[Deschler's Precedents, Volume 3]
[Chapter 14. Impeachment Powers]
[D. History of Proceedings]
[§ 17. Impeachment of Judge Louderback]
[From the U.S. Government Printing Office, www.gpo.gov]


[Page 2198-2204]
 
                               CHAPTER 14
 
                           Impeachment Powers
 
                       D. HISTORY OF PROCEEDINGS
 
Sec. 17. Impeachment of Judge Louderback

Consideration of Committee Report

Sec. 17.1 The House considered the matter of the impeachment of U.S. 
    District Judge Harold Louderback under a unanimous-consent 
    agreement which allowed the minority of the Committee on

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    the Judiciary to offer, to the reported resolution recommending 
    abatement of proceedings, a substitute amendment impeaching Judge 
    Louderback and setting forth articles of impeachment.

    On Feb. 24, 1933, Speaker John N. Garner, of Texas, recognized Mr. 
Thomas D. McKeown, of Oklahoma, to call up a resolution, reported by 
the Committee on the Judiciary, recommending that charges against 
Harold Louderback, U.S. District Judge for the Northern District of 
California, did not merit impeachment (H. Res. 387; H. Rept. No. 2065). 
The minority report dissented from that recommendation and proposed a 
resolution and articles of impeachment.(9)
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 9. 76 Cong. Rec. 4913, 4914, 72d Cong. 2d Sess. See, generally, 6 
        Cannon's Precedents Sec. 514.
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    Mr. Earl C. Michener, of Michigan, commented on the fact that the 
report of the committee recommended censure of the judge, rather than 
impeachment:

        Mr. Michener. Mr. Speaker, in answer to the gentleman from 
    Alabama, let me make this observation. The purpose of referring a 
    matter of this kind to the Committee on the Judiciary is to 
    determine whether or not in the opinion of the Committee on the 
    Judiciary there is sufficient evidence to warrant impeachment by 
    the House. If the Committee on the Judiciary finds those facts 
    exist, then the Committee on the Judiciary makes a report to the 
    House recommending impeachment, and that undoubtedly is privileged. 
    However, a custom has grown up recently in the Committee on the 
    Judiciary of including in the report a censure. I do not believe 
    that the constitutional power of impeachment includes censure. We 
    have but one duty, and that is to impeach or not to impeach. Today 
    we find a committee report censuring the judge. The resolution 
    before the House presented by a majority of the committee is 
    against impeachment. The minority members have filed a minority 
    report, recommending impeachment. I am making this observation with 
    the hope that we may get back to the constitutional power of 
    impeachment.(10)
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10. Id. at p. 4914. The committee report stated ``the committee 
        censures the judge for conduct prejudicial to the dignity of 
        the judiciary in appointing incompetent receivers . . . for 
        allowing fees that seem excessive, and for a high degree of 
        indifference to the interest of litigants in receiverships.'' 
        H. Rept. No. 2065, Committee on the Judiciary, 72d Cong. 2d 
        Sess.
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    Discussion ensued as to controlling debate on the resolution so as 
to effectuate the understanding agreed on in committee that the 
previous question not be ordered until the minority had an opportunity 
to offer an amendment in the nature of a substitute for the resolution.
    The House agreed to the following unanimous-consent request

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propounded by Mr. McKeown (and suggested by Speaker Garner):

        The Speaker: Under the rules of the House the gentleman from 
    Oklahoma [Mr. McKeown] has one hour in which to discuss this 
    resolution, unless some other arrangement is made.
        Mr. McKeown: Mr. Speaker, I ask unanimous consent that two 
    hours' time be granted on a side. One-half of mine I shall yield to 
    the gentleman from Missouri [Mr. Dyer]. At the end of the two 
    hours' time, that the previous question shall be considered as 
    ordered.
        Mr. [Fiorello H.] Laguardia [of New York]: Mr. Speaker, will 
    the gentleman yield?
        Mr. McKeown: Yes.
        Mr. LaGuardia: The gentleman will remember that the committee 
    unanimously voted that the previous question should not be 
    considered as ordered until the majority had opportunity to offer 
    the articles of impeachment.
        Mr. McKeown: I yield now to the gentleman for that purpose.
        The Speaker: If gentlemen will permit, let the Chair make a 
    suggestion. The Chair understands that the committee has something 
    of an understanding that there would be an opportunity to vote upon 
    the substitute for the majority resolution. Is that correct?
        Mr. McKeown: Yes.
        The Speaker: Then the Chair suggests to the gentleman from 
    Oklahoma that he ask unanimous consent that general debate be 
    limited to two hours, one-half to be controlled by himself, and 
    one-half to be controlled by the gentleman from New York.
        Mr. McKeown: I want one-half of my time to be yielded to the 
    gentleman from Missouri, and that the other hour shall be 
    controlled by the gentleman from Texas.
        The Speaker: Then the Chair suggests that the gentleman from 
    Oklahoma control all of the time.
        Mr. [Hatton W.] Sumners [of Texas]: Mr. Speaker, I am quite 
    willing that the gentleman from Oklahoma may control the time, 
    because I am sure that he will make a fair distribution of it.
        Mr. McKeown: Mr. Speaker, I ask unanimous consent that the time 
    for debate be limited to two hours to be controlled by myself, that 
    during that time the gentleman from New York [Mr. La Guardia] be 
    permitted to offer a substitute for the resolution and at the 
    conclusion of the time for debate the previous question be 
    considered as ordered.
        The Speaker: Then the Chair submits this: The gentleman from 
    Oklahoma asks unanimous consent that debate be limited to two 
    hours, to be controlled by the gentleman from Oklahoma, that at the 
    end of that time the previous question shall be considered as 
    ordered, with the privilege, however, of a substitute resolution 
    being offered, to be included in the previous question. Is there 
    objection?
        Mr. [William B.] Bankhead [of Alabama]: Mr. Speaker, reserving 
    the right to object for the purpose of getting the parliamentary 
    situation clarified before we get to the merits, is there any 
    question in the mind of the Speaker, if it is fair to submit such a 
    suggestion, as to whether or not the substitute providing for 
    absolute im

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    peachment would be in order as a substitute for this report?
        The Speaker: That is the understanding of the Chair, that the 
    unanimous-consent agreement is, that the gentleman from New York 
    [Mr. LaGuardia] may offer a substitute, the previous question to be 
    considered as ordered on the substitute and the original resolution 
    at the expiration of the two hours. Is there objection?
        There was no objection.(11)
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11. Id. For more comprehensive treatment of impeachment proceedings 
        against Judge Louderback, see 6 Cannon's Precedents 
        Sec. Sec. 513-524.
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Voting

Sec. 17.2 At the conclusion of debate on the resolution and substitute 
    therefor, in the Harold Louderback impeachment proceedings, a yea 
    and nay vote was taken on the substitute, which was agreed to.

    On Feb. 24, 1933, the House had under consideration a resolution 
abating impeachment proceedings against Judge Louderback. A unanimous-
consent agreement was adopted, as follows:

        The Speaker: (12) . . . The gentleman from Oklahoma 
    (Mr. Thomas D. McKeown] asks unanimous consent that debate be 
    limited to two hours . . . that at the end of that time the 
    previous question shall be considered as ordered, with the 
    privilege, however, of a substitute resolution being offered, to be 
    included in the previous question. . . .
        There was no objection.(13)
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12. John N. Garner (Tex.).
13. 76 Cong. Rec. 4914, 72d Cong. 2d Sess.
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    At the conclusion of the two hours' debate on the resolution 
abating the impeachment proceedings and on the amendment in the nature 
of a substitute, the Speaker put the question on the substitute and 
answered a parliamentary inquiry as to the effect of the vote:

        The Speaker: The question is on the substitute of the gentleman 
    from New York [Mr. LaGuardia].
        The question was taken, and the Chair announced that he was in 
    doubt.
        Mr. [Thomas D.] McKeown of Oklahoma]: Mr. Speaker, a division.
        Mr. [Carl G.] Bachmann [of West Virginia]: Mr. Speaker, I ask 
    for the yeas and nays.
        The yeas and nays were ordered.
        Mr. [Earl C.] Michener [of Michigan]: Mr. Speaker, a 
    parliamentary inquiry.
        The Speaker: The gentleman will state it.
        Mr. Michener: As I understand, a vote of ``aye'' is a vote for 
    impeachment and a vote of ``no'' is against impeachment; is that 
    correct?
        The Speaker: An aye vote on the substitute of the gentleman 
    from New York is a vote to impeach and a ``no'' vote is a vote 
    against impeachment.

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        The Clerk will call the roll.
        The question was taken; and there were--yeas 183, nays 142, 
    answered ``present'' 4, not voting 97.(14)
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14. Id. at p. 4925. The resolution, as amended by the substitute, was 
        then agreed to. H. Jour. 306, 72d Cong. 2d Sess., Feb. 24, 
        1933.
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Election of Managers; Continuation of Proceedings Into New Congress

Sec. 17.3 The House having adopted articles of impeachment against 
    Judge Harold Louderback, the House adopted resolutions appointing 
    managers and notifying the Senate of its actions, but did not 
    resolve the question whether such managers could, without further 
    authority, continue to represent the House in the succeeding 
    Congress.

    The House having adopted the articles of impeachment against Judge 
Louderback on Feb. 24, 1933, Chairman Hatton W. Sumners, of Texas, of 
the Committee on the Judiciary, called up on Feb. 27, 1933, resolutions 
appointing managers and notifying the Senate of the action of the 
House. Discussion ensued as to the power of the managers beyond the 
termination of the Congress (the Congress was to expire on Mar. 3):

                   Impeachment of Judge Harold Louderback

        Mr. Sumners of Texas: Mr. Speaker, I offer the following 
    privileged report from the Committee on the Judiciary, which I send 
    to the desk and ask to have read, and ask its immediate adoption.
        The Clerk read as follows:

                              House Resolution 402

            Resolved, That Hatton W. Sumners, Gordon Browning, Malcolm 
        C. Tarver, Fiorello H. LaGuardia, and Charles I. Sparks, 
        Members of this House, be, and they are hereby, appointed 
        managers to conduct the impeachment against Harold Louderback, 
        United States district judge for the northern district of 
        California; and said managers are hereby instructed to appear 
        before the Senate of the United States and at the bar thereof 
        in the name of the House of Representatives and of all the 
        people of the United States to impeach the said Harold 
        Louderback of misdemeanors in office and to exhibit to the 
        Senate of the United States the articles of impeachment against 
        said judge which have been agreed upon by the House; and that 
        the said managers do demand the Senate take order for the 
        appearance of said Harold Louderback to answer said 
        impeachment, and demand his impeachment, conviction, and 
        removal from office.

        The Speaker Pro Tempore: The question is on agreeing to the 
    resolution.
        Mr. [Thomas L.] Blanton [of Texas]: Mr. Speaker, will the 
    gentleman yield?
        Mr. Sumners of Texas: Yes.
        Mr. Blanton: Is it not usual in such cases to provide for the 
    managers on the part of the House to interrogate witnesses?

[[Page 2203]]

        Mr. Sumners of Texas: This is the usual resolution which is 
    adopted.
        Mr. Blanton: But this resolution does embrace that power and 
    authority?
        Mr. Sumners of Texas: Yes. It is the usual resolution.
        Mr. [William H.] Stafford [of Wisconsin]: Mr. Speaker, will the 
    gentleman yield?
        Mr. Sumners of Texas: Yes.
        Mr. Stafford: This House, which is about to expire, has leveled 
    impeachment articles against a sitting judge. It is impracticable 
    to have the trial of that judge in the expiring days of the 
    Congress. Has the gentleman considered what the procedure will be 
    in respect to having the trial before the Senate in the next 
    Congress?
        Mr. Sumners of Texas: The Committee on the Judiciary today gave 
    full consideration to all of the angles that suggested themselves 
    to the committee for consideration, and this arrangement seems to 
    be more in line with the precedents and to be most definitely 
    suggested by the situation in which we find ourselves.
        Mr. Stafford: Then, I assume, from the gentleman's statement, 
    that it is the purpose that the gentlemen named in the resolution 
    shall represent the House in the next Congress?
        Mr. Sumners of Texas: No; I believe not. I think it is pretty 
    well agreed that the next Congress will probably have to appoint 
    new managers before they may proceed. I think gentlemen on each 
    side agree substantially with that statement as to what probably 
    would be required.
        Mr. Stafford: There is nothing in the Constitution that would 
    prevent Members of this Congress from serving as representatives of 
    this House before the Senate in the next Congress, even though they 
    be not Members of that Congress.
        Mr. Sumners of Texas: I hope my friend will excuse me for not 
    taking the time of the House to discuss that feature of the matter.
        Mr. Stafford: It is quite an important subject.
        Mr. Sumners of Texas: It is an unsettled subject, and one we 
    have tried to avoid.
        The Speaker Pro Tempore: The question is on agreeing to the 
    resolution.
        The resolution was agreed to.
        A motion to reconsider the vote by which the resolution was 
    agreed to was laid on the table.
        Mr. Sumners of Texas: Mr. Speaker, I desire to present a 
    privileged resolution.
        The Clerk read as follows:

                              House Resolution 403

            Resolved, That a message be sent to the Senate to inform 
        them that this House has impeached Harold Louderback, United 
        States district judge for the Northern District of California, 
        for misdemeanors in office, and that the House has adopted 
        articles of impeachment against said Harold Louderback, judge 
        as aforesaid, which the managers on the part of the House have 
        been directed to carry to the Senate, and that Hatton W. 
        Sumners, Gordon Browning, Malcolm C. Tarver, Fiorello H. 
        LaGuardia, and Charles I. Sparks, Members of this House, have 
        been appointed such managers.

        The resolution was agreed to.

[[Page 2204]]

        A motion to reconsider the vote by which the resolution was 
    agreed to was laid on the table.(15)
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15. 76 Cong. Rec. 5177, 5178, 72d Cong. 2d Sess.
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    Parliamentarian's Note: In the succeeding Congress, an issue arose 
as to the power of managers elected in one Congress to continue their 
functions in a new Congress. On Mar. 13, 1933, the 73d Congress having 
convened, the Senate convened as a Court of Impeachment and received 
the managers on the part of the House, who were those Members re-
elected to the House who had been appointed as managers in the 72d 
Congress (two of the five managers were not reelected to the House). On 
Mar. 22, Mr. Sumners called up a resolution appointing two new Members, 
and reappointing the three re-elected Members, as managers on the part 
of the House to conduct the impeachment trial of Judge Louderback. 
Nevertheless, Mr. Sumners asserted that the managers elected in one 
Congress had the capacity to continue in that function in a new 
Congress without reappointment.(16)
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16. See 6 Cannon's Precedents Sec. Sec. 516, 517.
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    In arguing that the impeachment managers elected by one House 
should retain their powers in a succeeding Congress, Chairman Sumners 
referred to the lengthy period of time that could occur between the 
appointment of managers, the adjournment of Congress, and the 
commencement of a trial.(17)
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17. See 6 Cannon's Precedents Sec. 517.
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Sec. 17.4 The resolution of impeachment against Judge Louderback having 
    been presented to the Senate on the last day of the 72d Congress, 
    the Senate conducted the trial in the 73d Congress.

    On Mar. 3, 1933, the last day of the 72d Congress under 
constitutional practice prior to the adoption of the 20th amendment, 
the managers on the part of the House in the Harold Louderback 
impeachment appeared before the Senate and read the resolution and 
articles of impeachment. The Senate adopted a special order that the 
Senate begin sitting for trial on the first day of the 73d 
Congress.(18)
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18. 6 Cannon's Precedents Sec. 515.
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    President Franklin D. Roosevelt convened the 73d Congress on Mar. 
9,1933, prior to the constitutional day of the first Monday in 
December, and the Senate organized for trial on that date, pursuant to 
its special order.(19)
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19. 6 Cannon's Precedents Sec. 516. For the proclamation convening the 
        73d Congress, see H. Jour. 3, 73d Cong. 1st Sess., Mar. 9, 
        1933.
            On May 24, 1933, the Senate acquitted Judge Louderback on 
        all articles. See 6 Cannon's Precedents Sec. 524.

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