        impeachment for conviction of treason, bribery, or 
        other high crimes and misdemeanors.
          It is our contention that the Federal judiciary, in 
        order to remain an independent branch, has a different 
        standard, a separate and distinct standard, as far as 
        the ability or the disability to be impeached, and that 
        is that the impeachment process would take place if in 
        fact the judge, who is the sole . . . lifetime 
        appointment of all the officers which are referred to 
        in the Constitution, is not on good behavior, a 
        separate and distinct standard than that which is 
        applicable to the elected officials and the officials 
        who are appointed for a specific term. \31\
---------------------------------------------------------------------------
    \31\ Senate Claiborne Hearings, supra note 24, at 76-77 (statement 
of Oscar Goodman).
---------------------------------------------------------------------------
    Judge Claiborne's attorney was arguing that federal judges 
are not ``civil officers'' and thus that the impeachment 
standard in article II, section 4, does not apply; instead, 
``misbehavior'' would be the grounds for impeaching a federal 
judge. \32\ He admitted his theory would fall if the Senate 
concluded that a federal judge was a civil officer. \33\
---------------------------------------------------------------------------
    \32\ Id. at 78-79. See also Claiborne Motion, supra note 24, at 3-
4.
    \33\ Senate Claiborne Hearings, supra note 24, at 79.
---------------------------------------------------------------------------
    Representative Kastenmeier responded that ``reliance on the 
term `good behavior' as stating a sanction for judges is 
totally misplaced and virtually all commentators agree that 
that is directed to affirming the life tenure of judges during 
good behavior. It is not to set them down, differently, as 
judicial officers from civil officers.'' \34\ He further stated 
that ``[n]or . . . is there any support for the notion that . . 
. Federal judges are not civil officers of the United States, 
subject to the impeachment clause of article II of the 
Constitution.'' \35\
---------------------------------------------------------------------------
    \34\ Id. at 81-82.
    \35\ Id. at 81.
---------------------------------------------------------------------------
    Kastenmeier's argument was repeated by the House of 
Representatives. \36\ The House stated that:
---------------------------------------------------------------------------
    \36\ Opposition to Claiborne Motion, supra note 26.
---------------------------------------------------------------------------
          If lack of good behavior were the sole standard for 
        impeaching federal judges, then a different standard 
        would apply to civil officers other than judges. 
        Nowhere in the proceedings of the Constitutional 
        Convention was such a distinction made. On the 
        contrary, the proceedings of the Convention show an 
        intention to limit the grounds of impeachment for all 
        civil officers, including federal judges, to those 
        contained in Article II.
          On August 20, 1787, a committee was directed to 
        report on ``a mode of trying the supreme Judges in 
        cases of impeachment.'' The committee reported back on 
        August 22 that ``the Judges should be triable by the 
        Senate.'' . . . Several days later, a judicial removal 
        provision was added to the impeachment clause. On 
        September 8, 1787, the judicial removal clause was 
        deleted and the impeachment clause was expanded to 
        include the Vice President and all civil officers. . . 
        . In so doing, the Constitutional Convention rejected a 
        dual test of ``misbehavior'' for judges and ``high 
        crimes and misdemeanors'' for all other federal 
        officials.
          In Federalist No. 79, Alexander Hamilton confirmed 
        this reading of the Convention's actions with respect 
        to the impeachment standard:

          The precautions for [judges'] responsibility, are 
        comprised in the article respecting impeachments. . . . 
        This is the only provision on the point, which is 
        consistent with the necessary independence of the 
        judicial character, and is the only one which we find 
        in our Constitution with respect to our own judges. 
        \37\
---------------------------------------------------------------------------
    \37\ Id. at 6-7 (citations omitted).
---------------------------------------------------------------------------
    Again, while the Senate never voted on Claiborne's motion, 
it did vote to convict the judge. The Senate was not convinced 
by Claiborne's argument that the standard of impeachable 
offenses was different for judges than for presidents.
    In addition to the two articles charging him with filing 
false tax returns, Judge Claiborne was found guilty on an 
article of impeachment that found that by willfully and 
knowingly falsifying his income on his tax returns, he had 
``betrayed the trust of the people of the United States and 
reduced confidence in the integrity and impartiality of the 
judiciary, thereby bringing disrepute on the Federal courts and 
the administration of justice by the courts.''
B. THE IMPEACHMENT OF JUDGE NIXON \38\
---------------------------------------------------------------------------
    \38\ See Appendix 1 for sources and a description of the articles 
of impeachment and the proceedings against Judge Nixon.
---------------------------------------------------------------------------
    U.S. District Court Judge Walter L. Nixon, Jr. was 
impeached in 1989. At the time of his impeachment, he was 
serving a sentence in federal prison for making false 
statements to a federal grand jury. He made the false 
statements in an attempt to conceal his involvement with an 
aborted state prosecution for drug smuggling against the son of 
a man who had benefitted Judge Nixon financially with a 
``sweetheart'' oil and gas investment. Judge Nixon lied about 
whether he had discussed the case with the state prosecutor and 
had influenced the state prosecutor to essentially drop the 
case. Judge Nixon was acquitted of the charge of accepting an 
illegal gratuity. The perjury convictions alone formed the 
basis of the two articles of impeachment on which he was found 
guilty.
    As with Judge Claiborne, Congress was harsh in its 
judgement of Judge Nixon. Representative Don Edwards, chairman 
of the Judiciary Committee's subcommittee that held hearings on 
Judge Nixon and a House manager in the Senate trial, stated 
before the Senate trial committee that the judge had 
``disobeyed the law, soiled his own reputation, and undermined 
the integrity of the judiciary.'' \39\ As to why the crime was 
so heinous, Edwards further stated that ``[t]he crime for which 
he was convicted, lying to a grand jury in testimony under 
oath, is particularly serious because a judge must bear the 
awesome responsibility of swearing witnesses, judging 
credibility, and finding the truth in cases that come before 
him.'' \40\ There was only one answer--impeachment: ``The 
pattern of lies, concealment and deceit on the part of Judge 
Nixon led the committee, by clear and convincing evidence, to 
the unavoidable conclusion that he must be impeached.'' \41\ On 
the Senate floor, Edwards asked ``[i]s a man who repeatedly 
lied fit to hold the high office of Federal judge? I hope you 
agree that the answer is obvious.'' \42\
---------------------------------------------------------------------------
    \39\ Hearings Before the Senate Impeachment Trial Committee on the 
Articles of Impeachment Against Judge Walter L. Nixon, Jr., a Judge of 
the United States District Court for the Southern District of 
Mississippi, for High Crimes and Misdemeanors, 101st Cong., 1st Sess. 
304 (1989)(hereinafter cited as ``Senate Nixon Hearings'').
    \40\ 135 Cong. Rec. 8816 (1989).
    \41\ 135 Cong. Rec. 8817 (1989).
    \42\ Proceedings of the United States Senate in the Impeachment 
Trial of Walter L. Nixon, Jr., a Judge of the United States District 
Court for the Southern District of Mississippi, S. Doc. No. 101-22, 
101st Cong., 1st Sess. 367 (1989)(hereinafter cited as ``Proceedings of 
the United States Senate''). Senator Herbert Kohl asked whether 
concealing information from a grand jury is the same as perjury. 
Representative Edwards responded that ``the managers firmly believe 
that if you make an affirmative statement to a grand jury and purposely 
leave material facts out, that would constitute perjury.'' Id. at 418.
---------------------------------------------------------------------------
    James Sensenbrenner, ranking member of the Judiciary 
Committee's subcommittee that held hearings on Judge Nixon, and 
a House manager, also emphasized the damage done by Nixon's 
perjury:
          Our hearings have produced clear and convincing 
        evidence that Judge Nixon lied to the law enforcement 
        authorities during the investigation of the criminal 
        case as well as to the Federal grand jury. . . . Judge 
        Nixon thwarted the entire fact finding process by 
        defining the ``truth, the whole truth, and nothing but 
        the truth'' as only that which was convenient for Judge 
        Nixon to disclose at that particular time. \43\
---------------------------------------------------------------------------
    \43\ 135 Cong. Rec. 8820 (1989).
---------------------------------------------------------------------------
    Representative Charles Schumer, a member of the Judiciary 
Committee, reiterated that perjury was worthy of impeachment:
          [This] is a case where some of the charges were 
        dropped and the only conviction was for perjury.
          Perjury, of course, is a very difficult, difficult 
        thing to decide; but as we looked and examined all of 
        the records and in fact found many things that were not 
        in the record it became very clear to us that this 
        impeachment was meritorious.
          My colleagues, in conclusion, impeachment is a grave 
        issue. In this case it is deserved. \44\
---------------------------------------------------------------------------
    \44\ 135 Cong. Rec. 8822 (1989).
---------------------------------------------------------------------------
    Judge Nixon argued that the third article of impeachment 
should be dismissed. This article stated that ``Judge Nixon has 
raised substantial doubt as to his judicial integrity, 
undermined confidence in the integrity and impartiality of the 
judiciary, betrayed the trust of the people of the United 
States . . . and brought disrepute on the Federal courts and 
the administration of justice by the federal courts . . . .'' 
It charged that he did this by making a total of 14 false 
statements to officials from the Department of Justice and the 
Federal Bureau of Investigation and to a federal grand jury, 
all regarding the events surrounding the drug smuggling 
prosecution.
    One of Judge Nixon's arguments against article III was that 
``[t]hese allegations do not make out an impeachable offense . 
. . .'' \45\ Judge Nixon's contention was that ``an impeachable 
offense may be only (i) a judge's abuse of office or (ii) grave 
criminal acts.'' \46\ Nixon stated that this was the intent of 
the framers of the Constitution, who only intended impeachment 
to ``protect the community from abuse of the public trust and 
misconduct in office'' \47\ and who believed that `` `[t]he 
complete independence of the courts of justice is peculiarly 
essential in a limited Constitution.' '' \48\
---------------------------------------------------------------------------
    \45\ Judge Nixon's Motion to Dismiss Impeachment Article III 1 
(June 23, 1989), reprinted in Senate Nixon Hearings, supra note 39, at 
121. The other arguments were that article III contained allegations 
that were ``redundant and multiplicitous'' of allegations in other 
articles of impeachment and that the article was so ``complex and 
confusing'' that it was both ``unfair and completely unworkable.'' 
Judge Nixon's Motion to Dismiss Impeachment Article III at 1-2.
    \46\ Memorandum in Support of Judge Nixon's Motion to Dismiss 
Impeachment Article III 3 (hereinafter cited as ``Memorandum in Support 
of Nixon Motion''), reprinted in Senate Nixon Hearings, supra note 39, 
at 123, 127. Judge Nixon thus disagrees with Judge Claiborne, stating 
that ``[I] do not argue that impeachment is . . . limited [to acts 
performed in an official capacity] and agree that private criminal 
offenses of a grave nature are also impeachable offenses.'' Memorandum 
in Support of Nixon Motion at 7 n.3.
    \47\ Id. at 7 (footnote omitted).
    \48\ Id. at 11-12, quoting The Federalist No. 78, at 466 (Alexander 
Hamilton).
---------------------------------------------------------------------------
    Nixon argued that article III of the impeachment resolution 
did not allege either crimes or abuses of office, but instead 
focused on his ``general reputation and character.'' \49\ The 
framers' goal would be thwarted by article III, which ``alleges 
vague and subjective offenses,'' and ``encompasses almost any 
act that the political majority may fine offensive or 
distasteful, thereby exposing a judge to impeachment for 
controversial acts or conduct.'' \50\ Under the standard of 
article III, a judge could be impeached for ``issuing unpopular 
judicial decisions,'' ``smoking marijuana'' as a youth, 
``driving while intoxicated,'' associating with ``disreputable 
members of the community,'' ``openly engaging in an 
extramarital affair,'' or ``attending a meeting of the 
Communist Party.'' \51\ Finally, ``[w]hat evidence or facts 
will a Senator examine to determine whether the courts have 
been brought into disrepute . . . [o]r whether public 
confidence has been undermined?'' \52\
---------------------------------------------------------------------------
    \49\ Memorandum in Support of Nixon Motion, supra note 46, at 15.
    \50\ Id. at 3-4.
    \51\ Id. at 16.
    \52\ Id. at 17.
---------------------------------------------------------------------------
    Judge Nixon complained that:
          In recent impeachments . . . the House has become 
        enamored of the tactical device of charging the 
        respondent with being a generally bad person who has 
        brought discredit on the judiciary. . . . Judge 
        Claiborne . . . [was] convicted on such [a] ``catch-
        all'' article[]. . . . Both Judges Hastings and Nixon 
        now face similar catch-all articles. The Senate should 
        no longer allow such a blatantly unfair prosecutorial 
        device. . . . \53\
---------------------------------------------------------------------------
    \53\ Id. at 14.
---------------------------------------------------------------------------
    The House of Representatives responded by arguing that 
article III was ``modeled on articles of impeachment from prior 
cases that focus on the impact of a judge's misconduct on the 
integrity of the judiciary.'' \54\ Article III was ``modeled 
upon `omnibus' or `catch-all' articles of impeachment presented 
by the House and voted on by the Senate in every impeachment 
trial this century that resulted in conviction. . . . Past 
`omnibus' impeachment articles contain phraseology virtually 
identical to that alleged in Article III. . . .'' \55\
---------------------------------------------------------------------------
    \54\ United States House of Representatives, The House of 
Representatives' Response to Judge Nixon's Motion to Dismiss 
Impeachment Article III 5 (hereinafter cited as ``Response to Nixon 
Motion''), reprinted in Senate Nixon Hearings, supra note 39, at 261, 
265.
    \55\ Response to Nixon Motion, supra note 54, at 8 (emphasis in 
original).
---------------------------------------------------------------------------
    The House then pointed out that Judge Nixon had conceded 
that criminal conduct constituted an impeachable offense and 
therefore must agree that ``the alleged concealment of 
information by committing perjury before a federal grand jury, 
a federal crime . . . state[s] an impeachable offense.'' \56\
---------------------------------------------------------------------------
    \56\ Id. at 5-6.
---------------------------------------------------------------------------
    The House argued that it was not charging Judge Nixon with 
just being a ``bad person,'' but with committing specific acts 
which raised doubts about his integrity and that of the 
judicial system. \57\ Specifically:
---------------------------------------------------------------------------
    \57\ Id. at 6-7.
---------------------------------------------------------------------------
          Giving false testimony under oath to a grand jury is 
        a crime. . . . Because truth is such an indispensable 
        element of our judicial system, with federal judges 
        entrusted with the important task of assessing 
        credibility and finding the truth in cases that come 
        before them, the notion of permitting a proven liar to 
        sit on the bench strikes at the heart of the integrity 
        of the judicial process.
          It is difficult to imagine an act more subversive to 
        the legal process [than] lying from the witness stand. 
        . . . If a judge's truthfulness cannot be guaranteed, 
        if he sets less than the highest standard for candor, 
        how can ordinary citizens who appear in court be 
        expected to abide by their testimonial oath? \58\
---------------------------------------------------------------------------
    \58\ United States House of Representatives, The House of 
Representatives' Brief in Support of the Articles of Impeachment 58-59, 
reprinted in Proceedings of the United States Senate, supra note 42, at 
28, 88-89.
---------------------------------------------------------------------------
The House asserted that ``[t]he Framers would applaud both 
Judge Nixon's criminal prosecution and his removal from 
office.'' \59\
---------------------------------------------------------------------------
    \59\ Response to Nixon Motion, supra note 54, at 8.
---------------------------------------------------------------------------
    The Senate voted to deny Judge Nixon's motion to dismiss 
the third article of impeachment by a vote of 34 to 63. \60\ It 
had done the same when Judge Hastings made a similar motion as 
to an omnibus article. \61\
---------------------------------------------------------------------------
    \60\ Proceedings of the United States Senate, supra note 42, at 
431.
    \61\ 135 Cong. Rec. 4533 (1989). See footnotes 124-25 and 
accompanying text.
---------------------------------------------------------------------------
    The Senate did vote in the end to find Judge Nixon not 
guilty as charged in article III. \62\ A possible explanation 
for this vote is provided by Senator Herbert Kohl, who found 
Judge Nixon guilty as charged in articles I and II but found 
him not guilty on article III:
---------------------------------------------------------------------------
    \62\ Proceedings of the United States Senate, supra note 42, at 
436.
---------------------------------------------------------------------------
          Article III is phrased in the disjunctive. It says 
        that Judge Nixon concealed his conversations through 
        ``one or more'' of 14 false statements. This wording 
        presents a variety of problems. First of all, it means 
        that Judge Nixon can be convicted even if two thirds of 
        the Senate does not agree on which of his particular 
        statements were false. . . .
          The House is telling us that it's OK to convict Judge 
        Nixon on article III even if we have different visions 
        of what he did wrong. But that's not fair to Judge 
        Nixon, to the Senate, or to the American people. . . .
          Article III reminds me of the kind [of] menu that 
        some Chinese restaurants use. We are asked to choose a 
        combination of selections from column ``A'' and from 
        column ``B.'' This complicates our deliberations and 
        puts a tremendous burden on the accused.
          I realize that we have used omnibus articles before. 
        But they did not contain the word ``OR,'' and they did 
        not allege 14 crimes. In the Claiborne case, for 
        example, the omnibus article accused him of just two 
        crimes--falsifying tax returns in 1979 and 1980.
          But my basic objection is more fundamental: the 
        prosecution should not be allowed to use a shotgun or 
        blunderbuss. We should send a message to the House: 
        ``Please do not bunch up your allegations. From here on 
        out, charge each act of wrongdoing in a separate count. 
        Follow the example of prosecutors in court.'' . . . 
        [E]ven if article III is technically permissible under 
        the Constitution, Congress can do better. \63\
---------------------------------------------------------------------------
    \63\ Id. at 449-50.
---------------------------------------------------------------------------
    In any event, the Senate voted to convict Judge Nixon on 
two articles of impeachment, both founded upon his making false 
statements to a grand jury. The body seems to have agreed with 
the House of Representatives as to the seriousness of such 
perjury.
C. THE IMPEACHMENT OF JUDGE HASTINGS \64\
---------------------------------------------------------------------------
    \64\ See Appendix 1 for sources and a description of the articles 
of impeachment and the proceedings against Judge Hastings.
---------------------------------------------------------------------------
    U.S. District Court Judge Alcee L. Hastings was impeached 
in 1989. He had been acquitted of charges that he and a friend 
had conspired to solicit a $150,000 bribe from defendants in a 
racketeering and embezzlement case heard by Judge Hastings in 
exchange for lenient sentencing. However, in a separate trial, 
a jury convicted his alleged co-conspirator on these charges, 
and it was alleged that Judge Hastings won acquittal by 
committing perjury on the witness stand. Judge Hastings' 
involvement in the bribery scheme and his perjury in his 
criminal trial formed the basis of the eight articles of 
impeachment on which he was convicted.
    As with the other judges, the reaction of Congress was 
harsh. John Conyers, who was chairman of the Subcommittee on 
Criminal Justice (which held the investigatory hearings into 
Judge Hastings' conduct) and a House manager, stated that the 
judge was ``the architect of his own undoing'' and that ``[w]e 
did not wage th[e] civil rights struggle merely to replace one 
form of judicial corruption for another.'' \65\ George Gekas, 
ranking member of the Subcommittee and a House manager, said 
that ``this look that we have just given into the conduct of 
Alcee Hastings makes one sick in the stomach.'' \66\
---------------------------------------------------------------------------
    \65\ 134 Cong. Rec. 20,214 (1988).
    \66\ 134 Cong. Rec. 20,215 (1988).
---------------------------------------------------------------------------
    Hamilton Fish, ranking member of the Judiciary Committee 
and a House manager, stated that ``Judge Hastings . . . sought 
to sell his judicial office for private gain--and later 
perverted the legal process by testifying falsely. Such conduct 
cannot be tolerated in a public official responsible for 
dispensing equal justice under the law.'' \67\
---------------------------------------------------------------------------
    \67\ 134 Cong. Rec. 20,217 (1988).
---------------------------------------------------------------------------
    The House of Representatives' position before the Senate 
was that ``[e]ach and every one of the fourteen instances of 
false testimony charged in the Articles of Impeachment 
justifies Judge Hastings' removal from the Federal bench.'' 
\68\ Further, ``[f]ew actions are more subversive of the legal 
process than lying on the stand. A judge who has sought to 
mislead persons engaged in any aspect of the legal process is 
unfit to remain on the bench.'' \69\
---------------------------------------------------------------------------
    \68\ United States House of Representatives, Revised Pretrial 
Statement of the House of Representatives 3 (July 7, 1989), reprinted 
in Hearings Before the Senate Impeachment Trial Committee on the 
Articles of Impeachment Against Judge Alcee L. Hastings, a Judge of the 
United States District Court for the Southern District of Florida, for 
High Crimes and Misdemeanors, 101st Cong., 1st Sess. 941, 943 (1989). 
This might be considered hyperbole in that it only takes conviction on 
one article of impeachment to remove a federal official from office.
    \69\ Revised Pretrial Statement of the House of Representatives, 
supra note 68, at 17.
---------------------------------------------------------------------------
    Judge Hastings was found guilty by the Senate on seven of 
the 12 articles involving false testimony and on the article 
stating that he was a participant in the bribery conspiracy. It 
is clear from his impeachment that perjury is an impeachable 
offense.
    The Senate found Judge Hastings not guilty on the last 
article of impeachment, which charged that through his actions, 
he undermined ``confidence in the integrity and impartiality of 
the judiciary and betray[ed] the trust of the people of the 
United States, thereby bringing disrepute on the Federal courts 
and the administration of justice by the Federal courts.'' The 
Senate had earlier, though, refused to dismiss this article.

          IMPEACHMENT PROCEEDINGS AGAINST PRESIDENT NIXON \70\
---------------------------------------------------------------------------

    \70\ See Appendix 1 for sources and a description of the articles 
of impeachment articles and the proceedings against President Nixon.
---------------------------------------------------------------------------
    President Richard Nixon resigned in 1974 after the 
Judiciary Committee had approved three articles of impeachment 
against him. The articles generally revolved around the 1972 
burglary at the Washington, D.C., headquarters of the 
Democratic National Committee and the president's role in the 
ensuing cover-up of the break-in.
    The Committee characterized the first article as charging 
that:
          President Nixon, using the power of his high office, 
        engaged, personally and through his subordinates and 
        agents, in a course of conduct or plan designed to 
        delay, impede, and obstruct the investigation of the 
        unlawful entry into the headquarters of the Democratic 
        National Committee in Washington, D.C., for the purpose 
        of securing political intelligence; to cover up, 
        conceal and protect those responsible; and to conceal 
        the existence and scope of other unlawful covert 
        activities. \71\
---------------------------------------------------------------------------
    \71\ Impeachment of Richard M. Nixon, President of the United 
States, H.R. Rep. No. 93-1305, 93rd Cong., 2d Sess. 10 
(1974)(hereinafter cited as ``Impeachment of Richard M. Nixon'').
---------------------------------------------------------------------------
    The Committee believed that this course of conduct by 
President Nixon required ``perjury, destruction of evidence, 
obstruction of justice, all crimes. But, most important, it 
required deliberate, contrived, and continuing deception of the 
American people.'' \72\ The Committee went on to say that:
---------------------------------------------------------------------------
    \72\ Id. at 136.
---------------------------------------------------------------------------
          [His] actions resulted in manifest injury to the 
        confidence of the nation and great prejudice to the 
        cause of law and justice, and was subversive of 
        constitutional government. His actions were contrary to 
        his trust as President and unmindful of the solemn 
        duties of his high office. It was this serious 
        violation of Richard M. Nixon's constitutional 
        obligations as President, and not the fact that 
        violations of Federal criminal statutes occurred, that 
        lies at the heart of Article I. \73\
---------------------------------------------------------------------------
    \73\ Id.
---------------------------------------------------------------------------
    The Committee characterized the second article as charging 
that:
          President Nixon, using the power of the office of 
        President of the United States, repeatedly engaged in 
        conduct which violated the constitutional rights of 
        citizens; which impaired the due and proper 
        administration of justice and the conduct of lawful 
        inquiries, or which contravened the laws governing 
        agencies of the executive branch and the purposes of 
        these agencies. \74\
---------------------------------------------------------------------------
    \74\ Id. at 10.
---------------------------------------------------------------------------
    As to this article, the Committee believed that:
          [I]t is the duty of the President not merely to live 
        by the law but to see that law faithfully applied. 
        Richard M. Nixon has repeatedly and willfully failed to 
        perform that duty. He has failed to perform it by 
        authorizing and directing actions that violated or 
        disregarded the rights of citizens and that corrupted 
        and attempted to corrupt the lawful functioning of 
        executive agencies. He has failed to perform it by 
        condoning and ratifying, rather than acting to stop, 
        actions by his subordinates that interfered with lawful 
        investigations and impeded the enforcement of the laws.
          The conduct of Richard M. Nixon has constituted a 
        repeated and continuing abuse of the powers of the 
        Presidency. . . . This abuse of the powers of the 
        President was carried out by Richard M. Nixon . . . for 
        his own political advantage, not for any legitimate 
        governmental purpose and without due consideration for 
        the national good. \75\
---------------------------------------------------------------------------
    \75\ Id. at 180.
---------------------------------------------------------------------------
    The Committee characterized the third article as charging 
that President Nixon failed ``without lawful cause or excuse 
and in willful disobedience of the subpoenas of the House, to 
produce papers and things that the Committee had subpoenaed in 
the course of its impeachment inquiry . . . .'' \76\
---------------------------------------------------------------------------
    \76\ Id. at 10-11.
---------------------------------------------------------------------------
    The Committee believed that:
          [I]n refusing to comply with limited, narrowly drawn 
        subpoenas . . . the President interfered with the 
        exercise of the House's function as the ``Grand Inquest 
        of the Nation.'' Unless the defiance of the Committee's 
        subpoenas under these circumstances is considered 
        grounds for impeachment, it is difficult to conceive of 
        any President acknowledging that he is obliged to 
        supply the relevant evidence necessary for Congress to 
        exercise its constitutional responsibility in an 
        impeachment proceeding. \77\
---------------------------------------------------------------------------
    \77\ Id. at 213.
---------------------------------------------------------------------------
    The impeachment proceedings against President Nixon have 
become the most famous, or infamous, in the history of the 
republic. Unfortunately, it is impossible to know how the House 
of Representatives and the Senate would have viewed the 
articles of impeachment.
    However, it can be said that the first article emphasized 
the obstruction of justice by President Nixon and the second 
article emphasized his abuse of power. The first article 
charged that President Nixon tried to delay, impede, and 
obstruct the investigation of the break-in at the Democratic 
National Committee by engaging in activities such as making 
false and misleading statements to the public and to 
governmental investigators, counseling witnesses to give false 
or misleading statements to such investigators and in judicial 
and congressional proceedings, withholding evidence and 
information from such investigators, approving surreptitious 
payments to witnesses to obtain their silence or influence 
their testimony, and interfering in the conduct of federal 
investigations.
    The second article charged that President Nixon violated 
the constitutional rights of citizens, impaired the 
administration of justice and contravened the laws governing 
executive agencies by engaging in activities such as trying to 
obtain data on persons from the Internal Revenue Service and 
causing the agency to engage in improper audits, using 
executive branch personnel to conduct improper investigations, 
keeping a secret investigative unit in his office, failing to 
act when he knew or had reason to know that subordinates were 
trying to impede governmental investigations, and interfering 
with agencies of the executive branch.

                               CONCLUSION

    Our nation's recent experience with impeachments under the 
United States Constitution provides a number of clear guiding 
principles for those who must conduct future impeachment 
inquiries, draft future articles of impeachment, and vote on 
those articles:
         First, in most instances of impeachment since 
        1974, making false and misleading statements under oath 
        has been the most common compelling basis for 
        impeachment--whether it is before a jury, a grand jury, 
        or on a tax return.
         Second, the constitutional standard for 
        impeachable offenses is the same for federal judges as 
        it is for presidents and all other civil officers.
         Third, impeachable offenses can involve both 
        personal and professional misconduct.
         Fourth, impeachable offenses do not have to be 
        federal or state crimes. \78\
---------------------------------------------------------------------------
    \78\ This was also the conclusion of the 1974 Staff Report. See 
1974 Staff Report, supra note 2, at 22-25.
---------------------------------------------------------------------------
    The research conducted by the staff in 1974, and this 
update, are meant to provide guidance and background to members 
as they prepare to undertake this constitutional responsibility 
of determining whether or not any acts allegedly committed by 
the president rise to the level of an impeachable offense. 
Impeachment is a unique and distinct procedure established by 
the Constitution. Each member must decide for himself or 
herself, after the conclusion of the fact-finding process and 
in the light of historical precedents, based on his or her own 
judgment and conscience, whether the proven acts constitute a 
High Crime or Misdemeanor.
                          A P P E N D I X E S

                               APPENDIX 1

                RECENT AMERICAN IMPEACHMENT PROCEEDINGS

1. PRESIDENT RICHARD NIXON
            A. PROCEEDINGS IN THE HOUSE
    Various resolutions to impeach President Nixon were 
introduced and referred to the Judiciary Committee. \79\ The 
House adopted H.Res. 702 on November 15, 1973, which provided 
additional funds for the Committee for purposes of considering 
the resolutions. \80\ On February 6, 1974, the House adopted 
H.Res. 803, a resolution that authorized the Committee to 
investigate whether grounds existed to impeach President Nixon. 
\81\ From May 9, 1974, until July 17, 1974, the impeachment 
inquiry staff made presentations to the Committee of the 
results of their investigation and the Committee heard 
witnesses. \82\
---------------------------------------------------------------------------
    \79\ Impeachment of Richard M. Nixon, supra note 71, at 6.
    \80\ Id.
    \81\ Id.
    \82\ Id. at 9.
---------------------------------------------------------------------------
    Beginning on July 24, 1974, the Committee considered a 
resolution containing two articles of impeachment, and on July 
27, 1974, the Committee agreed to an amended version of the 
first article by a vote of 27 to 11.\83\ On July 29, 1974, the 
Committee approved an amended version of the second article by 
a vote of 28 to 10.\84\ On July 30, 1974, an additional article 
(regarding the president's failure to produce items demanded by 
congressional subpoenas) was offered and was adopted by a vote 
of 21 to 17.\85\
---------------------------------------------------------------------------
    \83\ Id. at 10.
    \84\ Id.
    \85\ Id.
---------------------------------------------------------------------------
    Also on July 30, the Committee considered and rejected (by 
votes of 12-26) two additional articles. The first charged that 
President Nixon authorized and concealed from Congress the 
bombing of Cambodia in derogation of the powers of Congress. 
The second charged the president with filing false income tax 
returns for the years 1969-72 and having received unlawful 
emoluments in the form of government expenditures at properties 
at San Clemente, California, and Key Biscayne, Florida.\86\
---------------------------------------------------------------------------
    \86\ Id. at 11.
---------------------------------------------------------------------------
    President Nixon resigned on August 9, 1974.\87\ The 
Judiciary Committee report, which recommended that the House 
impeach President Nixon and which adopted articles of 
impeachment, was accepted by the House through the passage of 
H.Res. 1333 on August 20, 1974.\88\ No further proceedings 
occurred.
---------------------------------------------------------------------------
    \87\ 3 Deschler's Precedents of the United States House of 
Representatives, H. Doc. No. 94-661, 94th Cong., 2d Sess., Ch. 14, 
Sec. 15.13, 638 (1974).
    \88\ Id. at 642.
---------------------------------------------------------------------------
            B. ARTICLES OF IMPEACHMENT \89\
---------------------------------------------------------------------------
    \89\ Impeachment of Richard M. Nixon, supra note 71, at 1-4.
---------------------------------------------------------------------------
    Article I charged that President Nixon had violated his 
constitutional duty to faithfully execute his office, preserve, 
protect, and defend the Constitution, and take care that the 
laws be faithfully executed by interfering with the 
investigation of events relating to the June 17, 1972, unlawful 
entry at the Washington, D.C., headquarters of the Democratic 
National Committee for the purpose of securing political 
intelligence. Using the powers of his office, the president 
``engaged personally and through his subordinates and agents, 
in a course of conduct or plan designed to delay, impede, and 
obstruct the investigation of such unlawful entry; to cover up, 
conceal and protect those responsible; and to conceal the 
existence and scope of other unlawful covert activities.''
    Implementation of the course of conduct included (1) making 
or causing to be made false or misleading statements to 
investigative officers and employees of the United States, (2) 
withholding relevant and material evidence or information from 
such persons, (3) approving, condoning, acquiescing in, and 
counseling witnesses with respect to the giving of false or 
misleading statements to such persons as well as in judicial 
and congressional proceedings, (4) interfering or endeavoring 
to interfere with the conduct of investigations by the 
Department of Justice, the Federal Bureau of Investigation, the 
Office of Watergate Special Prosecution Force and congressional 
committees, (5) approving, condoning, and acquiescing in 
surreptitious payments for the purpose of obtaining the silence 
of or influencing the testimony of witnesses, potential 
witnesses or participants in the unlawful entry or other 
illegal activities, (6) endeavoring to misuse the Central 
Intelligence Agency, (7) disseminating information received 
from the Department of Justice to subjects of investigations, 
(8) making false or misleading public statements for the 
purpose of deceiving the people of the United States into 
believing that a thorough investigation of ``Watergate'' had 
taken place, and (9) endeavoring to cause prospective 
defendants and persons convicted to expect favored treatment or 
rewards in return for silence or false testimony. President 
Nixon ``acted in a manner contrary to his trust as President 
and subversive of constitutional government, to the great 
prejudice of the cause of law and justice and to the manifest 
injury of the people of the United States.''
    Article II charged that the President had violated his 
constitutional duty to faithfully execute his office, preserve, 
protect, and defend the Constitution, and take care that the 
laws be faithfully executed by ``repeatedly engag[ing] in 
conduct violating the constitutional rights of citizens, 
impairing the due and proper administration of justice and the 
conduct of lawful inquiries, or contravening the laws governing 
agencies of the executive branch and the purposes of these 
agencies.''
    The president did such by (1) personally and through 
subordinates trying to obtain for purposes not authorized by 
law confidential information maintained by the Internal Revenue 
Service and causing the IRS to engage in improper tax audits 
and investigations, (2) misusing the FBI, the Secret Service 
and other executive personnel by directing them to conduct 
improper electronic surveillance and other investigations and 
permitting the improper use of information so obtained, (3) 
authorizing the maintenance of a secret investigative unit 
within the office of the president, partially financed with 
campaign contributions, which unlawfully utilized resources of 
the CIA and engaged in covert and unlawful activities and 
attempted to prejudice the constitutional right of an accused 
individual to a fair trial, (4) failing to act when he knew or 
had reason to know that subordinates were trying to impede and 
frustrate inquiries by governmental entities into the break-in 
at the Democratic National Committee and the cover-up and other 
matters, and (5) knowingly misusing the executive power by 
interfering with agencies of the executive branch, including 
the FBI, the Department of Justice, and the CIA, in violation 
of his duty to take care that the laws be faithfully executed. 
He acted ``in a manner contrary to his trust as President and 
subversive of constitutional government, to the great prejudice 
of the cause of law and justice and to the manifest injury of 
the people of the United States.''
    Article III charged that the president had violated his 
constitutional duty to faithfully execute his office, preserve, 
protect, and defend the Constitution, and take care that the 
laws be faithfully executed by, without lawful cause or excuse, 
failing to produce items relating to ``Watergate'' as directed 
by subpoenas issued by the Judiciary Committee and willfully 
disobeying such subpoenas. President Nixon had thus interposed 
the powers of the presidency against the lawful subpoenas of 
the House of Representatives, ``assuming to himself functions 
and judgments necessary to the exercise of the sole power of 
impeachment vested by the Constitution in the House. . . .'' He 
acted ``in a manner contrary to his trust as President and 
subversive of constitutional government, to the great prejudice 
of the cause of law and justice, and to the manifest injury of 
the people of the United States.''
            C. PROCEEDINGS IN THE SENATE
    None.
2. DISTRICT JUDGE HARRY CLAIBORNE
            A. PROCEEDINGS IN THE HOUSE
    Harry E. Claiborne was a judge of the United States 
District Court for the District of Nevada. A resolution to 
impeach him, H.Res. 461, was introduced June 3, 1986, and 
referred to the Judiciary Committee.\90\ An investigatory 
hearing into the conduct of Judge Claiborne was held on June 
19, 1986, by the Subcommittee on Courts, Civil Liberties and 
the Administration of Justice.\91\ On June 24, 1986, the 
Subcommittee amended H.Res. 461 and passed it by a 15 to 0 
vote; on June 26, 1986, the full Committee amended the 
resolution and ordered it favorably reported to the House by a 
vote of 35 to 0.\92\ On June 30, 1986, the Judicial Conference 
of the United States notified the House that it had made its 
own determination that Judge Claiborne's conduct in violating 
section 7206(1) of the Internal Revenue Code could constitute 
grounds for impeachment under Article I of the 
Constitution.\93\ On July 22, 1986, the House agreed to H.Res. 
461 by a vote of 406 to 0.\94\
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    \90\ Impeachment of Judge Harry E. Claiborne, H.R. Rep. 99-688, 
99th Cong., 2d Sess. 1 (1986).
    \91\ Id. at 4.
    \92\ Id. at 6-7.
    \93\ 132 Cong. Rec. H4712 (daily ed. July 22, 1986). Forwarding a 
determination that a judge's impeachment might be warranted is the 
severest disciplinary action against a judge that the Judicial 
Conference can take under the Judicial Councils Reform and Judicial 
Conduct and Disability Act of 1980. See 28 U.S.C. Sec. 372(c)(8)(a) 
(1994).
    \94\ 132 Cong. Rec. H4721 (daily ed. July 22, 1986).
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            B. ARTICLES OF IMPEACHMENT \95\
---------------------------------------------------------------------------
    \95\ 132 Cong. Rec. S15,760-61 (daily ed. Oct. 9, 1986).
---------------------------------------------------------------------------
    Article I charged that, while serving as a federal judge, 
Judge Claiborne had filed an income tax return for 1979, 
knowing that it substantially understated his income. The 
return, filed with the Internal Revenue Service, was verified 
by a written declaration that it was made under penalty of 
perjury. A jury found beyond a reasonable doubt that Judge 
Claiborne had failed to report substantial income in violation 
of federal law.
    Article II charged that, while serving as a federal judge, 
Judge Claiborne had filed an income tax return for 1980, 
knowing that it substantially understated his income. The 
return, filed with the Internal Revenue Service, was verified 
by a written declaration that it was made under penalty of 
perjury. A jury found beyond a reasonable doubt that Judge 
Claiborne had failed to report substantial income in violation 
of federal law.
    Article III charged that, while serving as a federal judge, 
Judge Claiborne had been found guilty of making and subscribing 
false income tax returns for 1979 and 1980 in violation of 
federal law and was sentenced to two years imprisonment (with 
the terms of imprisonment to be served concurrently) and a fine 
of $5000 for each violation.
    Article IV charged that Judge Claiborne was ``required to 
discharge and perform all the duties incumbent on him and to 
uphold and obey the Constitution and laws of the United 
States'' and was ``required to uphold the integrity of the 
judiciary and to perform the duties of his office 
impartially.'' The article concluded that by willfully and 
knowingly falsifying his income on his tax returns, he had 
``betrayed the trust of the people of the United States and 
reduced confidence in the integrity and impartiality of the 
judiciary, thereby bringing disrepute on the Federal courts and 
the administration of justice by the courts.''
            C. PROCEEDINGS IN THE SENATE
    Pursuant to S.Res. 481 and rule XI of the Rules of 
Procedure and Practice in the Senate When Sitting on 
Impeachment Trials, a committee of twelve Senators received 
evidence and heard testimony relating to the articles of 
impeachment and then provided the transcripts of the 
proceedings to the Senate.\96\ Rule XI does not allow the trial 
committee to make recommendations to the Senate as to how 
Senators should vote on articles of impeachment.\97\ The Senate 
found Judge Claiborne guilty as charged in article I by a vote 
of 87 to 10 (with one ``present'') and guilty as charged in 
article II by a vote of 90 to 7 (with one ``present'').\98\ He 
was found not guilty on article III by vote of 46 (guilty) to 
17 (not guilty) with 35 ``present''--a two-thirds majority of 
Senators present being required for conviction on an article of 
impeachment.\99\ Judge Claiborne was convicted of the charge in 
article IV by vote of 89 to 8 (with one ``present''). \100\
---------------------------------------------------------------------------
    \96\ 132 Cong. Rec. S11,673 (daily ed. Aug. 14, 1986).
    \97\ On the Impeachment of Harry E. Claiborne, S. Rep. No. 99-511, 
99th Cong., 2d Sess. 1 (1986).
    \98\ 132 Cong. Rec. S15,760-61 (daily ed. Oct. 9, 1986).
    \99\ 132 Cong. Rec. S15,761 (daily ed. Oct. 9, 1986). See U.S. 
Const. art. I, Sec. 3, cl. 6.
    The reason for the Senate's vote on this article might have been 
that many Senators were concerned that in voting in favor of the 
article, they wouldn't be making their own finding of guilt, but would 
be accepting as dispositive the jury verdict. See 132 Cong. Rec. 
S15,763 (daily ed. Oct. 9, 1986)(statement of Senator Bingaman) & 132 
Cong. Rec. S15,767 (daily ed. Oct. 9, 1986)(statement of Senator 
Specter).
    \100\ 132 Cong. Rec. S15,762 (daily ed. Oct. 9, 1986).
---------------------------------------------------------------------------
3. DISTRICT JUDGE WALTER NIXON
            A. PROCEEDINGS IN THE HOUSE
    Walter L. Nixon, Jr., was a judge of the United States 
District Court for the Southern District of Mississippi. A 
federal jury convicted Judge Nixon of two counts of perjury on 
February 9, 1986 (acquitting him of an illegal gratuity count), 
and he was sentenced to five years imprisonment on each count, 
the terms to run concurrently.\101\ Subsequent to the 
exhaustion of his appellate rights, on March 15, 1988, the 
Judicial Conference transmitted to the House of Representatives 
a determination that Judge Nixon's impeachment might be 
warranted.\102\ On March 17, 1988, H.Res. 407, a bill 
impeaching Judge Nixon, was introduced and referred to the 
Judiciary Committee, which in turn referred it to the 
Subcommittee on Civil and Constitutional Rights.\103\ The 
Subcommittee's investigation, including hearings, proceeded to 
the end of the 100th Congress.\104\ H.Res. 87, impeaching Judge 
Nixon, was introduced on February 22, 1989, and also referred 
to the Subcommittee on Civil and Constitutional Rights.\105\ On 
March 21, 1989, the Subcommittee amended the resolution and 
voted 8 to 0 to favorably report it to the full Judiciary 
Committee, which, on April 25, 1989, voted 34 to 0 to report 
the resolution favorably to the House floor.\106\ On May 10, 
1989, the House passed H.Res. 87 by vote of 417 to 0.\107\
---------------------------------------------------------------------------
    \101\ Impeachment of Walter L. Nixon, Jr., H.R. Rep. No. 101-36, 
101st Cong., 1st Sess. 12 (1989).
    \102\ Id. at 13.
    \103\ Id.
    \104\ Id. at 14-15.
    \105\ Id. at 15.
    \106\ Id. at 15-16.
    \107\ 135 Cong. Rec. 8823 (1989).
---------------------------------------------------------------------------
            B. ARTICLES OF IMPEACHMENT \108\
---------------------------------------------------------------------------
    \108\ Proceedings of the United States Senate, supra note 42, at 
432-35.
---------------------------------------------------------------------------
    Article I charged that in testimony before a grand jury 
investigating his business relationship with an individual and 
a state prosecutor's handling of a drug smuggling prosecution 
of that individual's son, Judge Nixon knowingly made a false or 
misleading statement in violation of his oath to tell the truth 
to the effect that he never discussed the prosecution with the 
state prosecutor.
    Article II charged that in testimony before the same grand 
jury, Judge Nixon knowingly made a false or misleading 
statement in violation of his oath to tell the truth to the 
effect that he never influenced anyone with respect to the drug 
smuggling case.
    Article III charged that by virtue of his office, Judge 
Nixon had ``raised substantial doubt as to his judicial 
integrity, undermined confidence in the integrity and 
impartiality of the judiciary, betrayed the trust of the people 
of the United States, disobeyed the laws of the United States 
and brought disrepute on the Federal courts and the 
administration of justice by the Federal courts. . . .'' It was 
charged that after entering into an oil and gas investment with 
an individual, Judge Nixon had conversations with a state 
prosecutor and others relative to a pending criminal 
proceedings in state court in which the individual's son was 
facing drug conspiracy charges. Judge Nixon was charged with 
concealing those conversations through a series of false or 
misleading statements knowingly made to an attorney from the 
Department of Justice and a special agent of the FBI. He was 
also charged with concealing those conversations by knowingly 
making a series of false or misleading statements to a federal 
grand jury during testimony under oath.
            C. PROCEEDINGS IN THE SENATE
    On May 11, 1989, the Senate passed S.Res. 128.\109\ The 
resolution, in conjunction with rule XI of the Rules of 
Procedure and Practice in the Senate When Sitting on 
Impeachment Trials, provided that a committee of twelve 
Senators would receive evidence and hear testimony relating to 
the articles of impeachment against Judge Nixon and provide the 
transcripts of its proceedings to the Senate. The committee 
carried out its duties and transmitted a record of its 
proceedings to the Senate on October 16, 1989.\110\ On November 
3, 1989, the Senate first rejected Judge Nixon's motion for a 
trial by the full Senate by vote of 7 to 90.\111\ It also 
rejected his motion to dismiss impeachment article III by vote 
of 34 to 63.\112\ He was then found guilty on article I by vote 
of 89 to 8 and on article II by vote of 78 to 19, and not 
guilty on article III by a vote of 57 (guilty) to 40.\113\
---------------------------------------------------------------------------
    \109\ 135 Cong. Rec. 8989 (1989).
    \110\ Proceedings of the United States Senate, supra note 42, at 
363.
    \111\ Id. at 430.
    \112\ Id. at 431.
    \113\ Id. at 432-36.
---------------------------------------------------------------------------
            D. MISCELLANEOUS
    Judge Nixon's claim that the Senate had not properly tried 
him under the impeachment clause of the Constitution was 
rejected by the Supreme Court in Nixon v. United States \114\ 
as non-justiciable, involving a political question that should 
be left to the Senate to decide. He had alleged that Senate 
rule XI, which allowed a committee of Senators to hear evidence 
and report to the full Senate regarding articles of 
impeachment, violated article I, section 3, clause 6 of the 
Constitution, which provides that the ``Senate shall have the 
sole Power to try all Impeachments.''
---------------------------------------------------------------------------
    \114\ 506 U.S. 224 (1993).
---------------------------------------------------------------------------
4. DISTRICT JUDGE ALCEE HASTINGS
            A. PROCEEDINGS IN THE HOUSE
    Alcee L. Hastings was a judge of the United States District 
Court for the Southern District of Florida. On February 4, 
1983, a federal jury acquitted Judge Hastings of charges that 
he and a friend had conspired to solicit a bribe from 
defendants in a criminal case heard by Judge Hastings (while in 
a separate trial, a jury had convicted his alleged co-
conspirator on these charges).\115\ On March 17, 1987, the 
Chief Justice of the United States, acting on behalf of the 
Judicial Conference, transmitted a determination to the House 
of Representatives stating that Judge Hastings had engaged in 
conduct that might constitute one or more grounds for 
impeachment.\116\ The Subcommittee on Criminal Justice 
investigated the matter and held numerous hearings.\117\ It was 
learned that Judge Hastings had allegedly improperly disclosed 
confidential information that he had received while supervising 
a wiretap.\118\ On July 7, 1988, the Subcommittee unanimously 
voted to adopt articles of impeachment that were introduced as 
H.Res. 499; on July 26, 1988, the Committee voted to adopt the 
resolution, as amended, by a vote of 32 to 1 (two of the 17 
articles were adopted by voice vote).\119\ On August 3, 1988, 
the resolution was passed by the House by a vote of 413 to 3 
with 4 members answering ``present.'' \120\
---------------------------------------------------------------------------
    \115\ Impeachment of Alcee L. Hastings, H.R. Rep. No. 100-810, 
100th Cong., 2d Sess. at 8 (1988).
    \116\ Id. at 7.
    \117\ Id. at 10.
    \118\ Id. at 9.
    \119\ Id. at 12-13.
    \120\ 134 Cong. Rec. 20,221 (1988).
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            B. ARTICLES OF IMPEACHMENT \121\
---------------------------------------------------------------------------
    \121\ 134 Cong. Rec. 20,206-07 (1988).
---------------------------------------------------------------------------
    Article I charged that in 1981, Judge Hastings and a friend 
engaged in a conspiracy to obtain $150,000 from defendants in a 
racketeering and embezzlement case tried before Judge Hastings 
in return for sentences which would not require incarceration.
    Article II charged that during the course of his defense 
while on trial for the conspiracy, Judge Hastings made a false 
statement under oath intending to mislead the trier of fact 
regarding whether he had entered into an agreement to seek the 
$150,000 bribe.
    Article III charged that during the course of his defense, 
Judge Hastings made a false statement under oath intending to 
mislead the trier of fact regarding whether he had agreed to 
modify the sentences of the defendants in the racketeering and 
embezzlement case in return for the bribe.
    Article IV charged that during the course of his defense, 
Judge Hastings made a false statement under oath intending to 
mislead the trier of fact regarding whether he had agreed in 
connection with the bribe to return property of the defendants 
in the racketeering and embezzlement case that he had 
previously ordered forfeited.
    Article V charged that during the course of his defense, 
Judge Hastings made a false statement under oath intending to 
mislead the trier of fact regarding whether he had appeared at 
a hotel to demonstrate his participation in the bribery scheme.
    Article VI charged that during the course of his defense, 
Judge Hastings made a false statement under oath intending to 
mislead the trier of fact regarding whether he expected his co-
conspirator to show up at his hotel room one day.
    Article VII charged that during the course of his defense, 
Judge Hastings made a false statement under oath intending to 
mislead the trier of fact regarding whether he instructed his 
law clerk to prepare an order returning property to the 
defendants in the racketeering and embezzlement case in 
furtherance of the bribery scheme.
    Article VIII charged that during the course of his defense, 
Judge Hastings made a false statement under oath intending to 
mislead the trier of fact regarding whether a telephone 
conversation with his co-conspirator was made in furtherance of 
the bribery scheme.
    Article IX charged that during the course of his defense, 
Judge Hastings made a false statement under oath intending to 
mislead the trier of fact regarding whether certain letters 
were fabricated in an effort to hide the bribery scheme.
    Article X charged that during the course of his defense, 
Judge Hastings made a false statement under oath intending to 
mislead the trier of fact regarding whether he had actually 
spoken to a certain individual during a phone call that was 
being offered as exculpatory evidence.
    Article XI charged that during the course of his defense, 
Judge Hastings made a false statement under oath intending to 
mislead the trier of fact regarding whether he had actually 
spoken to a certain individual during a phone call that was 
being offered as exculpatory evidence.
    Article XII charged that during the course of his defense, 
Judge Hastings made a false statement under oath intending to 
mislead the trier of fact regarding whether he had actually 
spoken to a certain individual during a phone call that was 
being offered as exculpatory evidence.
    Article XIII charged that during the course of his defense, 
Judge Hastings made a false statement under oath intending to 
mislead the trier of fact regarding whether he could actually 
reach a certain individual at a certain phone number.
    Article XIV charged that during the course of his defense, 
Judge Hastings made a false statement under oath intending to 
mislead the trier of fact regarding whether he had actually 
made two phone calls that were being offered as exculpatory 
evidence.
    Article XV charged that during the course of his defense, 
Judge Hastings made a false statement under oath intending to 
mislead the trier of fact regarding his motive in taking an 
airline trip after his co-conspirator had been arrested.
    Article XVI charged that while acting as supervising judge 
of a federal wiretap, Judge Hastings revealed to certain 
individuals highly confidential information disclosed by the 
wiretap. The disclosure thwarted, and ultimately led to the 
termination of, an investigation by federal law enforcement 
agents.
    Article XVII charged that through his actions, Judge 
Hastings undermined ``confidence in the integrity and 
impartiality of the judiciary and betray[ed] the trust of the 
people of the United States, thereby bringing disrepute on the 
Federal courts and the administration of justice by the Federal 
courts.''
            C. PROCEEDINGS IN THE SENATE
    On September 30, 1988, the Senate passed S.Res. 480 to 
carry the impeachment proceedings against Judge Hastings over 
to the 101st Congress.'' \122\ On March 16, 1989, the Senate 
agreed to S.Res. 38.\123\ The resolution, in conjunction with 
rule XI of the Rules of Procedure and Practice in the Senate 
When Sitting on Impeachment Trials, provided that a committee 
of twelve Senators would receive evidence and hear testimony 
relating to the articles of impeachment and provide transcripts 
of its proceedings to the Senate. The same day, the Senate 
dismissed two motions of Judge Hastings, the first seeking the 
dismissal of articles of impeachment I-XV based upon his prior 
acquittal and the ensuing lapse of time, and the second seeking 
the dismissal of article XVII for its failure to state an 
impeachable offense.\124\ The first motion lost by a vote of 1 
to 92 and the second motion lost by a vote of 0 to 93.\125\
---------------------------------------------------------------------------
    \122\ 134 Cong. Rec. 26,867-68 (1988).
    \123\ 135 Cong. Rec. 4533 (1989).
    \124\ 135 Cong. Rec. 4532-33 (1989).
    \125\ Id.
---------------------------------------------------------------------------
    The trial committee sent a record of its proceedings to the 
Senate on October 2, 1989.\126\ On October 20, 1989, the Senate 
found Judge Hastings to be: guilty on article I by a vote of 69 
to 26; guilty on article II by a vote of 68 to 27; guilty on 
article III by a vote of 69 to 26; guilty on article IV by a 
vote of 67 to 28; guilty on article V by a vote of 67 to 28; 
not guilty on article VI by a vote of 48 (guilty) to 47; guilty 
on article VII by a vote of 69 to 26; guilty on article VIII by 
a vote of 68 to 27; guilty on article IX by a vote of 70 to 25; 
not guilty on article XVI by a vote of 0 to 95; and not guilty 
on article XVII by a vote of 60 (guilty) to 35.\127\ The Senate 
did not vote on articles X through XV.
---------------------------------------------------------------------------
    \126\ 135 Cong. Rec. 22,639 (1989).
    \127\ 135 Cong. Rec. 25,330-35 (1989).
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            D. MISCELLANEOUS
    Judge Hastings (with Judge Walter Nixon as intervening 
plaintiff) brought suit to stop the impeachment proceedings 
alleging that the Senate's use of a trial committee violated 
article I, section 3, clause 6 of the Constitution and thus 
denied him due process.\128\ The court found the complaint to 
be a non-justiciable political question.\129\ Subsequent to his 
removal from office, Judge Hastings brought suit challenging 
his impeachment on similar grounds. While Hastings initially 
prevailed, his victory did not survive the Supreme Court's 
decision in Nixon v. United States.\130\
---------------------------------------------------------------------------
    \128\ Hastings v. United States Senate, 716 F. Supp. 38 (D.D.C. 
1989).
    \129\ Id. at 40. The court also rejected other claims of Judge 
Hastings, including that his fifth amendment right against double 
jeopardy was being violated because he was being impeached after having 
been acquitted in a criminal trial, and that he was being denied the 
effective assistance of counsel because the Senate would not pay his 
attorney's fees. Id. at 41-42.
    \130\ Hastings v. United States, 802 F. Supp. 490 (D.D.C. 1992), 
vacated and remanded, 988 F.2d 1280 (D.C. Cir. 1993), dismissed 837 F. 
Supp. 3 (D.D.C. 1993).
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                               APPENDIX 2

    Constitutional Grounds for Presidential Impeachment, report 
written in 1974 by the impeachment inquiry staff of the House 
Committee on the Judiciary.
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