[Deschler's Precedents, Volume 3, Chapters 10 - 14]
[Chapter 14. Impeachment Powers]
[A. Generally]
[§ 3. Grounds for Impeachment; Form of Articles]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 1955-2015]
CHAPTER 14
Impeachment Powers
A. GENERALLY
Sec. 3. Grounds for Impeachment; Form of Articles
Article II, section 4 of the U.S. Constitution defines the grounds
for impeachment and conviction as ``treason, bribery, or other high
crimes and misdemeanors.'' A further provision of the Constitution
which has been construed to bear upon the impeachment of federal judges
is article III, section 1, which provides that judges of the supreme
and inferior courts ``shall hold their offices during good behaviour.''
When the House determines that grounds for impeachment exist, and
they are adopted by the House, they are presented to the Senate in
``articles'' of impeachment.(20) Any one of the articles may
provide a sufficient basis or ground for impeachment. The impeachment
in 1936 of Halsted L. Ritter, a U.S. District Court Judge, was based on
seven articles of impeachment as amended by the House. The first six
articles charged him with several instances of judicial misconduct,
including champerty, corrupt practices, violations of the Judicial
Code, and violations of criminal law. Article VII charged actions and
conduct, including a restatement of some of the charges con
[[Page 1956]]
tained in the preceding articles, ``the reasonable and probable
consequence'' of which was ``to bring his court into scandal and
disrepute,'' to the prejudice of his court, of public confidence in his
court, and of public respect for and confidence in the federal
judiciary.(1) However, in the Senate, Judge Ritter was
convicted only on the seventh article. The respondent had moved, before
commencement of trial, to strike article I, or in the alternative to
require election as to articles I and II, on the ground that the
articles duplicated the same offenses, but the presiding officer
overruled the motion and his decision was not challenged in the Senate.
The respondent also moved to strike article VII, the ``general''
article, on the ground that it improperly cumulated and duplicated
offenses already stated in the preceding articles, but this motion was
rejected by the Senate.(2)
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20. Jefferson's Manual states that: [B]y the usage of Parliament, in
impeachment for writing or speaking, the particular words need
not be specified in the accusation. House Rules and Manual
(Jefferson's Manual) Sec. 609 (1973).
1. See Sec. 3.2, infra.
2. See Sec. 3.4, infra.
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At the conclusion of the Ritter trial, and following conviction
only on article VII, a point of order was raised against the vote in
that the article combined the grounds that were alleged for
impeachment. The President pro tempore overruled the point of
order.(3)
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3. See Sec. 3.5, infra.
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The various grounds for impeachment and the form of impeachment
articles have been documented during recent investigations. Following
the inquiry into charges against President Nixon, the Committee on the
Judiciary reported to the House a report recommending impeachment,
which report included the text of a resolution and articles impeaching
the President.(4) As indicated by the articles, and by the
conclusions of the report as to the specific articles, the Committee on
the Judiciary determined that the grounds for Presidential impeachment
need not be indictable or criminal; articles II and III impeached the
President for a course of conduct constituting an abuse of power and
for failure to comply with subpenas issued by the committee during the
impeachment inquiry.(5) The committee also concluded that an
article of impeachment could cumulate charges and facts constituting a
course of conduct, as in article II.(6)
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4. See Sec. 3.1, infra.
5. See Sec. 3.7, infra, for the majority views and Sec. 3.8, infra,
for the minority views on the articles of impeachment.
6. See Sec. 3.3, infra, for the majority and minority views on article
II.
In its final report the Committee on the Judiciary cited a
staff report by the impeachment inquiry staff on the grounds
for presidential impeachment, prepared before the committee had
proceeded to compile all the evidence and before the committee
had proceeded to consider a resolution and articles of
impeachment. While the report and its conclusions were not
intended to represent the views of the committee or of its
individual members, the report is printed in part in the
appendix to this chapter as a synopsis of the history, origins,
and concepts of the impeachment process and of the grounds for
impeachment. See Sec. 3.6, infra, and appendix, infra.
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[[Page 1957]]
The grounds for impeachment of federal judges were scrutinized in
1970, in the inquiry into the conduct of Associate Justice Douglas of
the Supreme Court. Concepts of impeachment were debated on the floor of
the House, as to the ascertainability of the definition of an
impeachable offense, and as to whether a federal judge could be
impeached for conduct not related to the performance of his judicial
function or for judicial conduct not criminal in nature.(7)
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7. See Sec. Sec. 3.9-3.12, infra.
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A special subcommittee of the Committee on the Judiciary was
created to investigate and report on the charges of impeachment against
Justice Douglas, and submitted to the committee a final report
recommending against impeachment, finding the evidence insufficient.
The report concluded that a federal judge could be impeached for
judicial conduct which is either criminal or a serious abuse of public
duty, or for nonjudicial conduct which is criminal.(8)
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8. See Sec. 3.13, infra.
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Cross References
Amendments to articles adopted by the House, see Sec. 10, infra.
Charges not resulting in impeachment, see Sec. 14, infra.
Grounds for conviction in the Ritter impeachment trial, see Sec. 18,
infra.
Collateral Reference
Articles of Impeachment Voted by the House of Representatives, see
Impeachment, Selected Materials, Committee on the Judiciary, H.
Doc. No. 93-7, 93d Cong. 1st Sess., Oct.
1973. -------------------
Form of Resolution and Articles of Impeachment
Sec. 3.1 Articles of impeachment are reported from the Committee on the
Judiciary in the form of a resolution.
On Aug. 20, 1974,(9) the Committee on the Judiciary
submitted to the House a report on its inves
[[Page 1958]]
tigation into charges of impeachable offenses against President Richard
Nixon. The committee included in the text of the report a resolution
and articles of impeachment which had been adopted by the committee:
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9. H. Rept. No. 93-1305, Committee on the Judiciary, printed in the
Record at 120 Cong. Rec. 29219, 29220, 93d Cong. 2d Sess., Aug.
20, 1974. For complete text of H. Rept. No. 93-1305, see id. at
pp. 29219-361.
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Impeaching Richard M. Nixon, President of the United States, of
high crimes and misdemeanors.
Resolved, That Richard M. Nixon, President of the United
States, is impeached for high crimes and misdemeanors, and that the
following articles of impeachment be exhibited to the Senate:
Articles of impeachment exhibited by the House of
Representatives of the United States of America in the name of
itself and of all of the people of the United States of America,
against Richard M. Nixon, President of the United States of
America, in maintenance and support of its impeachment against him
for high crimes and misdemeanors.
Article I
In his conduct of the office of President of the United States,
Richard M. Nixon, in violation of his constitutional oath
faithfully to execute the office of President of the United States
and, to the best of his ability, preserve, protect, and defend the
Constitution of the United States, and in violation of his
constitutional duty to take care that the laws be faithfully
executed, has prevented, obstructed, and impeded the administration
of justice, in that:
On June 17, 1972, and prior thereto, agents of the Committee
for the Reelection of the President committed unlawful entry of the
headquarters of the Democratic National Committee in Washington,
District of Columbia, for the purpose of securing political
intelligence. Subsequent thereto, Richard M. Nixon, using the
powers 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 such unlawful
entry; to cover up, conceal and protect those responsible; and to
conceal the existence and scope of other unlawful covert
activities.
The means used to implement this course of conduct or plan
included one or more of the following:
(1) making or causing to be made false or misleading
statements to lawfully authorized investigative officers and
employees of the United States;
(2) withholding relevant and material evidence or
information from lawfully authorized investigative officers and
employees of the United States;
(3) approving, condoning, acquiescing in, and counseling
witnesses with respect to the giving of false or misleading
statements to lawfully authorized investigative officers and
employees of the United States and false or misleading
testimony in duly instituted judicial and congressional
proceedings;
(4) interfering or endeavoring to interfere with the
conduct of investigations by the Department of Justice of the
United States, the Federal Bureau of Investigation, the Office
of Watergate Special Prosecution Force, and Congressional
Committees;
(5) approving, condoning, and acquiescing in, the
surreptitious payment of substantial sums of money for the
purpose of obtaining the silence or influencing the testimony
of
[[Page 1959]]
witnesses, potential witnesses or individuals who participated
in such unlawful entry and other illegal activities;
(6) endeavoring to misuse the Central Intelligence Agency,
an agency of the United States;
(7) disseminating information received from officers of the
Department of Justice of the United States to subjects of
investigations conducted by lawfully authorized investigative
officers and employees of the United States, for the purpose of
aiding and assisting such subjects in their attempts to avoid
criminal liability;
(8) making false or misleading public statements for the
purpose of deceiving the people of the United States into
believing that a thorough and complete investigation had been
conducted with respect to allegations of misconduct on the part
of personnel of the executive branch of the United States and
personnel of the Committee for the Re-election of the
President, and that there was no involvement of such personnel
in such misconduct; or
(9) endeavoring to cause prospective defendants, and
individuals duly tried and convicted, to expect favored
treatment and consideration in return for their silence or
false testimony, or rewarding individuals for their silence or
false testimony.
In all of this, Richard M. Nixon has 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.
Wherefore Richard M. Nixon, by such conduct, warrants
impeachment and trial, and removal from office.
Article II
Using the powers of the office of President of the United
States, Richard M. Nixon, in violation of his constitutional oath
faithfully to execute the office of President of the United States
and, to the best of his ability, preserve, protect, and defend the
Constitution of the United States, and in disregard of his
constitutional duty to take care that the laws be faithfully
executed, has repeatedly engaged 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.
This conduct has included one or more of the following:
(1) He has, acting personally and through his subordinates
and agents, endeavored to obtain from the Internal Revenue
Service, in violation of the constitutional rights of citizens,
confidential information contained in income tax returns for
purposes not authorized by law, and to cause, in violation of
the constitutional rights of citizens, income tax audits or
other income tax investigations to be initiated or conducted in
a discriminatory manner.
(2) He misused the Federal Bureau of Investigation, the
Secret Service, and other executive personnel, in violation or
disregard of the constitutional rights of citizens, by
directing or authorizing such agencies or personnel to conduct
or continue electronic surveillance or other investigations for
purposes unrelated to national security, the enforcement of
laws, or any other lawful function of his office; he did
direct, authorize, or permit the use of information obtained
thereby for purposes unrelated to national security, the
enforcement of laws, or any other lawful function of his
office; and he did direct the concealment of
[[Page 1960]]
certain records made by the Federal Bureau of Investigation of
electronic surveillance.
(3) He has, acting personally and through his subordinates
and agents, in violation or disregard of the constitutional
rights of citizens, authorized and permitted to be maintained a
secret investigative unit within the office of the President,
financed in part with money derived from campaign
contributions, which unlawfully utilized the resources of the
Central Intelligence Agency, engaged in covert and unlawful
activities, and attempted to prejudice the constitutional right
of an accused to a fair trial.
(4) He has failed to take care that the laws were
faithfully executed by failing to act when he knew or had
reason to know that his close subordinates endeavored to impede
and frustrate lawful inquiries by duly constituted executive,
judicial, and legislative entities concerning the unlawful
entry into the headquarters of the Democratic National
Committee, and the cover-up thereof, and concerning other
unlawful activities, including those relating to the
confirmation of Richard Kleindienst as Attorney General of the
United States, the electronic surveillance of private citizens,
the break-in into the offices of Dr. Lewis Fielding, and the
campaign financing practices of the Committee to Reelect the
President.
(5) In disregard of the rule of law, he knowingly misused
the executive power by interfering with agencies of the
executive branch, including the Federal Bureau of
Investigation, the Criminal Division, and the Office of
Watergate Special Prosecution Force, of the Department of
Justice, and the Central Intelligence Agency, in violation of
his duty to take care that the laws be faithfully executed.
In all of this, Richard M. Nixon has 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.
Wherefore Richard M. Nixon, by such conduct, warrants
impeachment and trial, and removal from office.
Article III
In his conduct of the office of President of the United States,
Richard M. Nixon, contrary to his oath faithfully to execute the
office of President of the United States and, to the best of his
ability, preserve, protect, and defend the Constitution of the
United States, and in violation of his constitutional duty to take
care that the laws be faithfully executed, has failed without
lawful cause or excuse to produce papers and things as directed by
duly authorized subpoenas issued by the Committee on the Judiciary
of the House of Representatives on April 11, 1974, May 15, 1974,
May 30, 1974, and June 24, 1974, and willfully disobeyed such
subpoenas. The subpoenaed papers and things were deemed necessary
by the Committee in order to resolve by direct evidence
fundamental, factual questions relating to Presidential direction,
knowledge, or approval of actions demonstrated by other evidence to
be substantial grounds for impeachment of the President. In
refusing to produce these papers and things, Richard M. Nixon,
substituting his judgment as to what materials were necessary for
the inquiry, interposed the powers of the Presidency against the
lawful subpoenas of the House of Representatives, thereby assuming
to himself functions and judgments necessary to the exercise of the
sole power of impeachment vested by the Constitution in the House
of Representatives.
[[Page 1961]]
In all of this, Richard M. Nixon has 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.
Wherefore Richard M. Nixon, by such conduct, warrants
impeachment and trial, and removal from office.
Sec. 3.2 Articles impeaching Judge Halsted L. Ritter were reported to
the House in two separate resolutions.
In March 1936, articles of impeachment against Judge Ritter were
reported to the House: 10
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10. H. Res. 422, 80 Cong. Rec. 3066-68, 74th Cong. 2d Sess., Mar. 2,
1936 (Articles I-IV); H. Res. 471, 80 Cong. Rec. 4597-99, 74th
Cong. 2d Sess., Mar. 30, 1936 (amending Article III and adding
new Articles IV-VII).
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[H. Res. 422]
Resolved, That Halsted L. Ritter, who is a United States
district judge for the southern district of Florida, be impeached
for misbehavior, and for high crimes and misdemeanors; and that the
evidence heretofore taken by the subcommittee of the Committee on
the Judiciary of the House of Representatives under H. Res. 163 of
the Seventy-third Congress sustains articles of impeachment, which
are hereinafter set out; and that the said articles be, and they
are hereby, adopted by the House of Representatives, and that the
same shall be exhibited to the Senate in the following words and
figures, to wit:
Articles of impeachment of the House of Representatives of the
United States of America in the name of themselves and of all of
the people of the United States of America against Halsted L.
Ritter, who was appointed, duly qualified, and commissioned to
serve, during good behavior in office, as United States district
judge for the southern district of Florida, on February 15, 1929.
Article I
That the said Halsted L. Ritter, having been nominated by the
President of the United States, confirmed by the Senate of the
United States, duly qualified and commissioned, and while acting as
a United States district judge for the southern district of
Florida, was and is guilty of misbehavior and of a high crime and
misdemeanor in office in manner and form as follows, to wit: On or
about October 11, 1929, A. L. Rankin (who had been a law partner of
said judge immediately before said judge's appointment as judge),
as solicitor for the plaintiff, filed in the court of the said
Judge Ritter a certain foreclosure suit and receivership
proceeding, the same being styled ``Bert E. Holland and others
against Whitehall Building and Operating Company and others''
(Number 678-M-Eq.). On or about May 15, 1930, the said Judge Ritter
allowed the said Rankin an advance of $2,500 on his fee for his
services in said case. On or about July 2, 1930, the said Judge
Ritter by letter requested another judge of the United States
district court for the southern district of Florida, to wit,
Honorable Alexander Akerman, to fix and deter
[[Page 1962]]
mine the total allowance for the said Rankin for his services in
said case for the reason as stated by Judge Ritter in said letter,
that the said Rankin had formerly been the law partner of the said
Judge Ritter, and he did not feel that he should pass upon the
total allowance made said Rankin in that case and that if Judge
Akerman would fix the allowance it would relieve the writer, Judge
Ritter, from any embarrassment if thereafter any question should
arise as to his, Judge Ritter's, favoring said Rankin with an
exorbitant fee.
Thereafterward, notwithstanding the said Judge Akerman, in
compliance with Judge Ritter's request, allowed the said Rankin a
fee of $15,000 for his services in said case, from which sum the
said $2,500 theretofore allowed the said Rankin by Judge Ritter as
an advance on his fee was deducted, the said Judge Ritter, well
knowing that at his request compensation had been fixed by Judge
Akerman for the said Rankin's services in said case, and
notwithstanding the restraint of propriety expressed in his said
letter to Judge Akerman, and ignoring the danger of embarrassment
mentioned in said letter, did fix an additional and exorbitant fee
for the said Rankin in said case. On or about December 24, 1930,
when the final decree in said case was signed, the said Judge
Ritter allowed the said Rankin, additional to the total allowance
of $15,000 theretofore allowed by Judge Akerman, a fee of $75,000
for his services in said case, out of which allowance the said
Judge Ritter directly profited. On the same day, December 24, 1930,
the receiver in said case paid the said Rankin, as part of his said
additional fee, the sum of $25,000, and the said Rankin on the same
day privately paid and delivered to the said Judge Ritter the sum
of $2,500 in cash; $2,000 of said $2,500 was deposited in bank by
Judge Ritter on, to wit, December 29, 1930, the remaining $500
being kept by Judge Ritter and not deposited in bank until, to wit,
July 10, 1931. Between the time of such initial payment on said
additional fee and April 6, 1931, the said receiver paid said
Rankin thereon $5,000. On or about April 6, 1931, the said Rankin
received the balance of the said additional fee allowed him by
Judge Ritter, said balance amounting to $45,000. Shortly
thereafter, on or about April 14, 1931, the said Rankin paid and
delivered to the said Judge Ritter, privately, in cash, an
additional sum of $2,000. The said Judge Halsted L. Ritter
corruptly and unlawfully accepted and received for his own use and
benefit from the said A. L. Rankin the aforesaid sums of money,
amounting to $4,500.
Wherefore, the said Judge Halsted L. Ritter was and is guilty
of misbehavior and was and is guilty of a high crime and
misdemeanor.
Article II
That the said Halsted L. Ritter, while holding the office of
United States district judge for the southern district of Florida,
having been nominated by the President of the United States,
confirmed by the Senate of the United States, duly qualified and
commissioned, and while acting as a United States district judge
for the southern district of Florida, was and is guilty of
misbehavior and of high crimes and misdemeanors in office in manner
and form as follows, to wit:
On the 15th day of February 1929 the said Halsted L. Ritter,
having been
[[Page 1963]]
appointed as United States district judge for the southern district
of Florida, was duly qualified and commissioned to serve as such
during good behavior in office. Immediately prior thereto and for
several years the said Halsted L. Ritter had practiced law in said
district in partnership with one A. L. Rankin, which partnership
was dissolved upon the appointment of said Ritter as said United
States district judge.
On the 18th day of July 1928 one Walter S. Richardson was
elected trustee in bankruptcy of the Whitehall Building and
Operating Company, which company had been adjudicated in said
district as a bankrupt, and as such trustee took charge of the
assets of said Whitehall Building and Operating Company, which
consisted of a hotel property located in Palm Beach in said
district. That the said Richardson as such trustee operated said
hotel property from the time of his said appointment until its
sales on the 3d of January 1929, under the foreclosure of a third
mortgage thereon. On the 1st of November and the 13th of December
1929, the said Judge Ritter made orders in said bankruptcy
proceedings allowing the said Walter S. Richardson as trustee the
sum of $16,500 as compensation for his services as trustee. That
before the discharge of said Walter S. Richardson as such trustee,
said Richardson, together with said A. L. Rankin, one Ernest
Metcalf, one Martin Sweeney, and the said Halsted L. Ritter,
entered into an arrangement to secure permission of the holder or
holders of at least $50,000 of first mortgage bonds on said hotel
property for the purpose of filing a bill to foreclose the first
mortgage on said premises in the court of said Halsted L. Ritter,
by which means the said Richardson, Rankin, Metcalf, Sweeney, and
Ritter were to continue said property in litigation before said
Ritter. On the 30th day of August 1929, the said Walter S.
Richardson, in furtherance of said arrangement and understanding,
wrote a letter to the said Martin Sweeney, in New York, suggesting
the desirability of contacting as many first-mortgage bondholders
as possible in order that their cooperation might be secured,
directing special attention to Mr. Bert E. Holland, an attorney,
whose address was in the Tremont Building in Boston, and who, as
cotrustee, was the holder of $50,000 of first-mortgage bonds, the
amount of bonds required to institute the contemplated proceedings
in Judge Ritter's court.
On October 3, 1929, the said Bert E. Holland, being solicited
by the said Sweeney, requested the said Rankin and Metcalf to
prepare a complaint to file in said Judge Ritter's court for
foreclosure of said first mortgage and the appointment of a
receiver. At this time Judge Ritter was holding court in Brooklyn,
New York, and the said Rankin and Richardson went from West Palm
Beach, Florida, to Brooklyn, New York, and called upon said Judge
Ritter a short time previous to filing the bill for foreclosure and
appointment of a receiver of said hotel property.
On October 10, 1929, and before the filing of said bill for
foreclosure and receiver, the said Holland withdrew his authority
to said Rankin and Metcalf to file said bill and notified the said
Rankin not to file the said bill. Notwithstanding the said
instructions to
[[Page 1964]]
said Rankin not to file said bill, said Rankin, on the 11th day of
October 1929, filed said bill with the clerk of the United States
District Court for the Southern District of Florida but with the
specific request to said clerk to lock up the said bill as soon as
it was filed and hold until Judge Ritter's return so that there
would be no newspaper publicity before the matter was heard by
Judge Ritter for the appointment of a receiver, which request on
the part of the said Rankin was complied with by the said clerk.
On October 16, 1929, the said Holland telegraphed to the said
Rankin, referring to his previous wire requesting him to refrain
from filing the bill and insisting that the matter remain in its
then status until further instruction was given; and on October 17,
1929, the said Rankin wired to Holland that he would not make an
application on his behalf for the appointment of a receiver. On
October 28, 1929, a hearing on the complaint and petition for
receivership was heard before Judge Halsted L. Ritter at Miami, at
which hearing the said Bert E. Holland appeared in person before
said Judge Ritter and advised the judge that he wished to withdraw
the suit and asked for dismissal of the bill of complaint on the
ground that the bill was filed without his authority.
But the said Judge Ritter, fully advised of the facts and
circumstances herein before recited, wrongfully and oppressively
exercised the powers of his office to carry into execution said
plan and agreement theretofore arrived at, and refused to grant the
request of the said Holland and made effective the champertous
undertaking of the said Richardson and Rankin and appointed the
said Richardson receiver of the said hotel property,
notwithstanding that objection was made to Judge Ritter that said
Richardson had been active in fomenting this litigation and was not
a proper person to act as receiver.
On October 15, 1929, said Rankin made oath to each of the bills
for intervenors which were filed the next day.
On October 16, 1929, bills for intervention in said foreclosure
suit were filed by said Rankin and Metcalf in the names of holders
of approximately $5,000 of said first-mortgage bonds, which
intervenors did not possess the said requisite $50,000 in bonds
required by said first mortgage to bring foreclosure proceedings on
the part of the bondholders.
The said Rankin and Metcalf appeared as attorneys for
complainants and intervenors, and in response to a suggestion of
the said Judge Ritter, the said Metcalf withdrew as attorney for
complainants and intervenors and said Judge Ritter thereupon
appointed said Metcalf as attorney for the said Richardson, the
receiver.
And in the further carrying out of said arrangement and
understanding, the said Richardson employed the said Martin Sweeney
and one Bemis, together with Ed Sweeney, as managers of said
property, for which they were paid the sum of $60,000 for the
management of said hotel for the two seasons the property remained
in the custody of said Richardson as receiver.
On or about the 15th day of May 1930 the said Judge Ritter
allowed the said Rankin an advance on his fee of $2,500 for his
services in said case.
On or about July 2, 1930, the said Judge Ritter requested Judge
Alex
[[Page 1965]]
ander Akerman, also a judge of the United States District Court for
the Southern District of Florida, to fix the total allowance for
the said Rankin for his services in said case, said request and the
reasons therefor being set forth in a letter by the said Judge
Ritter, in words and figures as follows, to wit:
July 2, 1930.
Hon. Alexander Akerman,
United States District Judge, Tampa, Fla.
My Dear Judge: In the case of Holland et al. v. Whitehall
Building & Operating Co. (No. 678-M-Eq.), pending in my division,
my former law partner, Judge A. L. Rankin, of West Palm Beach, has
filed a petition for an order allowing compensation for his
services on behalf of the plaintiff.
I do not feel that I should pass, under the circumstances, upon
the total allowance to be made Judge Rankin in this matter. I did
issue an order, which Judge Rankin will exhibit to you, approving
an advance of $2,500 on his claim, which was approved by all
attorneys.
You will appreciate my position in the matter, and I request
you to pass upon the total allowance which should be made Judge
Rankin in the premises as an accommodation to me. This will relieve
me from any embarrassment hereafter if the question should arise as
to my favoring Judge Rankin in this matter by an exorbitant
allowance.
Appreciating very much your kindness in this matter, I am,
Yours sincerely,
Halsted L. Ritter.
In compliance with said request the said Judge Akerman allowed
the said Rankin $12,500 in addition to the $2,500 theretofore
allowed by Judge Ritter, making a total of $15,000 as the fee of
the said Rankin in the said case.
But notwithstanding the said request on the part of said Ritter
and the compliance by the said Judge Akerman and the reasons for
the making of said request by said Judge Ritter of Judge Akerman,
the said Judge Ritter, on the 24th day of December 1930, allowed
the said Rankin an additional fee of $75,000.
And on the same date when the receiver in said case paid to the
said Rankin as a part of said additional fee the sum of $25,000,
said Rankin privately paid and delivered to said Judge Ritter out
of the said $25,000 the sum of $2,500 in cash, $2,000 of which the
said Judge Ritter deposited in a bank and $500 of which was put in
a tin box and not deposited until the 10th day of July 1931, when
it was deposited in a bank with an additional sum of $600.
On or about the 6th day of April 1931, the said Rankin received
as a part of the $75,000 additional fee the sum of $45,000, and
shortly thereafter, on or before the 14th day of April 1931, the
said Rankin paid and delivered to said judge Ritter, privately and
in cash, out of said $45,000 the sum of $2,000.
The said Judge Halsted L. Ritter corruptly and unlawfully
accepted and received for his own use and benefit from the said
Rankin the aforesaid sums of $2,500 in cash and $2,000 in cash,
amounting in all to $4,500.
Of the total allowance made to said A.L. Rankin in said
foreclosure suit, amounting in all to $90,000, the fol
[[Page 1966]]
lowing sums were paid out by said Rankin with the knowledge and
consent of said Judge Ritter, to wit: to said Walter S. Richardson,
the sum of $5,000; to said Metcalf, the sum of $10,000; to Shutts
and Bowen, also attorneys for the receiver, the sum of $25,000; and
to said Halsted L. Ritter, the sum of $4,500.
In addition to the said sum of $5,000 received by the said
Richardson as aforesaid, said Ritter by order in said proceedings
allowed said Richardson a fee of $30,000 for services as such
receiver.
The said fees allowed by said Judge Ritter to A.L. Rankin (who
had been a law partner of said judge immediately before said
judge's appointment as judge) as solicitor for the plaintiff in
said case were excessive and unwarranted, and said judge profited
personally thereby in that out of the money so allowed said
solicitor he received personally, privately, and in cash $4,500 for
his own use and benefit.
While the Whitehall Hotel was being operated in receivership
under said proceeding pending in said court (and in which
proceeding the receiver in charge of said hotel by appointment of
said Judge was allowed large compensation by said judge) the said
judge stayed at said hotel from time to time without cost to
himself and received free rooms, free meals, and free valet
service, and, with the knowledge and consent of said judge, members
of his family, including his wife, his son, Thurston Ritter, his
daughter, Mrs. M.R. Walker, his secretary, Mrs. Lloyd C. Hooks, and
her husband, Lloyd C. Hooks, each likewise on various occasions
stayed at said hotel without cost to themselves or to said judge,
and received free rooms, and some or all of them received from said
hotel free meals and free valet service; all of which expenses were
borne by the said receivership to the loss and damage of the
creditors whose interests were involved therein.
The said judge willfully failed and neglected to perform his
duty to conserve the assets of the Whitehall Building and Operating
Company in receivership in his court, but to the contrary,
permitted waste and dissipation of its assets, to the loss and
damage of the creditors of said corporation, and was a party to the
waste and dissipation of such assets while under the control of his
said court, and personally profited thereby, in the manner and form
hereinabove specifically set out.
Wherefore, the said Judge Halsted L. Ritter was and is guilty
of misbehavior, and was and is guilty of a high crime and
misdemeanor in office.
Articles III and IV in House Resolution 422 are omitted because
House Resolution 471, adopted by the House on Mar. 30, 1936, amended
Article III, added new Articles IV through VI after Article III, and
amended former Article IV to read as new Article VII. Articles III
through VII in their amended form follow:
Article III
That the said Halsted L. Ritter, having been nominated by the
President of the United States, confirmed by the Senate of the
United States, duly qualified and commissioned, and, while
[[Page 1967]]
acting as a United States District judge for the southern district
of Florida, was and is guilty of a high crime and misdemeanor in
office in manner and form as follows, to wit:
That the said Halsted L. Ritter, while such judge, was guilty
of a violation of section 258 of the Judicial Code of the United
States of America (U.S.C., Annotated, title 28, sec. 373) making it
unlawful for any judge appointed under the authority of the United
States to exercise the profession or employment of counsel or
attorney, or to be engaged in the practice of the law, in that
after the employment of the law firm of Ritter and Rankin (which at
the time of the appointment of Halsted L. Ritter to be judge of the
United States District Court for the Southern District of Florida,
was composed of Halsted L. Ritter and A.L. Rankin) in the case of
Trust Company of Georgia and Robert G. Stephens, trustee, against
Brazilian Court Building Corporation, and others, numbered 5704, in
the Circuit Court of the Fifteenth Judicial Circuit of Florida, and
after the fee of $4,000 which had been agreed upon at the outset of
said employment had been fully paid to the firm of Ritter and
Rankin, and after Halsted L. Ritter had, on, to wit, February 15,
1929, become judge of the United States District Court for the
Southern District of Florida, Judge Ritter on, to wit, March 11,
1929, wrote a letter to Charles A. Brodek, of counsel for Mulford
Realty Corporation (the client which his former law firm had been
representing in said litigation), stating that there had been much
extra and unanticipated work in the case, that he was then a
Federal Judge; that his partner, A.L. Rankin, would carry through
further proceedings in the case, but that he, Judge Ritter, would
be consulted about the matter until the case was all closed up; and
that ``this matter is one among very few which I am assuming to
continue my interest in until finally closed up''; and stating
specifically in said letter:
``I do not know whether any appeal will be taken in the case or
not but, if so, we hope to get Mr. Howard Paschal or some other
person as receiver who will be amenable to our directions, and the
hotel can be operated at a profit, of course, pending the appeal.
We shall demand a very heavy supersedeas bond, which I doubt
whether D'Esterre can give''; and further that he was ``of course
primarily interested in getting some money in the case'', and that
he thought ``$2,000 more by way of attorneys' fees should be
allowed'', and asked that he be communicated with direct about the
matter, giving his post-office-box number. On to wit, March 13,
1929, said Brodek replied favorably, and on March 30, 1929, a check
of Brodek, Raphael, and Eisner, a law firm of New York City,
representing Mulford Realty Corporation, in which Charles A.
Brodek, senior member of the firm of Brodek, Raphael and Eisner,
was one of the directors, was drawn, payable to the order of
``Honorable Halsted L. Ritter'' for $2,000 and which was duly
endorsed ``Honorable Halsted L. Ritter. H. L. Ritter'' and was paid
on, to wit, April 4, 1929, and the proceeds thereof were received
and appropriated by Judge Ritter to his own individual use and
benefit, without advising his said former partner that said $2,000
had been received, without consulting with
[[Page 1968]]
his former partner thereabout, and without the knowledge or consent
of his said former partner, appropriated the entire amount thus
solicited and received to the use and benefit of himself, the said
Judge Ritter.
At the time said letter was written by Judge Ritter and said
$2,000 received by him, Mulford Realty Corporation held and owned
large interests in Florida real estate and citrus groves, and a
large amount of securities of the Olympia Improvement Corporation,
which was a company organized to develop and promote Olympia,
Florida, said holdings being within the territorial jurisdiction of
the United States District Court, of which Judge Ritter was a judge
from, to wit, February 15, 1929.
After writing said letter of March 11, 1929, Judge Ritter
further exercised the profession or employment of counsel or
attorney, or engaged in the practice of the law, with relation to
said case.
Which acts of said judge were calculated to bring his office
into disrepute, constitute a violation of section 258 of the
Judicial Code of the United States of America (U.S.C., Annotated,
title 28, sec. 373), and constitute a high crime and misdemeanor
within the meaning and intent of section 4 of article II of the
Constitution of the United States.
Wherefore, the said Judge Halsted L. Ritter was and is guilty
of a high misdemeanor in office.
Article IV
That the said Halsted L. Ritter, having been nominated by the
President of the United States, confirmed by the Senate of the
United States, duly qualified and commissioned, and, while acting
as a United States district judge for the southern district of
Florida, was and is guilty of a high crime and misdemeanor in
office in manner and form as follows to wit:
That the said Halsted L. Ritter, while such judge, was guilty
of a violation of section 258 of the Judicial Code of the United
States of America (U.S.C., Annotated, title 28, sec. 373), making
it unlawful for any judge appointed under the authority of the
United States to exercise the profession or employment of counsel
or attorney, or to be engaged in the practice of the law, in that
Judge Ritter did exercise the profession or employment of counsel
or attorney, or engage in the practice of the law, representing
J.R. Francis, with relation to the Boca Raton matter and the
segregation and saving of the interest of J.R. Francis herein, or
in obtaining a deed or deeds to J.R. Francis from the Spanish River
Land Company to certain pieces of realty, and in the Edgewater
Ocean Beach Development Company matter for which services the said
Judge Ritter received from the said J.R. Francis the sum of $7,500.
Which acts of said judge were calculated to bring his office
into disrepute constitute a violation of the law above recited, and
constitute a high crime and misdemeanor within the meaning and
intent of section 4 of article II of the Constitution of the United
States.
Wherefore, the said Judge Halsted L. Ritter was and is guilty
of a high misdemeanor in office.
Article V
That the said Halsted L. Ritter, having been nominated by the
President of
[[Page 1969]]
the United States, confirmed by the Senate of the United States,
duly qualified and commissioned, and, while acting as a United
States district judge for the southern district of Florida, was and
is guilty of a high crime and misdemeanor in office in manner and
form as follows, to wit:
That the said Halsted L. Ritter, while such judge, was guilty
of violation of section 146(h) of the Revenue Act of 1928, making
it unlawful for any person willfully to attempt in any manner to
evade or defend the payment of the income tax levied in and by said
Revenue Act of 1928, in that during the year 1929 said Judge Ritter
received gross taxable income--over and above his salary as judge--
to the amount of some $12,000, yet paid no income tax thereon.
Among the fees included in said gross taxable income for 1929
were the extra fee of $2,000 collected and received by Judge Ritter
in the Brazilian Court case as described in article III, and the
fee of $7,500 received by Judge Ritter from J.R. Francis.
Wherefore the said Judge Halsted L. Ritter was and is guilty of
a high misdemeanor in office.
Article VI
That the said Halsted L. Ritter, having been nominated by the
President of the United States, confirmed by the Senate of the
United States, duly qualified and commissioned, and, while acting
as a United States district judge for the southern district of
Florida, was and is guilty of a high crime and misdemeanor in
office in manner and form as follows, to wit:
That the said Halsted L. Ritter, while such judge, was guilty
of violation of section 146(b) of the Revenue Act of 1928, making
it unlawful for any person willfully to attempt in any manner to
evade or defeat the payment of the income tax levied in and by said
Revenue Act of 1928, in that during the year 1930 the said Judge
Ritter received gross taxable income--over and above his salary as
judge--to the amount of to wit, $5,300, yet failed to report any
part thereof in his income-tax return for the year 1930 and paid no
income tax thereon.
Two thousand five hundred dollars of said gross taxable income
for 1930 was that amount of cash paid Judge Ritter by A. L. Rankin
on December 24, 1930, as described in article I.
Wherefore the said Judge Halsted L. Ritter was and is guilty of
a high misdemeanor in office.
Article VII
That the said Halsted L. Ritter, while holding the office of
United States district judge for the southern district of Florida,
having been nominated by the President of the United States,
confirmed by the Senate of the United States, duly qualified and
commissioned, and, while acting as a United States district judge
for the southern district of Florida, was and is guilty of
misbehavior and of high crimes and misdemeanors in office in manner
and form as follows, to wit:
The reasonable and probable consequence of the actions or
conduct of Halsted L. Ritter, hereunder specified or indicated in
this article, since he became judge of said court, as an individual
or as such judge, is to bring his court into scandal and disrepute,
to the prejudice of said court and public con
[[Page 1970]]
fidence in the administration of justice therein, and to the
prejudice of public respect for and confidence in the Federal
judiciary, and to render him unfit to continue to serve as such
judge:
1. In that in the Florida Power Company case (Florida Power and
Light Company against City of Miami and others, numbered 1138-M-
Eq.) which was a case wherein said judge had granted the
complainant power company a temporary injunction restraining the
enforcement of an ordinance of the city of Miami, which ordinance
prescribed a reduction in the rates for electric current being
charged in said city, said judge improperly appointed one Cary T.
Hutchinson, who had long been associated with and employed by power
and utility interests, special master in chancery in said suit, and
refused to revoke his order so appointing said Hutchinson.
Thereafter, when criticism of such action had become current in the
city of Miami, and within two weeks after a resolution (H. Res.
163, Seventy-third Congress) had been agreed to in the House of
Representatives of the Congress of the United States, authorizing
and directing the Judicial Committee thereof to investigate the
official conduct of said judge and to make a report concerning said
conduct to said House of Representatives an arrangement was entered
into with the city commissioners of the city of Miami or with the
city attorney of said city by which the said city commissioners
were to pass a resolution expressing faith and confidence in the
integrity of said judge, and the said judge recuse himself as judge
in said Dower suit. The said agreement was carried out by the
parties thereto, and said judge, after the passage of such
resolution, recused himself from sitting as judge in said power
suit, thereby bartering his judicial authority in said case for a
vote of confidence. Nevertheless, the succeeding judge allowed said
Hutchinson as special master in chancery in said case a fee of
$5,000, although he performed little, if any, service as such, and
in the order making such allowance recited: ``And it appearing to
the court that a minimum fee of $5,000 was approved by the court
for the said Cary T. Hutchinson, special master in this cause.''
2. In that in the Trust Company of Florida cases (Illick
against Trust Company of Florida and others numbered 1043-M-Eq.,
and Edmunds Committee and others against Marion Mortgage Company
and others, numbered 1124-M-Eq.) after the State banking department
of Florida, through its comptroller, Honorable Ernest Amos, had
closed the doors of the Trust Company of Florida and appointed J.H.
Therrell liquidator for said trust company, and had intervened in
the said Illick case, said Judge Ritter wrongfully and erroneously
refused to recognize the right of said State authority to
administer the affairs of the said trust company and appointed
Julian E. Eaton and Clark D. Stearns as receivers of the property
of said trust company. On appeal, the United States Circuit Court
of Appeals for the Fifth Circuit reversed the said order or decree
of Judge Ritter and ordered the said property surrendered to the
State liquidator. Thereafter, on, to wit, September 12, 1932, there
was filed in the United States District Court for the Southern
District of Florida the Edmunds Committee case, supra. Mar
[[Page 1971]]
ion Mortgage Company was a subsidiary of the Trust Company of
Florida. Judge Ritter being absent from his district at the time of
the filing of said case, an application for the appointment of
receivers therein was presented to another judge of said district,
namely, Honorable Alexander Akerman. Judge Ritter, however, prior
to the appointment of such receivers, telegraphed Judge Akerman,
requesting him to appoint the aforesaid Eaton and Stearns as
receivers in said case, which appointments were made by Judge
Akerman. Thereafter the United States Circuit Court of Appeals for
the Fifth Circuit reversed the order of Judge Akerman, appointing
said Eaton and Stearns as receivers in said case. In November 1932,
J.H. Therrell, as liquidator, filed a bill of complaint in the
Circuit Court of Dade County, Florida--a court of the State of
Florida--alleging that the various trust properties of the Trust
Company of Florida were burdensome to the liquidator to keep, and
asking that the court appoint a succeeding trustee. Upon petition
for removal of said cause from said State court into the United
States District Court for the Southern District of Florida, Judge
Ritter took jurisdiction, notwithstanding the previous rulings of
the United States Circuit Court of Appeals above referred to, and
again appointed the said Eaton and Stearns as the receivers of the
said trust properties. In December 1932 the said Therrell
surrendered all of the trust properties to said Eaton and Stearns
as receivers, together with all records of the Trust Company of
Florida pertaining thereto. During the time said Eaton and Stearns,
as such receivers, were in control of said trust properties, Judge
Ritter wrongfully and improperly approved their accounts without
notice or opportunity for objection thereto to be heard.
With the knowledge of Judge Ritter, said receivers appointed
the sister-in-law of Judge Ritter, namely, Mrs. G.M. Wickard, who
had had no previous hotel-management experience, to be manager of
the Julia Tuttle Hotel and Apartment Building, one of said trust
properties. On, to wit, January 1, 1933, Honorable J.M. Lee
succeeded Honorable Ernest Amos as comptroller of the State of
Florida and appointed M.A. Smith liquidator in said Trust Company
of Florida cases to succeed J.H. Therrell. An appeal was again
taken to the United States Circuit Court of Appeals for the Fifth
Circuit from the then latest order or decree of Judge Ritter, and
again the order or decree of Judge Ritter appealed from was
reversed by the said circuit court of appeals which held that the
State officer was entitled to the custody of the property involved
and that said Eaton and Stearns as receivers were not entitled to
such custody. Thereafter, and with the knowledge of the decision of
the said circuit court of appeals, Judge Ritter wrongfully and
improperly allowed said Eaton and Stearns and their attorneys some
$26,000 as fees out of said trust-estate properties and endeavored
to require, as a condition precedent to releasing said trust
properties from the control of his court, a promise from counsel
for the said State liquidator not to appeal from his order allowing
the said fees to said Eaton and Stearns and their attorneys.
3. In that the said Halsted L. Ritter, while such Federal
judge, accepted, in addition to $4,500 from his former law
[[Page 1972]]
partner as alleged in article I hereof other large fees or
gratuities, to wit, $7,500 from J.R. Francis, on or about April 19,
1929, J.R. Francis at this time having large property interests
within the territorial jurisdiction of the court of which Judge
Ritter was a judge; and on, to wit, the 4th day of April 1929 the
said Judge Ritter accepted the sum of $2,000 from Brodek, Raphael
and Eisner, representing Mulford Realty Corporation, as its
attorneys, through Charles A. Brodek, senior member of said firm
and a director of said corporation, as a fee or gratuity, at which
time the said Mulford Realty Corporation held and owned large
interests in Florida real estate and citrus groves, and a large
amount of securities of the Olympia Improvement Corporation, which
was a company organized to develop and promote Olympia, Florida,
said holding being within the territorial jurisdiction of the
United States District Court of which Judge Ritter was a judge
from, to wit, February 15, 1929.
4. By his conduct as detailed in articles I, II, III, and IV
hereof, and by his income-tax evasions as set forth in articles V
and VI hereof.
Wherefore, the said Judge Halsted L. Ritter was and is guilty
of misbehavior, and was and is guilty of high crimes and
misdemeanors in office.
Cumulative and Duplicatory Articles of Impeachment
Sec. 3.3 Majority views and minority views were included in the report
of the Committee on the Judiciary recommending the impeachment of
President Richard M. Nixon, such views relating to Article II,
containing an accumulation of acts constituting a course of
conduct.
On Aug. 20, 1974, the Committee on the Judiciary recommended in its
final report to the House, pursuant to its inquiry into charges of
impeachable offenses against President Nixon, three articles of
impeachment. Article II charged that the President had ``repeatedly
engaged in conduct'' violative of his Presidential oath and of his
constitutional duty to take care that the laws be faithfully executed.
The article set forth, in five separate paragraphs, five patterns of
conduct constituting the offenses charged.
The conclusion of the committee's report on Article II read in part
as follows:
In recommending Article II to the House, the Committee finds
clear and convincing evidence that Richard M. Nixon, contrary to
his trust as President and unmindful of the solemn duties of his
high office, has repeatedly used his power as President to violate
the Constitution and the law of the land.
In so doing, he has failed in the obligation that every citizen
has to live under the law. But he has done more, for it 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
[[Page 1973]]
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 in disregard of
the fundamental principle of the rule of law in our system of
government. This abuse of the powers of the President was carried
out by Richard M. Nixon, acting personally and through his
subordinates, for his own political advantage, not for any
legitimate governmental purpose and without due consideration for
the national good. . . .
The Committee has concluded that, to perform its constitutional
duty, it must approve this Article of Impeachment and recommend it
to the House. If we had been unwilling to carry out the principle
that all those who govern, including ourselves, are accountable to
the law and the Constitution, we would have failed in our
responsibility as representatives of the people elected under the
Constitution. If we had not been prepared to apply the principle of
Presidential accountability embodied in the impeachment clause of
the Constitution, but had instead condoned the conduct of Richard
M. Nixon, then another President, perhaps with a different
political philosophy, might have used this illegitimate power for
further encroachments on the rights of citizens and further
usurpations of the power of other branches of our government. By
adopting this Article, the Committee seeks to prevent the
recurrence of any such abuse of Presidential power.
The Committee finds that, in the performance of his duties as
President, Richard M. Nixon on many occasions has acted to the
detriment of justice, right, and the public good, in violation of
his constitutional duty to see to the faithful execution of the
laws. This conduct has demonstrated a contempt for the rule of law;
it has posed a threat to our democratic republic. The Committee
finds that this conduct constitutes ``high crimes and
misdemeanors'' within the meaning of the Constitution, that it
warrants his impeachment by the House, and that it requires that he
be put to trial in the Senate.(11)
---------------------------------------------------------------------------
11. H. Rept. No. 93-1305, at pp. 180-183, Committee on the Judiciary,
printed in the Record at 120 Cong. Rec. 29270, 29271, 93d Cong.
2d Sess., Aug. 20, 1974. For complete text of H. Rept. No. 93-
1305, see id. at pp. 29219-361.
---------------------------------------------------------------------------
Opposing minority views were included in the report on the
``duplicity'' of offenses charged in Article II. The views (footnotes
omitted) below are those of Messrs. Hutchinson, Smith, Sandman,
Wiggins, Dennis, Mayne, Lott, Moorhead, Maraziti, and Latta:
Our opposition to the adoption of Article II should not be
misunderstood as condonation of the presidential conduct alleged
therein. On the contrary, we
[[Page 1974]]
deplore in strongest terms the aspects of presidential wrongdoing
to which the Article is addressed. However, we could not in
conscience recommend that the House impeach and the Senate try the
President on the basis of Article II in its form as proposed,
because in our view the Article is duplicitous in both the ordinary
and the legal senses of the word. In common usage, duplicity means
belying one's true intentions by deceptive words; as a legal term
of art, duplicity denotes the technical fault of uniting two or
more offenses in the same count of an indictment. We submit that
the implications of a vote for or against Article II are ambiguous
and that the Committee debate did not resolve the ambiguities so as
to enable the Members to vote intelligently. Indeed, this defect is
symptomatic of a generic problem inherent in the process of
drafting Articles of impeachment, and its significance for
posterity may be far greater than the substantive merits of the
particular charges embodied in Article II. . . .
We do not take the position that the grouping of charges in a
single Article is necessarily always invalid. To the contrary, it
would make good sense if the alleged offenses together comprised a
common scheme or plan, or even if they were united by a specific
legal theory. Indeed, even if there were no logical reason at all
for so grouping the charges (as is true of Article II), the Article
might still be acceptable if its ambiguous aspects had been
satisfactorily resolved. For the chief vice of this Article is that
it is unclear from its language whether a Member should vote for
its adoption if he believes any one of the five charges to be
supported by the evidence; or whether he must believe in the
sufficiency of all five; or whether it is enough if he believes in
the sufficiency of more than half of the charges. The only clue is
the sentence which states, ``This conduct has included one or more
of the following [five specifications]''. This sentence implies
that a Member may--indeed, must--vote to impeach or to convict if
he believes in the sufficiency of a single specification, even
though he believes that the accusations made under the other four
specifications have not been proved, or do not even constitute
grounds for impeachment. Thus Article II would have unfairly
accumulated all guilty votes against the President, on whatever
charge. The President could have been removed from office even
though no more than fourteen Senators believed him guilty of the
acts charged in any one of the five specifications.
Nor could the President have defended himself against the
ambiguous charges embodied in Article II. Inasmuch as five
specifications are included in support of three legal theories, and
all eight elements are phrased in the alternative, Article II
actually contains no fewer than fifteen separate counts, any one of
which might be deemed to constitute grounds for impeachment and
removal. In addition, if the President were not informed which
matters included in Article II were thought to constitute ``high
Crimes and Misdemeanors,'' he would have been deprived of his right
under the Sixth Amendment to ``be informed of the nature and cause
of the accusation'' against him.
This defect of Article II calls to mind the impeachment trial
of Judge Halsted Ritter in 1936. Ritter was nar
[[Page 1975]]
rowly acquitted of specific charges of bribery and related offenses
set forth in the first six Articles. He was convicted by an exact
two-thirds majority, however, under Article VII. That Article
charged that because of the specific offenses embodied in the other
six Articles, Ritter had ``[brought] his court into scandal and
disrepute, to the prejudice of said court and public confidence in
the administration of justice. . . .'' The propriety of convicting
him on the basis of this vague charge, after he had been acquitted
on all of the specific charges, will long be debated. Suffice it to
say that the putative defect of Article VII is entirely different
from that of Article II in the present case, and the two should not
be confused.
A more relevant precedent may be found in the House debates
during the impeachment of Judge Charles Swayne in 1905. In that
case the House had followed the earlier practice of voting first on
the general question of whether or not to impeach, and then
drafting the Articles. Swayne was impeached in December 1904, by a
vote of 198-61, on the basis of five instances of misconduct.
During January 1905 these five grounds for impeachment were
articulated in twelve Articles. In the course of debate prior to
the adoption of the Articles, it was discovered that although the
general proposition to impeach had commanded a majority, individual
Members had reached that conclusion for different reasons. This
gave rise to the embarrassing possibility that none of the Articles
would be able to command a majority vote. Representative Parker
regretted that the House had not voted on each charge separately
before voting on impeachment:
[W]here different crimes and misdemeanors were alleged it
was the duty of the House to have voted whether each class of
matter reported was impeachable before debating that resolution
of impeachment, and that the committee was entitled to the vote
of a majority on each branch, and that now for the first time
the real question of impeachment has come before this House to
be determined--not by five men on one charge, fifteen on
another, and twenty on another coming in generally and saying
that for one or another of the charges Judge Swayne should be
impeached, but on each particular branch of the case.
When we were asked to vote upon ten charges at once, that
there was something impeachable contained in one or another of
those charges we have already perhaps stultified ourselves in
the mode of our procedure. . . .
In order to extricate the House from its quandary,
Representative Powers urged that the earlier vote to impeach should
be construed to imply that a majority of the House felt that each
of the separate charges had been proved;
At that time the committee urged the impeachment upon five
grounds, and those are the only grounds which are covered by
the articles . . . and we had assumed that when the House voted
the impeachment they practically said that a probable cause was
made out in these five subject-matters which were discussed
before the House.
Powers' retrospective theory was ultimately vindicated when the
House approved all twelve Articles.
If the episode from the Swayne impeachment is accorded any
precedential value in the present controversy over Article II, it
might be argued by analogy that the Committee's vote to
[[Page 1976]]
adopt that Article must be construed to imply that a majority
believed that all five specifications had been proved. Because the
Committee did not vote separately on each specification, however,
it is impossible to know whether those Members who voted for
Article II would be willing to accept that construction. If so,
then one of our major objections to the Article would vanish.
However, it would still be necessary to amend the Article by
removing the sentence ``This has included one or more of the
following,'' and substituting language which would make it plain
that no Member of the House or Senate could vote for the Article
unless he was convinced of the independent sufficiency of each of
the five specifications.
However, there remains another and more subtle objection to the
lumping together of unrelated charges in Article II:
There is indeed always a danger when several crimes are
tied together, that the jury will use the evidence
cumulatively; that is, that although so much as would be
admissible upon any one of the charges might not have persuaded
them of the accused's guilt, the sum of it will convince them
as to all.
It is thus not enough protection for an accused that the Senate
may choose to vote separately upon each section of an omnibus
article of impeachment: the prejudicial effect of grouping a
diverse mass of factual material under one heading, some of it
adduced to prove one proposition and another to prove a proposition
entirely unrelated, would still remain.(12)
---------------------------------------------------------------------------
12. H. Rept. No. 93-1305, at pp. 427-431, Committee on the Judiciary,
printed in the Record at 120 Cong. Rec. 29332-34, 93d Cong. 2d
Sess., Aug. 20, 1974.
---------------------------------------------------------------------------
Sec. 3.4 The Senate, sitting as a Court of Impeachment, rejected a
motion to strike articles of impeachment on the ground that certain
articles were duplicatory and accumulative.
On Apr. 3, 1936,(13) Judge Halsted L. Ritter, respondent
in an impeachment trial, moved in the Senate to strike certain articles
on the grounds of duplication and accumulation of changes.
---------------------------------------------------------------------------
13. 80 Cong. Rec. 4898, 74th Cong. 2d Sess. The motion was submitted on
Mar. 31, 1936, 80 Cong. Rec. 4656, 4657, and reserved for
decision.
---------------------------------------------------------------------------
The motion as duly filed by counsel for the respondent is as
follows:
In the Senate of the United States of America sitting as a Court of
Impeachment. The United States of America v. Halsted L. Ritter,
respondent
Motion to Strike Article I, or, in the Alternative, to Require
Election as to Articles I and II; and Motion to Strike Article VII
The respondent, Halsted L. Ritter, moves the honorable Senate,
sitting as a Court of Impeachment, for an order striking and
dismissing article I of the articles of impeachment, or, in the
alternative, to require the honorable managers on the part of the
House of Representatives to elect as to whether they will proceed
upon article I or
[[Page 1977]]
upon article II, and for grounds of such motion respondent says:
1. Article II reiterates and embraces all the charges and
allegations of article I, and the respondent is thus and thereby
twice charged in separate articles with the same and identical
offense, and twice required to defend against the charge presented
in article I.
2. The presentation of the same and identical charge in the two
articles in question tends to prejudice the respondent in his
defense, and tends to oppress the respondent in that the articles
are so framed as to collect, or accumulate upon the second article,
the adverse votes, if any, upon the first article.
3. The Constitution of the United States contemplates but one
vote of the Senate upon the charge contained in each article of
impeachment, whereas articles I and II are constructed and arranged
in such form and manner as to require and exact of the Senate a
second vote upon the subject matter of article I.
Motion to Strike Article VII
And the respondent further moves the honorable Senate, sitting
as a Court of Impeachment, for an order striking and dismissing
article VII, and for grounds of such motion, respondent says:
1. Article VII includes and embraces all the charges set forth
in articles I, II, III, IV, V, and VI.
2. Article VII constitutes an accumulation and massing of all
charges in preceding articles upon which the Court is to pass
judgment prior to the vote on article VII, and the prosecution
should be required to abide by the judgment of the Senate rendered
upon such prior articles and the Senate ought not to countenance
the arrangement of pleading designed to procure a second vote and
the collection or accumulation of adverse votes, if any, upon such
matters.
3. The presentation in article VII of more than one subject and
the charges arising out of a single subject is unjust and
prejudicial to respondent.
4. In fairness and justice to respondent, the Court ought to
require separation and singleness of the subject matter of the
charges in separate and distinct articles, upon which a single and
final vote of the Senate upon each article and charge can be had.
Frank P. Walsh,
Carl T. Hoffman,
Of Counsel for Respondent.
Presiding Officer Nathan L. Bachman, of Tennessee, overruled that
part of the motion to strike relating to Articles I and II, finding
that those articles presented distinct and different bases for
impeachment. This ruling was sustained. With respect to the application
of the motion to Article VII, the Presiding Officer submitted the
question of duplication to the Court of Impeachment for a decision. The
motion to strike Article VII was overruled on a voice
vote.(14)
---------------------------------------------------------------------------
14. For a summary of the arguments by counsel on the motions, and
citations thereto, see Sec. 18.12, infra.
---------------------------------------------------------------------------
Sec. 3.5 During the Ritter impeachment trial in the Sen
[[Page 1978]]
ate, the President pro tempore overruled a point of order against a
vote of conviction on the seventh article, where the point of order
was based on an accumulation or combination of facts and
circumstances.
On Apr. 17, 1936, President pro tempore Key Pittman, of Nevada,
stated that the Senate had by a two-thirds vote adjudged the respondent
Judge Halsted L. Ritter guilty as charged in Article VII of the
articles of impeachment. He over-ruled a point of order against the
vote, as follows:
Mr. [Warren R.] Austin [of Vermont]: The first reason for the
point of order is that here is a combination of facts in the
indictment, the ingredients of which are the several articles which
precede article VII, as seen by paragraph marked 4 on page 36. The
second reason is contained in the Constitution of the United
States, which provides that no person shall be convicted without
the concurrence of two-thirds of the members present. The third
reason is that this matter has been passed upon judicially, and it
has been held that an attempt to convict upon a combination of
circumstances----
Mr. [George] McGill, [of Kansas]: Mr. President, a
parliamentary inquiry.
Mr. Austin: Of which the respondent has been found innocent
would be monstrous. I refer to the case of Andrews v. King (77
Maine, 235). . . .
The President Pro Tempore: A point of order is made as to
article VII, in which the respondent is charged with general
misbehavior. It is a separate charge from any other charge, and the
point of order is overruled.(15)
---------------------------------------------------------------------------
15. 80 Cong. Rec. 5606, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Use of Historical Precedents
Sec. 3.6 With respect to the conduct of President Richard Nixon, the
impeachment inquiry staff of the Committee on the Judiciary
reported to the committee on ``Constitutional Grounds for
Presidential Impeachment,'' which included references to the value
of historical precedents.
During an inquiry into impeachable offenses against President Nixon
in the 93d Congress by the Committee on the Judiciary, the committee's
impeachment inquiry staff reported to the committee on grounds for
impeachment of the President. The report discussed in detail the
historical bases and origins, in both English parliamentary practice
and in the practice of the U.S. Congress, of the impeachment power, and
drew conclusions as to the grounds for impeachment of the President and
of other federal civil officers from the history of impeachment
proceedings
[[Page 1979]]
and from the history of the U.S. Constitution.(1~6)
---------------------------------------------------------------------------
16. The report is printed in full in the appendix to this chapter,
infra. The staff report was printed as a committee print, and
the House authorized on June 6, 1974, the printing of 3,000
additional copies thereof. H. Res. 935, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
Grounds for Presidential Impeachment
Sec. 3.7 The Committee on the Judiciary concluded, in recommending
articles impeaching President Richard Nixon to the House, that the
President could be impeached not only for violations of federal
criminal statutes, but also for (1) serious abuse of the powers of
his office, and (2) refusal to comply with proper subpoenas of the
committee for evidence relevant to its impeachment inquiry.
In its final report to the House pursuant to its impeachment
inquiry into the conduct of President Nixon in the 93d Congress, the
Committee on the Judiciary set forth the following conclusions
(footnotes omitted) on the three articles of impeachment adopted by the
committee and included in its report:(17)
---------------------------------------------------------------------------
17. H. Rept. No. 93-1305, at pp. 133 et seq., Committee on the
Judiciary. See the articles and conclusions printed in the
Record in full at 120 Cong. Rec. 29219-79, 93d Cong. 2d Sess.,
Aug. 20, 1974.
---------------------------------------------------------------------------
[Article I]
conclusion
After the Committee on the Judiciary had debated whether or not
it should recommend Article I to the House of Representatives, 27
of the 38 Members of the Committee found that the evidence before
it could only lead to one conclusion; that Richard M. Nixon, using
the powers 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, on June 17, 1972, into the headquarters of the Democratic
National Committee; to cover up, conceal and protect those
responsible; and to conceal the existence and scope of other
unlawful covert activities.
This finding is the only one that can explain the President's
involvement in a pattern of undisputed acts that occurred after the
break-in and that cannot otherwise be rationally explained. . . .
President Nixon's course of conduct following the Watergate
break-in, as described in Article I, caused action not only by his
subordinates but by the agencies of the United States, including
the Department of Justice, the FBI, and the CIA. It required
perjury, destruction of evidence, obstruction of justice, all
crimes. But, most important, it required deliberate, contrived, and
continuing deception of the American people.
[[Page 1980]]
President Nixon's 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.
The Committee finds, based upon clear and convincing evidence,
that this conduct, detailed in the foregoing pages of this report,
constitutes ``high crimes and misdemeanors'' as that term is used
in Article II, Section 4 of the Constitution. Therefore, the
Committee recommends that the House of Representatives exercise its
constitutional power to impeach Richard M. Nixon.
On August 5, 1974, nine days after the Committee had voted on
Article I, President Nixon released to the public and submitted to
the Committee on the Judiciary three additional edited White House
transcripts of Presidential conversations that took place on June
23, 1972, six days following the DNC break-in. Judge Sirica had
that day released to the Special Prosecutor transcripts of those
conversations pursuant to the mandate of the United States Supreme
Court. The Committee had subpoenaed the tape recordings of those
conversations, but the President had refused to honor the subpoena.
These transcripts conclusively confirm the finding that the
Committee had already made, on the basis of clear and convincing
evidence, that from shortly after the break-in on June 17, 1972,
Richard M. Nixon, acting personally and through his subordinates
and agents, made it his plan to and did direct his subordinates to
engage in a course of conduct designed to delay, impede and
obstruct investigation of the unlawful entry of the headquarters of
the Democratic National Committee; to cover up, conceal and protect
those responsible; and to conceal the existence and scope of other
unlawful covert activities. . . .
[Article II]
conclusion
In recommending Article II to the House, the Committee finds
clear and convincing evidence that Richard M. Nixon, contrary to
his trust as President and unmindful of the solemn duties of his
high office, has repeatedly used his power as President to violate
the Constitution and the law of the land.
In so doing, he has failed in the obligation that every citizen
has to live under the law. But he has done more, for it is the duty
of the President not merely to live by that 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.
Article II, section 3 of the Constitution requires that the
President ``shall
[[Page 1981]]
take Care that the Laws be faithfully executed.'' Justice Felix
Frankfurter described this provision as ``the embracing function of
the President''; President Benjamin Harrison called it ``the
central idea of the office.'' ``[I]n a republic,'' Harrison wrote,
``the thing to be executed is the law, not the will of the ruler as
in despotic governments. The President cannot go beyond the law,
and he cannot stop short of it.''
The conduct of Richard M. Nixon has constituted a repeated and
continuing abuse of the powers of the Presidency in disregard of
the fundamental principle of the rule of law in our system of
government. This abuse of the powers of the President was carried
out by Richard M. Nixon, acting personally and through his
subordinates, for his own political advantage, not for any
legitimate governmental purpose and without due consideration for
the national good.
The rule of law needs no defense by the Committee. Reverence
for the laws, said Abraham Lincoln, should ``become the political
religion of the nation.'' Said Theodore Roosevelt, ``No man is
above the law and no man is below it; nor do we ask any man's
permission when we require him to obey it.''
It is a basic principle of our government that ``we submit
ourselves to rulers only if [they are] under rules.'' ``Decency,
security, and liberty alike demand that government officials shall
be subjected to the same rules of conduct that are commands to the
citizen,'' wrote Justice Louis Brandeis. The Supreme Court has
said:
No man in this country is so high that he is above the law.
No officer of the law may set that law at defiance with
impunity. All the officers of the government, from the highest
to the lowest, are creatures of the law, and are bound to obey
it.
It is the only supreme power in our system of government,
and every man who by accepting office participates in its
functions is only the more strongly bound to submit to that
supremacy, and to observe the limitations upon the exercise of
the authority which it gives.
Our nation owes its strength, its stability, and its endurance to
this principle.
In asserting the supremacy of the rule of law among the
principles of our government, the Committee is enunciating no new
standard of Presidential conduct. The possibility that Presidents
have violated this standard in the past does not diminish its
current--and future--applicability. Repeated abuse of power by one
who holds the highest public office requires prompt and decisive
remedial action, for it is in the nature of abuses of power that if
they go unchecked they will become overbearing, depriving the
people and their representatives of the strength of will or the
wherewithal to resist.
Our Constitution provides for a responsible Chief Executive,
accountable for his acts. The framers hoped, in the words of
Elbridge Gerry, that ``the maxim would never be adopted here that
the chief Magistrate could do no wrong.'' They provided for a
single executive because, as Alexander Hamilton wrote, ``the
executive power is more easily confined when it is one'' and
``there should be a single object for the . . . watchfulness of the
people.''
The President, said James Wilson, one of the principal authors
of the Con
[[Page 1982]]
stitution, ``is the dignified, but accountable magistrate of a free
and great people.'' Wilson said, ``The executive power is better to
be trusted when it has no screen. . . . [W]e have a responsibility
in the person of our President . . . he cannot roll upon any other
person the weight of his criminality. . . .'' As both Wilson and
Hamilton pointed out, the President should not be able to hide
behind his counsellors; he must ultimately be accountable for their
acts on his behalf. James Iredell of North Carolina, a leading
proponent of the proposed Constitution and later a Supreme Court
Justice, said that the President ``is of a very different nature
from a monarch. He is to be . . . personally responsible for any
abuse of the great trust reposed in him.''
In considering this Article the Committee has relied on
evidence of acts directly attributable to Richard M. Nixon himself.
He has repeatedly attempted to conceal his accountability for these
acts and attempted to deceive and mislead the American people about
his own responsibility. He governed behind closed doors, directing
the operation of the executive branch through close subordinates,
and sought to conceal his knowledge of what they did illegally on
his behalf. Although the Committee finds it unnecessary in this
case to take any position on whether the President should be held
accountable, through exercise of the power of impeachment, for the
actions of his immediate subordinates, undertaken on his behalf,
when his personal authorization and knowledge of them cannot be
proved, it is appropriate to call attention to the dangers inherent
in the performance of the highest public office in the land in air
of secrecy and concealment.
The abuse of a President's powers poses a serious threat to the
lawful and proper functioning of the government and the people's
confidence in it. For just such Presidential misconduct the
impeachment power was included in the Constitution. The impeachment
provision, wrote Justice Joseph Story in 1833, ``holds out a deep
and immediate responsibility, as a check upon arbitrary power; and
compels the chief magistrate, as well as the humblest citizen, to
bend to the majesty of the law.'' And Chancellor James Kent wrote
in 1826:
If . . . neither the sense of duty, the force of public
opinion, nor the transitory nature of the seat, are sufficient
to secure a faithful exercise of the executive trust, but the
President will use the authority of his station to violate the
Constitution or law of the land, the House of Representatives
can arrest him in his career, by resorting to the power of
impeachment.
The Committee has concluded that, to perform its constitutional
duty, it must approve this Article of Impeachment and recommend it
to the House. If we had been unwilling to carry out the principle
that all those who govern, including ourselves, are accountable to
the law and the Constitution, we would have failed in our
responsibility as representatives of the people, elected under the
Constitution. If we had not been prepared to apply the principle of
Presidential accountability embodied in the impeachment clause of
the Constitution, but had instead condoned the conduct of Richard
M. Nixon, then another President, perhaps with a different
political philos
[[Page 1983]]
ophy, might have used this illegitimate power for further
encroachments on the rights of citizens and further usurpations of
the power of other branches of our government. By adopting this
Article, the Committee seeks to prevent the recurrence of any such
abuse of Presidential power.
In recommending Article II to the House, the Committee finds
clear and convincing evidence that Richard M. Nixon has not
faithfully executed the executive trust, but has repeatedly used
his authority as President to violate the Constitution and the law
of the land. In so doing, he violated the obligation that every
citizen has to live under the law. But he did more, for it is the
duty of the President not merely to live by the law but to see that
law faithfully applied. Richard M. Nixon repeatedly and willfully
failed to perform that duty. He failed to perform it by authorizing
and directing actions that violated the rights of citizens and that
interfered with the functioning of executive agencies. And he
failed to perform it by condoning and ratifying, rather than acting
to stop, actions by his subordinates interfering with the
enforcement of the laws.
The Committee finds that, in the performance of his duties as
President, Richard M. Nixon on many occasions has acted to the
detriment of justice, right, and the public good, in violation of
his constitutional duty to see to the faithful execution of the
laws. This conduct has demonstrated a contempt for the rule of law;
it has posed a threat to our democratic republic. The Committee
finds that this conduct constitutes ``high crimes and
misdemeanors'' within the meaning of the Constitution, that it
warrants his impeachment by the House, and that it requires that he
be put to trial in the Senate. . . .
[Article III]
conclusion
The undisputed facts, historic precedent, and applicable legal
principles support the Committee's recommendation of Article III.
There can be no question that in refusing to comply with limited,
narrowly drawn subpoenas--issued only after the Committee was
satisfied that there was other evidence pointing to the existence
of impeachable offenses--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
obligated to supply the relevant evidence necessary for Congress to
exercise its constitutional responsibility in an impeachment
proceeding. If this were to occur, the impeachment power would be
drained of its vitality. Article III, therefore, seeks to preserve
the integrity of the impeachment process itself and the ability of
Congress to act as the ultimate safeguard against improper
presidential conduct.(18)
---------------------------------------------------------------------------
18. H. Rept. No. 93-1305, at p. 213, Committee on the Judiciary. See
120 Cong. Rec. 29279, 93d Cong. 2d Sess., Aug. 20, 1974.
See also, for the subpena power of a committee conducting
an impeachment investigation, Sec. 6, infra. The House has
declined to prosecute for contempt of Congress officers charged
with impeachable offenses and refusing to comply with subpenas
(see Sec. 6.12, infra).
---------------------------------------------------------------------------
[[Page 1984]]
Sec. 3.8 In the report of the Committee on the Judiciary recommending
the impeachment of President Richard Nixon, the minority took the
view that grounds for Presidential impeachment must be criminal
conduct or acts with criminal intent.
On Aug. 20, 1974, the Committee on the Judiciary submitted a report
recommending the impeachment of President Nixon. In the minority views
set out below (footnotes omitted), Messrs. Hutchinson, Smith, Sandman,
Wiggins, Dennis, Mayne, Lott, Moorhead, Maraziti, and Latta discussed
the grounds for presidential impeachment: (19)
---------------------------------------------------------------------------
19. H. Rept. No. 93-1305, at pp. 362372, Committee on the Judiciary,
printed at 120 Cong. Rec. 29312-15, 93d Cong. 2d Sess., Aug.
20, 1974.
---------------------------------------------------------------------------
B. Meaning of ``Treason, Bribery or other high Crimes and
Misdemeanors''
The Constitution of the United States provides that the
President ``shall be removed from Office on Impeachment for, and
Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors.'' Upon impeachment and conviction, removal of the
President from office is mandatory. The offenses for which a
President may be impeached are limited to those enumerated in the
Constitution, namely ``Treason, Bribery, or other high Crimes and
Misdemeanors.'' We do not believe that a President or any other
civil officer of the United States government may constitutionally
be impeached and convicted for errors in the administration of his
office.
1. adoption of ``treason, bribery, or other high crimes and
misdemeanors'' at constitutional convention
The original version of the impeachment clause at the
Constitutional Convention of 1787 had made ``malpractice or neglect
of duty'' the grounds for impeachment. On July 20, 1787, the
Framers debated whether to retain this clause, and decided to do
so.
Gouverneur Morris, who had moved to strike the impeachment
clause altogether, began by arguing that it was unnecessary because
the executive ``can do no criminal act without Coadjutors who may
be punished.'' George Mason disagreed, arguing that ``When great
crimes were committed he [favored] punishing the principal as well
as the Coadjutors.'' Fearing recourse to assassinations, Benjamin
Franklin favored impeachment ``to provide in the Constitution for
the regular punishment of the executive when his misconduct should
deserve it, and for his honorable acquittal when he should be
unjustly accused.'' Gouverneur Morris then admitted that
``corruption & some few other offenses'' should be impeachable, but
thought ``the case ought to be enumerated & defined.''
Rufus King, a co-sponsor of the motion to strike the
impeachment clause,
[[Page 1985]]
pointed out that the executive, unlike the judiciary, did not hold
his office during good behavior, but during a fixed, elective term;
and accordingly ought not to be impeachable, like the judiciary,
for ``misbehaviour:'' this would be ``destructive of his
independence and of the principles of the Constitution.'' Edmund
Randolph, however, made a strong statement in favor of retaining
the impeachment clause:
Guilt wherever found ought to be punished. The Executive will
have great opportunitys of abusing his power, particularly in time
of war when the military force, and in some respects the public
money will be in his hands.
. . . He is aware of the necessity of proceeding with a
cautious hand, and of excluding as much as possible the
influence of the Legislature from the business. He suggested
for consideration . . . requiring some preliminary inquest of
whether just grounds for impeachment existed.
Benjamin Franklin again suggested the role of impeachments in
releasing tensions, using an example from international affairs
involving a secret plot to cause the failure of a rendezvous
between the French and Dutch fleets--an example suggestive of
treason. Gouverneur Morris, his opinion now changed by the
discussion, closed the debate on a note echoing the position of
Randolph:
Our Executive . . . may be bribed by a greater interest to
betray his trust; and no one would say that we ought to expose
ourselves to the danger of seeing the first Magistrate in
foreign pay without being able to guard agst. it by displacing
him. . . . The Executive ought therefore to be impeachable for
treachery; Corrupting his electors, and incapacity were other
causes of impeachment. For the latter he should be punished not
as a man, but as an officer, and punished only by degradation
from his office. . . . When we make him amenable to Justice
however we should take care to provide some mode that will not
make him dependent on the Legislature.
On the question, ``Shall the Executive be removable on
impeachments,'' the proposition then carried by a vote of eight
states to two.
A review of this debate hardly leaves the impression that the
Framers intended the grounds for impeachment to be left to the
discretion, even the ``sound'' discretion, of the legislature. On a
fair reading, Madison's notes reveal the Framers' fear that the
impeachment power would render the executive dependent on the
legislature. The concrete examples used in the debate all refer not
only to crimes, but to extremely grave crimes. George Mason
mentioned the possibility that the President would corrupt his own
electors and then ``repeat his guilt,'' and described grounds for
impeachment as ``the most extensive injustice.'' Franklin alluded
to the beheading of Charles I, the possibility of assassination,
and the example of the French and Dutch fleets, which connoted
betrayal of a national interest. Madison mentioned the
``perversion'' of an ``administration into a scheme of peculation
or oppression,'' or the ``betrayal'' of the executive's ``trust to
foreign powers.'' Edmund Randolph mentioned the great opportunities
for abuse of the executive power, ``particularly in time of war
when the military force, and in some respects the public money will
be in his hands.'' He cautioned against ``tu
[[Page 1986]]
mults & insurrections.'' Gouveneur Morris similarly contemplated
that the executive might corrupt his own electors, or ``be bribed
by a greater interest to betray his trust''--just as the King of
England had been bribed by Louis XIV--and felt he should therefore
be impeachable for ``treachery.''
After the July 20 vote to retain the impeachment clause, the
resolution containing it was referred to the Committee on Detail,
which substituted ``treason, bribery or corruption'' for
``malpractice or neglect of duty.'' No surviving records explain
the reasons for the change, but they are not difficult to
understand, in light of the floor discussion just summarized. The
change fairly captured the sense of the July 20 debate, in which
the grounds for impeachment seem to have been such acts as would
either cause danger to the very existence of the United States, or
involve the purchase and sale of the ``Chief of Magistracy,'' which
would tend to the same result. It is not a fair summary of this
debate--which is the only surviving discussion of any length by the
Framers as to the grounds for impeachment--to say that the Framers
were principally concerned with reaching a course of conduct
whether or not criminal, generally inconsistent with the proper and
effective exercise of the office of the presidency. They were
concerned with preserving the government from being overthrown by
the treachery or corruption of one man. Even in the context of that
purpose, they steadfastly reiterated the importance of putting a
check on the legislature's use of power and refused to expand the
narrow definition they had given to treason in the Constitution.
They saw punishment as a significant purpose of impeachment. The
changes in language made by the Committee on Detail can be taken to
reflect a consensus of the debate that (1) impeachment would be the
proper remedy where grave crimes had been committed, and (2)
adherence to this standard would satisfy the widely recognized need
for a check on potential excesses of the impeachment power itself.
The impeachment clause, as amended by the Committee on Detail
to refer to ``treason, bribery or corruption,'' was reported to the
full Convention on August 6, 1787, as part of the draft
constitution. Together with other sections, it was referred to the
Committee of Eleven on August 31. This Committee further narrowed
the grounds to ``treason or bribery,'' while at the same time
substituting trial by the Senate for trial by the Supreme Court,
and requiring a two-thirds vote to convict. No surviving records
explain the purpose of this change. The mention of ``corruption''
may have been thought redundant, in view of the provision for
bribery. Or, corruption might have been regarded by the Committee
as too broad, because not a well-defined crime. In any case, the
change limited the grounds for impeachment to two clearly
understood and enumerated crimes.
The revised clause, containing the grounds ``treason and
bribery,'' came before the full body again on September 8, late in
the Convention. George Mason moved to add to the enumerated grounds
for impeachment. Madison's Journal reflects the following exchange:
Col. Mason. Why is the provision restrained to Treason &
bribery
[[Page 1987]]
only? Treason as defined in the Constitution will not reach
many great and dangerous offenses. Hastings is not guilty of
Treason. Attempts to subvert the Constitution may not be
Treason as above defined--as bills of attainder which have
saved the British Constitution are forbidden, it is the more
necessary to extend: the power of impeachments. He movd. to add
after ``bribery'' ``or maladministration.'' Mr. Gerry seconded
him--
Mr. Madison. So vague a term will be equivalent to a tenure
during pleasure of the Senate.
Mr. Govr. Morris., it will not be put in force & can do no
harm--An election of every four years will prevent
maladministration.
Col. Mason withdrew ``maladministration'' & substitutes
``other high crimes and misdemeanors'' agst. the State.
On the question thus altered, the motion of Colonel Mason
passed by a vote of eight states to three.
Madison's notes reveal no debate as to the meaning of the
phrase ``other high Crimes and Misdemeanors.'' All that appears is
that Mason was concerned with the narrowness of the definition of
treason; that his purpose in proposing ``maladministration'' was to
reach great and dangerous offenses; and that Madison felt that
``maladministration,'' which was included as a ground for
impeachment of public officials in the constitutions of six states,
including his own, would be too ``vague'' and would imperil the
independence of the President.
It is our judgment, based upon this constitutional history,
that the Framers of the United States Constitution intended that
the President should be removable by the legislative branch only
for serious misconduct dangerous to the system of government
established by the Constitution. Absent the element of danger to
the State, we believe the Delegates to the Federal Convention of
1787, in providing that the President should serve for a fixed
elective term rather than during good behavior or popularity,
struck the balance in favor of stability in the executive branch.
We have never had a British parliamentary system in this country,
and we have never adopted the device of a parliamentary vote of no-
confidence in the chief executive. If it is thought desirable to
adopt such a system of government, the proper way to do so is by
amending our written Constitution--not by removing the President.
2. are ``high crimes and misdemeanors'' non-criminal?
a. Language of the Constitution
The language of the Constitution indicates that impeachment can
lie only for serious criminal offenses.
First, of course, treason and bribery were indictable offenses
in 1787, as they are now. The words ``crime'' and ``misdemeanor'',
as well, both had an accepted meaning in the English law of the
day, and referred to criminal acts. Sir William Blackstone's
Commentaries on the Laws of England, (1771), which enjoyed a wide
circulation in the American colonies, defined the terms as follows:
I. A crime, or misdemeanor is an act committed, or omitted,
in violation of a public law, either forbidding or commanding
it. This general definition comprehends both crimes and
misdemeanors; which, properly speaking, are mere synonymous
terms: though, in common usage, the word ``crimes'' is made to
denote
[[Page 1988]]
such offenses as are of a deeper and more atrocious dye; while
smaller faults, and omissions of less consequence, are
comprised under the gentler name of ``misdemeanors'' only.
Thus, it appears that the word ``misdemeanor'' was used at the time
Blackstone wrote, as it is today, to refer to less serious crimes.
Second, the use of the word ``other'' in the phrase ``Treason,
Bribery or other high Crimes and Misdemeanors'' seems to indicate
that high Crimes and Misdemeanors had something in common with
Treason and Bribery--both of which are, of course, serious criminal
offenses threatening the integrity of government.
Third, the extradition clause of the Articles of Confederation
(1781), the governing instrument of the United States prior to the
adoption of the Constitution, had provided for extradition from one
state to another of any person charged with ``treason, felony or
other high misdemeanor.'' If ``high misdemeanor'' had something in
common with treason and felony in this clause, so as to warrant the
use of the word ``other,'' it is hard to see what it could have
been except that all were regarded as serious crimes. Certainly it
would not have been contemplated that a person could be extradited
for an offense which was non-criminal.
Finally, the references to impeachment in the Constitution use
the language of the criminal law. Removal from office follows
``conviction,'' when the Senate has ``tried'' the impeachment. The
party convicted is ``nevertheless . . . liable and subject to
Indictment, Trial, Judgment and Punishment, according to Law.'' The
trial of all Crimes is by Jury, ``except in cases of Impeachment.''
The President is given power to grant ``Pardons for Offenses
against the United States, except in Cases of Impeachment.''
This constitutional usage, in its totality, strengthens the
notion that the words ``Crime'' and ``Misdemeanor'' in the
impeachment clause are to be understood in their ordinary sense,
i.e., as importing criminality. At the very least, this terminology
strongly suggests the criminal or quasi-criminal nature of the
impeachment process.
b. English impeachment practice
It is sometimes argued that officers may be impeached for non-
criminal conduct, because the origins of impeachment in England in
the fourteenth and seventeenth centuries show that the procedure
was not limited to criminal conduct in that country.
Early English impeachment practice, however, often involved a
straight power struggle between the Parliament and the King. After
parliamentary supremacy had been established, the practice was not
so open-ended as it had been previously. Blackstone wrote (between
1765 and 1769) that
[A]n impeachment before the Lords by the commons of Great
Britain, in parliament, is a prosecution of the already known
and established law. . . .
The development of English impeachment practice in the
eighteenth century is illustrated by the result of the first major
nineteenth century impeachment in that country--that of Lord
Melville, Treasurer of the Navy, in 1805-1806. Melville was charged
with wrongful use of public moneys. Before passing judgment, the
House of
[[Page 1989]]
Lords requested the formal opinion of the judges upon the following
question:
Whether it was lawful for the Treasurer of the Navy, before
the passing of the Act 25 Geo. 3rd, c. 31, to apply any sum of
money [imprested] to him for navy [sumpsimus] services to any
other use whatsoever, public or private, without express
authority for so doing; and whether such application by such
treasurer would have been a misdemeanor, or punishable by
information or indictment?
The judges replied:
It was not unlawful for the Treasurer of the Navy before
the Act 25 Geo. 3rd, c. 31 . . . to apply any sum of money
impressed to him for navy services, to other uses . . . without
express authority for so doing, so as to constitute a
misdemeanor punishable by information or indictment.
Upon this ruling by the judges that Melville had committed no
crime, he was acquitted. The case thus strongly suggests that the
Lords in 1805 believed an impeachment conviction to require a
``misdemeanor punishable by information or indictment.'' The case
may be taken to cast doubt on the vitality of precedents from an
earlier, more turbid political era and to point the way to the
Framers' conception of a valid exercise of the impeachment power in
the future. As a matter of policy, as well, it is an appropriate
precedent to follow in the latter twentieth century.
The argument that the President should be impeachable for
general misbehavior, because some English impeachments do not
appear to have involved criminal charges, also takes too little
account of the historical fact that the Framers, mindful of the
turbulence of parliamentary uses of the impeachment power, cut back
on that power in several respects in adapting it to an American
context. Congressional bills of attainder and ex post facto laws,
which had supplemented the impeachment power in England, were
expressly forbidden. Treason was defined in the Constitution--and
defined narrowly--so that Congress acting alone could not change
the definition, as Parliament had been able to do. The consequences
of impeachment and conviction, which in England had frequently
meant death, were limited to removal from office and
disqualification to hold further federal office. Whereas a majority
vote of the Lords had sufficed for conviction, in America a two-
thirds vote of the Senate would be required. Whereas Parliament had
had the power to impeach private citizens, the American procedure
could be directed only against civil officers of the national
government. The grounds for impeachment--unlike the grounds for
impeachment in England--were stated in the Constitution.
In the light of these modifications, it is misreading history
to say that the Framers intended, by the mere approval of Mason's
substitute amendment, to adopt in toto the British grounds for
impeachment. Having carefully narrowed the definition of treason,
for example, they could scarcely have intended that British treason
precedents would guide ours.
c. American impeachment practice
The impeachment of President Andrew Johnson is the most
important precedent for a consideration of what constitutes grounds
for impeachment of a President, even if it has been his
[[Page 1990]]
torically regarded (and probably fairly so) as an excessively
partisan exercise of the impeachment power.
The Johnson impeachment was the product of a fundamental and
bitter split between the President and the Congress as to
Reconstruction policy in the Southern states following the Civil
War. Johnson's vetoes of legislation, his use of pardons, and his
choice of appointees in the South all made it impossible for the
Reconstruction Acts to be enforced in the manner which Congress not
only desired, but thought urgently necessary.
On March 7, 1867, the House referred to the Judiciary Committee
a resolution authorizing it
to inquire into the official conduct of Andrew Johnson . . .
and to report to this House whether, in their opinion, the said
Andrew Johnson, while in said office, has been guilty of acts
which were designed or calculated to overthrow or corrupt the
government of the United States . . . and whether the said
Andrew Johnson has been guilty of any act, or has conspired
with others to do acts, which, in contemplation of the
Constitution, are high crimes and misdemeanors, requiring the
interposition of the constitutional powers of this House.
On November 25, 1867, the Committee reported to the full House
a resolution recommending impeachment, by a vote of 5 to 4. A
minority of the Committee, led by Rep. James F. Wilson of Iowa,
took the position that there could be no impeachment because the
President had committed no crime:
In approaching a conclusion, we do not fail to recognize
two standpoints from which this case can be viewed--the legal
and the political.
. . . Judge him politically, we must condemn him. But the
day of political impeachments would be a sad one for this
country. Political unfitness and incapacity must be tried at
the ballot-box, not in the high court of impeachment. A
contrary rule might leave to Congress but little time for other
business than the trial of impeachments.
. . . [C]rimes and misdemeanors are now demanding our
attention. Do these, within the meaning of the Constitution,
appear? Rest the case upon political offenses, and we are
prepared to pronounce against the President, for such offenses
are numerous and grave . . . [yet] we still affirm that the
conclusion at which we have arrived is correct.
The resolution recommending impeachment was debated in the
House on December 5 and 6, 1867, Rep. George S. Boutwell of
Massachusetts speaking for the Committee majority in favor of
impeachment, and Rep. Wilson speaking in the negative. Aside from
characterization of undisputed facts discovered by the Committee,
the only point debated was whether the commission of a crime was an
essential element of impeachable conduct by the President. Rep.
Boutwell began by saying, ``If the theory of the law submitted by
the minority of the committee be in the judgment of this House a
true theory, then the majority have no case whatsoever.'' ``The
country was disappointed, no doubt, in the report of the
committee,'' he continued, ``and very likely this House
participated in the disappointment, that there was no specific,
heinous, novel offense charged upon and proved against the
President of the United States.'' And again, ``It may not be
possible, by specific charge, to arraign him for this great crime,
but is he therefore to escape?''
[[Page 1991]]
The House of Representatives answered this question the next
day, when the majority resolution recommending, impeachment was
defeated by a vote of 57 to 108. The issue of impeachment was thus
laid to rest for the time being.
Earlier in 1867, the Congress had passed the Tenure-of-Office
Act, which took away the President's authority to remove members of
his own Cabinet, and provided that violation of the Act should be
punishable by imprisonment of up to five years and a fine of up to
ten thousand dollars and ``shall be deemed a high misdemeanor''--
fair notice that Congress would consider violation of the statute
an impeachable, as well as a criminal, offense. It was generally
known that Johnson's policy toward Reconstruction was not shared by
his Secretary of War, Edwin M. Stanton. Although Johnson believed
the Tenure-of-Office Act to be unconstitutional, he had not
infringed its provisions at the time the 1867 impeachment attempt
against him failed by such a decisive margin.
Two and a half months later, however, Johnson removed Stanton
from office, in apparent disregard of the Tenure-of-Office Act. The
response of Congress was immediate: Johnson was impeached three
days later, on February 24, 1868, by a vote of 128 to 47--an even
greater margin than that by which the first impeachment vote had
failed.
The reversal is a dramatic demonstration that the House of
Representatives believed it had to find the President guilty of a
crime before impeaching him. The nine articles of impeachment which
were adopted against Johnson, on March 2, 1868, all related to his
removal of Secretary Stanton, allegedly in deliberate violation of
the Tenure-of-Office Act, the Constitution, and certain other
related statutes. The vote had failed less than three months
before; and except for Stanton's removal and related matters,
nothing in the new Articles charged Johnson with any act committed
subsequent to the previous vote.
The only other case of impeachment of an officer of the
executive branch is that of Secretary of War William W. Belknap in
1876. All five articles alleged that Belknap ``corruptly'' accepted
and received considerable sums of money in exchange for exercising
his authority to appoint a certain person as a military post
trader. The facts alleged would have sufficed to constitute the
crime of bribery. Belknap resigned before the adoption of the
Articles and was subsequently indicted for the conduct alleged.
It may be acknowledged that in the impeachment of federal
judges, as opposed to executive officers, the actual commission of
a crime does not appear always to have been thought essential.
However, the debates in the House and opinions filed by Senators
have made it clear that in the impeachments of federal judges,
Congress has placed great reliance upon the ``good behavior''
clause. The distinction between officers tenured during good
behavior and elected officers, for purposes of grounds for
impeachment, was stressed by Rufus King at the Constitutional
Convention of 1787. A judge's impeachment or conviction resting
upon ``general misbehavior,'' in whatever degree, cannot be an
appropriate guide for the impeachment or conviction of an elected
officer serving for a fixed term.
[[Page 1992]]
The impeachments of federal judges are also different from the
case of a President for other reasons: (1) Some of the President's
duties e.g., as chief of a political party, are sufficiently
dissimilar to those of the judiciary that conduct perfectly
appropriate for him, such as making a partisan political speech,
would be grossly improper for a judge. An officer charged with the
continual adjudication of disputes labors under a more stringent
injunction against the appearance of partisanship than an officer
directly charged with the formulation and negotiation of public
policy in the political arena--a fact reflected in the adoption of
Canons of Judicial Ethics. (2) The phrase ``and all civil
Officers'' was not added until after the debates on the impeachment
clause had taken place. The words ``high crimes and misdemeanors''
were added while the Framers were debating a clause concerned
exclusively with the impeachment of the President. There was no
discussion during the Convention as to what would constitute
impeachable conduct for judges. (3) Finally, the removal of a
President from office would obviously have a far greater impact
upon the equilibrium of our system of government than the removal
of a single federal judge.
d. The need for a standard: criminal intent
When the Framers included the power to impeach the President in
our Constitution, they desired to ``provide some mode that will not
make him dependent on the Legislature.'' To this end, they withheld
from the Congress many of the powers enjoyed by Parliament in
England; and they defined the grounds for impeachment in their
written Constitution. It is hardly conceivable that the Framers
wished the new Congress to adopt as a starting point the record of
all the excesses to which desperate struggles for power had driven
Parliament, or to use the impeachment power freely whenever
Congress might deem it desirable. The whole tenor of the Framers'
discussions, the whole purpose of their many careful departures
from English impeachment practice, was in the direction of limits
and of standards. An impeachment power exercised without extrinsic
and objective standards would be tantamount to the use of bills of
attainder and ex post facto laws, which are expressly forbidden by
the Constitution and are contrary to the American spirit of
justice.
It is beyond argument that a violation of the President's oath
or a violation of his duty to take care that the laws be faithfully
executed, must be impeachable conduct or there would be no means of
enforcing the Constitution. However, this elementary proposition is
inadequate to define the impeachment power. It remains to determine
what kind of conduct constitutes a violation of the oath or the
duty. Furthermore, reliance on the summary phrase, ``violation of
the Constitution,'' would not always be appropriate as a standard,
because actions constituting an apparent violation of one provision
of the Constitution may be justified or even required by other
provisions of the Constitution.
There are types of misconduct by public officials--for example,
ineptitude, or unintentional or ``technical'' violations of rules
or statutes, or ``maladministration''--which would not be criminal;
nor could they be made crimi
[[Page 1993]]
nal, consonant with the Constitution, because the element of
criminal intent or mens rea would be lacking. Without a requirement
of criminal acts or at least criminal intent, Congress would be
free to impeach these officials. The loss of this freedom should
not be mourned; such a use of the impeachment power was never
intended by the Framers, is not supported by the language of our
Constitution, and, if history is to guide us, would be seriously
unwise as well.
As Alexander Simpson stated in his Treatise on Federal
Impeachments (1916):
The Senate must find an intent to do wrong. It is, of
course, admitted that a party will be presumed to intend the
natural and necessary results of his voluntary acts, but that
is a presumption only, and it is not always inferable from the
act done. So ancient is this principle, and so universal is its
application, that it has long since ripened into the maxim,
Actus non facit reun, [nisi] mens sit rea, and has come to be
regarded as one of the fundamental legal principles of our
system of jurisprudence. (p. 29).
The point was thus stated by James Iredell in the North Carolina
ratifying convention: ``I beg leave to observe that, when any man is
impeached, it must be for an error of the heart, and not of the head.
God forbid that a man, in any country in the world, should be liable to
be punished for want of judgment. This is not the case here.
The minority views did support a portion of Article I on the ground
that criminal conduct was alleged therein and sustained by the
evidence; but found no impeachable offenses constituted in Articles II
and III:
(1) With respect to proposed Article I, we believe that the
charges of conspiracy to obstruct justice, and obstruction of
justice, which are contained in the Article in essence, if not in
terms, may be taken as substantially confessed by Mr. Nixon on
August 5, 1974, and corroborated by ample other evidence in the
record. Prior to Mr. Nixon's revelation of the contents of three
conversations between him and his former Chief of Staff, H. R.
Haldeman, that took place on June 23, 1972, we did not, and still
do not, believe that the evidence of presidential involvement in
the Watergate cover-up conspiracy, as developed at that time, was
sufficient to warrant Members of the House, or dispassionate jurors
in the Senate, in finding Mr. Nixon guilty of an impeachable
offense beyond a reasonable doubt, which we believe to be the
appropriate standard.
(2) With respect to proposed Article II, we find sufficient
evidence to warrant a belief that isolated instances of unlawful
conduct by presidential aides and subordinates did occur during the
five-and-one-half years of the Nixon Administration, with varying
degrees of direct personal knowledge or involvement of the
President in these respective illegal episodes. We roundly condemn
such abuses and unreservedly favor the invocation of existing legal
sanctions, or the creation of new ones, where needed, to deter such
reprehensible official conduct in the future, no
[[Page 1994]]
matter in whose Administration, or by what brand or partisan, it
might be perpetrated.
Nevertheless, we cannot join with those who claim to perceive
an invidious, pervasive ``pattern'' of illegality in the conduct of
official government business generally by President Nixon. In some
instances, as noted below, we disagree with the majority's
interpretation of the evidence regarding either the intrinsic
illegality of the conduct studied or the linkage of Mr. Nixon
personally to it. Moreover, even as to those acts which we would
concur in characterizing as abusive and which the President
appeared to direct or countenance, neither singly nor in the
aggregate do they impress us as being offenses for which Richard
Nixon, or any President, should be impeached or removed from
office, when considered, as they must be, on their own footing,
apart from the obstruction of justice charge under proposed Article
I which we believe to be sustained by the evidence.
(3) Likewise, with respect to proposed Article III, we believe
that this charge, standing alone, affords insufficient grounds for
impeachment. Our concern here, as explicated in the discussion
below, is that the Congressional subpoena power itself not be too
easily abused as a means of achieving the impeachment and removal
of a President against whom no other substantive impeachable
offense has been proved by sufficient evidence derived from sources
other than the President himself. We believe it is particularly
important for the House to refrain from impeachment on the sole
basis of noncompliance with subpoenas where, as here, colorable
claims of privilege have been asserted in defense of non-production
of the subpoenaed materials, and the validity of those claims has
not been adjudicated in any established, lawful adversary
proceeding before the House is called upon to decide whether to
impeach a President on grounds of noncompliance with subpoenas
issued by a Committee inquiring into the existence of sufficient
grounds for impeachment.(20)
---------------------------------------------------------------------------
20. H. Rept. No. 93-1305, at pp. 360, 361, Committee on the Judiciary,
printed in the Record at 120 Cong. Rec. 29311, 93d Cong. 2d
Sess., Aug. 20, 1974.
---------------------------------------------------------------------------
Grounds for Impeachment of Federal Judges
Sec. 3.9 Following introduction and referral of impeachment resolutions
against a Supreme Court Justice in the 91st Congress, when grounds
for impeachment of federal judges were discussed at length in the
House, the view was taken that federal civil officers may be
impeached for less than indictable offenses; that an impeachable
offense is what a majority of the House considers it to be; and
that a higher standard of conduct is expected of federal judges
than of other federal civil officers.
On Apr. 15, 1970, resolutions relating to the impeachment of
[[Page 1995]]
Associate Justice William O. Douglas of the Supreme Court were
introduced and referred, following a special-order speech by the
Minority Leader, Gerald R. Ford, of Michigan. Mr. Ford discussed the
grounds for impeachment of a federal judge, saying in part:
(1)
---------------------------------------------------------------------------
1. 116 Cong. Rec. 11912-14, 91st Cong. 2d Sess. Charges against
Justice Douglas were investigated by a subcommittee of the
Committee on the Judiciary, which recommended against
impeachment (see Sec. Sec. 14.14, 14.15, infra).
---------------------------------------------------------------------------
No, the Constitution does not guarantee a lifetime of power and
authority to any public official. The terms of Members of the House
are fixed at 2 years; of the President and Vice President at 4; of
U.S. Senators at 6. Members of the Federal judiciary hold their
offices only ``during good behaviour.''
Let me read the first section of article III of the
Constitution in full:
The judicial power of the United States shall be vested in
one supreme Court, and in such inferior Courts as the Congress
may from time to time ordain and establish. The Judges, both of
the supreme and inferior Courts, shall hold their Offices
during good Behaviour, and shall, at stated Times, receive for
their Services, a Compensation, which shall not be diminished
during their Continuance in Office. . . .
. . . Thus, we come quickly to the central question: What
constitutes ``good behaviour'' or, conversely, ungood or
disqualifying behaviour?
The words employed by the Framers of the Constitution were, as
the proceedings of the Convention detail, chosen with exceedingly
great care and precision. Note, for example, the word
``behaviour.'' It relates to action, not merely to thoughts or
opinions; further, it refers not to a single act but to a pattern
or continuing sequence of action. We cannot and should not remove a
Federal judge for the legal views he holds--this would be as
contemptible as to exclude him from serving on the Supreme Court
for his ideology or past decisions. Nor should we remove him for a
minor or isolated mistake--this does not constitute behaviour in
the common meaning.
What we should scrutinize in sitting Judges is their continuing
pattern of action, their behaviour. The Constitution does not
demand that it be ``exemplary'' or ``perfect.'' But it does have to
be ``good.''
Naturally, there must be orderly procedure for determining
whether or not a Federal judge's behaviour is good. The courts,
arbiters in most such questions of judgment, cannot judge
themselves. So the Founding Fathers vested this ultimate power
where the ultimate sovereignty of our system is most directly
reflected--in the Congress, in the elected Representatives of the
people and of the States.
In this seldom-used procedure, called impeachment, the
legislative branch exercises both executive and judicial functions.
The roles of the two bodies differ dramatically. The House serves
as prosecutor and grand jury; the Senate serves as judge and trial
jury.
Article I of the Constitution has this to say about the
impeachment process:
The House of Representatives--shall have the sole power of
Impeachment.
[[Page 1996]]
The Senate shall have the sole Power to try all
Impeachments. When sitting for that Purpose, they shall be on
Oath or Affirmation. When the President of the United States is
tried, the Chief Justice shall preside: And no Person shall be
convicted without the Concurrence of two-thirds of the Members
present.
Article II, dealing with the executive branch, states in
section 4:
The 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.
This has been the most controversial of the constitutional
references to the impeachment process. No consensus exists as to
whether, in the case of Federal judges, impeachment must depend
upon conviction of one of the two specified crimes of treason or
bribery or be within the nebulous category of ``other high crimes
and misdemeanors.'' There are pages upon pages of learned argument
whether the adjective ``high'' modifies ``misdemeanors'' as well as
``crimes,'' and over what, indeed, constitutes a ``high
misdemeanor.''
In my view, one of the specific or general offenses cited in
article II is required for removal of the indirectly elected
President and Vice President and all appointed civil officers of
the executive branch of the Federal Government, whatever their
terms of office. But in the case of members of the judicial branch,
Federal judges and Justices, I believe an additional and much
stricter requirement is imposed by article II, namely, ``good
behaviour.''
Finally, and this is a most significant provision, article I of
the Constitution specifies:
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: but the Party convicted shall nevertheless be liable
and subject to Indictment, Trial, Judgment and Punishment,
according to Law. . . .
With this brief review of the law, of the constitutional
background for impeachment, I have endeavored to correct two common
misconceptions: first, that Federal judges are appointed for life
and, second, that they can be removed only by being convicted, with
all ordinary protections and presumptions of innocence to which an
accused is entitled, of violating the law.
This is not the case. Federal judges can be and have been
impeached for improper personal habits such as chronic intoxication
on the bench, and one of the charges brought against President
Andrew Johnson was that he delivered ``intemperate, inflammatory,
and scandalous harangues.''
I have studied the principal impeachment actions that have been
initiated over the years and frankly, there are too few cases to
make very good law. About the only thing the authorities can agree
upon in recent history, though it was hotly argued up to President
Johnson's impeachment and the trial of Judge Swayne, is that an
offense need not be indictable to be impeachable. In other words,
something less than a criminal act or criminal dereliction of duty
may nevertheless be sufficient grounds for impeachment and removal
from public office.
What, then, is an impeachable offense?
The only honest answer is that an impeachable offense is
whatever a ma
[[Page 1997]]
jority of the House of Representatives considers to be at a given
moment in history; conviction results from whatever offense or
offenses two-thirds of the other body considers to be sufficiently
serious to require removal of the accused from office. Again, the
historical context and political climate are important; there are
few fixed principles among the handful of precedents.
I think it is fair to come to one conclusion, however, from our
history of impeachments: a higher standard is expected of Federal
judges than of any other ``civil officers'' of the United States.
The President and Vice President, and all persons holding
office at the pleasure of the President, can be thrown out of
office by the voters at least every 4 years. To remove them in
midterm--it has been tried only twice and never done--would indeed
require crimes of the magnitude of treason and bribery. Other
elective officials, such as Members of the Congress, are so
vulnerable to public displeasure that their removal by the
complicated impeachment route has not even been tried since 1798.
But nine Federal judges, including one Associate Justice of the
Supreme Court, have been impeached by this House and tried by the
Senate; four were acquitted; four convicted and removed from
office; and one resigned during trial and the impeachment was
dismissed.
In the most recent impeachment trial conducted by the other
body, that of U.S. Judge Halsted L. Ritter of the southern district
of Florida who was removed in 1936, the point of judicial behavior
was paramount, since the criminal charges were admittedly thin.
This case was in the context of F.D.R.'s effort to pack the Supreme
Court with Justices more to his liking; Judge Ritter was a
transplanted conservative Colorado Republican appointed to the
Federal bench in solidly Democratic Florida by President Coolidge.
He was convicted by a coalition of liberal Republicans, New Deal
Democrats, and Farmer-Labor and Progressive Party Senators in what
might be called the northwestern strategy of that era.
Nevertheless, the arguments were persuasive:
In a joint statement, Senators Borah, La Follette, Frazier, and
Shipstead said:
We therefore did not, in passing upon the facts presented
to us in the matter of the impeachment proceedings against
Judge Halsted L. Ritter, seek to satisfy ourselves as to
whether technically a crime or crimes had been committed, or as
to whether the acts charged and proved disclosed criminal
intent or corrupt motive: we sought only to ascertain from
these facts whether his conduct had been such as to amount to
misbehavior, misconduct--as to whether he had conducted himself
in a way that was calculated to undermine public confidence in
the courts and to create a sense of scandal.
There are a great many things which one must readily admit
would be wholly unbecoming, wholly intolerable, in the conduct
of a judge, and yet these things might not amount to a crime.
Senator Elbert Thomas of Utah, citing the Jeffersonian and
colonial antecedents of the impeachment process, bluntly declared:
Tenure during good behavior . . . is in no sense a guaranty
of a life job, and misbehavior in the ordinary,
[[Page 1998]]
dictionary sense of the term will cause it to be cut short on
the vote, under special oath, of two-thirds of the Senate, if
charges are first brought by the House of Representatives. . .
. To assume that good behavior means anything but good behavior
would be to cast a reflection upon the ability of the fathers
to express themselves in understandable language.
But the best summary, in my opinion, was that of Senator
William G. McAdoo of California, son-in-law of Woodrow Wilson and
his Secretary of the Treasury:
I approach this subject from the standpoint of the general
conduct of this judge while on the bench, as portrayed by the
various counts in the impeachment and the evidence submitted in
the trial. The picture thus presented is, to my mind, that of a
man who is so lacking in any proper conception of professional
ethics and those high standards of judicial character and
conduct as to constitute misbehavior in its most serious
aspects, and to render him unfit to hold a judicial office . .
.
Good behavior, as it is used in the Constitution, exacts of
a judge the highest standards of public and private rectitude.
No judge can besmirch the robes he wears by relaxing these
standards, by compromising them through conduct which brings
reproach upon himself personally, or upon the great office he
holds. No more sacred trust is committed to the bench of the
United States than to keep shining with undimmed effulgence the
brightest jewel in the crown of democracy--justice.
However disagreeable the duty may be to those of us who
constitute this great body in determining the guilt of those
who are entrusted under the Constitution with the high
responsibilities of judicial office, we must be as exacting in
our conception of the obligations of a judicial officer as Mr.
Justice Cardozo defined them when he said, in connection with
fiduciaries, that they should be held ``to something stricter
than the morals of the market-place. Not honesty alone, but the
punctilio of an honor the most sensitive, is then the standard
of behavior.'' (Meinhard v. Solmon, 249 N.Y. 458.)
Sec. 3.10 The view has been taken that the term ``good behavior,'' as a
requirement for federal judges remaining in office, must be read in
conjunction with the standard of ``high crimes and misdemeanors,''
and that the conduct of federal judges to constitute an impeachable
offense must be either criminal conduct or serious judicial
misconduct.
On Apr. 21, 1970, Mr. Paul N. McCloskey, Jr., of California, took
the floor for a special-order speech in which he challenged the
hypothesis of Mr. Gerald R. Ford, of Michigan (see Sec. 3.9, supra), as
to the grounds for impeachment of federal judges: (2)
---------------------------------------------------------------------------
2. 116 Cong. Rec. 12569-71, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
I respectfully disagree with the basic premise ``that an
impeachable offense is whatever a majority of the House of
Representatives considers it to be at a given moment in history.''
To accept this view, in my judgment, would do grave damage to
one of the
[[Page 1999]]
most treasured cornerstones of our liberties, the constitutional
principle of an independent judiciary, free not only from public
passions and emotions, but also free from fear of executive or
legislative disfavor except under already-defined rules and
precedents. . . .
First, I should like to discuss the concept of an impeachable
offense as ``whatever the majority of the House of Representatives
considers it to be at any given time in history.'' If this concept
is accurate, then of course there are no limitations on what a
political majority might determine to be less than good behavior.
It follows that judges of the Court could conceivably be removed
whenever the majority of the House and two-thirds of the Senate
agreed that a better judge might fill the position. But this
concept has no basis, either in our constitutional history or in
actual case precedent.
The intent of the framers of the Constitution was clearly to
protect judges from political disagreement, rather than to simplify
their ease of removal.
The Original Colonies had had a long history of difficulties
with the administration of justice under the British Crown. The
Declaration of Independence listed as one of its grievances against
the King:
He has made Judges dependent on his Will alone, for the
tenure of their offices and the amount and payment of their
salaries.
The signers of the Declaration of Independence were primarily
concerned about preserving the independence of the judiciary from
direct or indirect pressures, and particularly from the pressure of
discretionary termination of their jobs or diminution of their
salaries.
In the debates which took place in the Constitutional
Convention 11 years later, this concern was expressed in both of
the major proposals presented to the delegates. The Virginia and
New Jersey plans both contained language substantively similar to
that finally adopted, as follows:
Article III, Section 1 states ``The Judges, both of the
Supreme and inferior Courts, shall hold their offices during
good Behavior, and shall, at stated times, receive for their
Services, a Compensation, which shall not be diminished during
their Continuance in Office.''
The ``good behavior'' standard thus does not stand alone. It
must be read with reference to the clear intention of the framers
to protect the independence of the judiciary against executive or
legislative action on their compensation, presumably because of the
danger of political disagreement.
If, in order to protect judicial independence, Congress is
specifically precluded from terminating or reducing the salaries of
Judges, it seems clear that Congress was not intended to have the
power to designate ``as an impeachable offense whatever a majority
of the House of Representatives considers it to be at a given
moment.''
If an independent judiciary is to be preserved, the House must
exercise decent restraint and caution in its definition of what is
less than good behavior. As we honor the Court's self-imposed
doctrine of judicial restraint, so we might likewise honor the
principle of legislative restraint in considering serious charges
against members of a co-equal branch of Government which we have
wished to keep free from political tensions and emotions. . . .
[[Page 2000]]
The term ``good behavior,'' as the Founding Fathers considered
it, must be taken together with the specific provisions limiting
cause for impeachment of executive branch personnel to treason,
bribery or other high crimes and misdemeanors. The higher standard
of good behavior required of Judges might well be considered as
applicable solely to their judicial performance and capacity and
not to their private and nonjudicial conduct unless the same is
violative of the law. Alcoholism, arrogance, nonjudicial
temperament, and senility of course interfere with judicial
performance and properly justify impeachment. I can find no
precedent, however, for impeachment of a Judge for nonjudicial
conduct which falls short of violation of law.
In looking to the nine cases of impeachment of Judges spanning
181 years of our national history, in every case involved, the
impeachment was based on either improper judicial conduct or
nonjudicial conduct which was considered as criminal in nature. . .
.
From the brief research I have been able to do on these nine
cases, and as reflected in the Congressional Quarterly of April 17,
1970, the charges were as follows:
District Judge John Pickering, 1804: Loose morals,
intemperance, and irregular judicial procedure.
Associate Supreme Court Justice Samuel Chase, 1805: Partisan,
harsh, and unfair conduct during trials.
District Judge James H. Peck, 1831: Imposing an unreasonably
harsh penalty for contempt of court.
District Judge West H. Humphreys, 1862: Supported secession and
served as a Confederate judge.
District Judge Charles Swayne, 1905: Padding expense accounts,
living outside his district, misuse of property and of the contempt
power.
Associate Court of Commerce Judge Robert Archbald, 1913:
Improper use of influence, and accepting favors from litigants.
District Judge George W. English, 1926: Tyranny, oppression,
and partiality.
District Judge Harold Louderback, 1933: Favoritism, and
conspiracy.
District Judge Halsted L. Ritter, 1936: Judicial improprieties,
accepting legal fees while on the bench, bringing his court into
scandal and disrepute, and failure to pay his income tax.
The bulk of these challenges to the court were thus on judicial
misconduct, with scattered instances of nonjudicial behavior. In
all cases, however, insofar as I have been able to thus far
determine, the nonjudicial behavior involved clear violation of
criminal or civil law, and not just a ``pattern of behavior'' that
others might find less than ``good.''
If the House accepts precedent as a guide, then, an impeachment
of a Justice of the Supreme Court based on charges which are
neither unlawful in nature nor connected with the performance of
his judicial duties would represent a highly dubious break with
custom and tradition at a time when, as the gentleman from New York
(Mr. Horton), stated last Wednesday:
We are living in an era when the institutions of government
and the people who man them are undergoing the severest tests
in history.
There is merit, I think, in a strict construction of the words
``good behav
[[Page 2001]]
ior'' as including conduct which complies with judicial ethics
while on the bench and with the criminal and civil laws while off
the bench. Any other construction of the term would make judges
vulnerable to any majority group in the Congress which held a
common view of impropriety of conduct which was admittedly lawful.
If lawful conduct can nevertheless be deemed an impeachable offense
by a majority of the House, how can any Judge feel free to express
opinions on controversial subjects off the bench? Is there anything
in our history to indicate that the framers of our Constitution
intended to preclude a judge from stating political views publicly,
either orally or in writing? I have been unable to find any
constitutional history to so indicate.
The gentleman from New Hampshire (Mr. Wyman) suggests that a
judge should not publicly declare his personal views on
controversies likely to come before the Court. This is certainly
true. But it certainly does not preclude a judge from voicing
personal political views, since political issues are not within the
jurisdiction of the court and thus a judge's opinions on political
matters would generally not be prejudicial to interpretations of
the law which his jurisdiction is properly limited.
Sec. 3.11 The view has been taken that a federal judge may be impeached
for misbehavior of such nature as to cast substantial doubt upon
his integrity.
On Aug. 10, 1970, Minority Leader Gerald R. Ford, of Michigan,
inserted in the Congressional Record a legal memorandum on impeachment
of a federal judge for ``misbehavior,'' the memorandum was prepared by
a private attorney and reviewed constitutional provisions, views of
commentators, and the precedents of the House and Senate in impeachment
proceedings. The memorandum concluded with the following analysis:
(3)
---------------------------------------------------------------------------
3. 116 Cong. Rec. 28091-96, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
A review of the past impeachment proceedings has clearly
established little constitutional basis to the argument that an
impeachable offense must be indictable as well. If this were to be
the case, the Constitution would then merely provide an additional
or alternate method of punishment, in specific instances, to the
traditional criminal law violator. If the framers had meant to
remove from office only those officials who violated the criminal
law, a much simpler method than impeachment could have been
devised. Since impeachment is such a complex and cumbersome
procedure, it must have been directed at conduct which would be
outside the purview of the criminal law. Moreover, the
traditionally accepted purpose of impeachment would seem to work
against such a construction. By restricting the punishment for
impeachment to removal and disqualification from office,
impeachment seems to be a protective, rather than a punitive,
device. It is meant to protect the public from conduct by high
[[Page 2002]]
public officials that undermines public confidence. Since that is
the case, the nature of impeachment must be broader than this
argument would make it. [Such] conduct on the part of a judge,
while not criminal, would be detrimental to the public welfare.
Therefore it seems clear that impeachment will lie for conduct not
indictable nor even criminal in nature. It will be remembered that
Judge Archbald was removed from office for conduct which, in at
least one commentator's view, would have been blameless if done by
a private citizen. See Brown, The Impeachment of the Federal
Judiciary, 26 Har. L. Rev. 684, 704-05 (1913).
A sound approach to the Constitutional provisions relating to
the impeachment power appears to be that which was made during the
impeachment of Judge Archbald. Article I, Sections 2 and 3 give
Congress jurisdiction to try impeachments. Article II, Section 4,
is a mandatory provision which requires removal of officials
convicted of ``treason, bribery or other high crimes and
misdemeanors''. The latter phrase is meant to include conduct,
which, while not indictable by the criminal law, has at least the
characteristics of a crime. However, this provision is not
conclusively restrictive. Congress may look elsewhere in the
Constitution to determine if an impeachable offense has occurred.
In the case of judges, such additional grounds of impeachment may
be found in Article III, Section 1 where the judicial tenure is
fixed at ``good behavior''. Since good behavior is the limit of the
judicial tenure, some method of removal must be available where a
judge breaches that condition of his office. That method is
impeachment. Even though this construction has been criticized by
one writer as being logically fallacious, See Simpson, Federal
Impeachments, 64 U. of Penn. L. Rev. 651, 806-08 (1916), it seems
to be the construction adopted by the Senate in the Archbald and
Ritter cases. Even Simpson, who criticized the approach, reaches
the same result because he argues that ``misdemeanor'' must, by
definition, include misbehavior in office. Supra at 812-13.
In determining what constitutes impeachable judicial
misbehavior, recourse must be had to the previous impeachment
proceedings. Those proceedings fall mainly into two categories,
misconduct in the actual administration of justice and financial
improprieties off the bench. Pickering was charged with holding
court while intoxicated and with mishandling cases. Chase and Peck
were charged with misconduct which was prejudicial to the impartial
administration of justice and with oppressive and corrupt use of
their office to punish individuals critical of their actions.
Swayne, Archbald, Louderback and Ritter were all accused of using
their office for personal profit and with various types of
financial indiscretions. English was impeached both for oppressive
misconduct while on the bench and for financial misdealings. The
impeachment of Humphries is the only one which does not fall within
this pattern and the charges brought against him probably amounted
to treason. See Brown, The Impeachment of the Federal Judiciary, 26
Har. L. Rev. 684, 704 (1913).
While various definitions of impeachable misbehavior have been
advanced, the unifying factor in these definitions is the notion
that there must be such
[[Page 2003]]
misconduct as to cast doubt on the integrity and impartiality of
the Federal judiciary. Brown has defined that misbehavior as
follows:
It must act directly or by reflected influence react upon
the welfare of the State. It may constitute an intentional
violation of positive law, or it may be an official dereliction
of commission or omission, a serious breach of moral
obligation, or other gross impropriety of personal conduct
which, in its natural consequences, tends to bring an office
into contempt and disrepute . . . An act or 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. Brown, supra at 692-93.
As Simpson stated with respect to the outcome of the Archbald
impeachment:
It determined that a judge ought not only be impartial, but
he ought so demean himself, both in and out of court, that
litigants will have no reason to suspect his impartiality and
that repeatedly failing in that respect constitutes a ``high
misdemeanor'' in regard to his office. If such be considered
the result of that case, everyone must agree that it
established a much needed precedent. Simpson, Federal
Impeachments, 64 U. of Penn. L. Rev. 651, 813 (1916).
John W. Davis, House Manager in the Impeachment of Judge
Archbald, defined judicial misbehavior as follows:
Usurpation of power, the entering and enforcement of orders
beyond his jurisdiction, disregard or disobedience of the
rulings of superior tribunals, unblushing and notorious
partiality and favoritism, indolence and neglect, are all
violations of his official oath . . . And it is easily possible
to go further and imagine . . . such willingness to use his
office to serve his personal ends as to be within reach of no
branch of the criminal law, yet calculated with absolute
certainty to bring the court into public obloquy and contempt
and to seriously affect the administration of justice. 6 Cannon
647.
Representative Summers, one of the managers in the Louderback
impeachment gave this definition:
When the facts proven with reference to a respondent are
such as are reasonably calculated to arouse a substantial doubt
in the minds of the people over whom that respondent exercises
authority that he is not brave, candid, honest, and true, there
is no other alternative than to remove such a judge from the
bench, because wherever doubt resides, confidence cannot be
present. Louderback Proceedings 815.
IV. Conclusion
In conclusion, the history of the constitutional provisions
relating to the impeachment of Federal judges demonstrates that
only the Congress has the power and duty to remove from office any
judge whose proven conduct, either in the administration of justice
or in his personal behavior, casts doubt on his personal integrity
and thereby on the integrity of the entire judiciary. Federal
judges must maintain the highest standards of conduct to preserve
the independence of and respect for the judicial system and the
rule of law. As Representative Summers stated during the Ritter
impeachment:
Where a judge on the bench, by his own conduct, arouses a
substantial doubt as to his judicial integrity he commits the
highest crime that a judge can commit under the Con
[[Page 2004]]
stitution. Ritter Proceedings 611 (1936).
Finally, the application of the principles of the impeachment
process is left solely to the Congress. There is no appeal from
Congress' ultimate judgment. Thus, it can fairly be said that it is
the conscience of Congress--acting in accordance with the
constitutional limitations--which determines whether conduct of a
judge constitutes misbehavior requiring impeachment and removal
from office. If a judge's misbehavior is so grave as to cast
substantial doubt upon his integrity, he must be removed from
office regardless of all other considerations. If a judge has not
abused his trust, Congress has the duty to reaffirm public trust
and confidence in his actions.
Respectfully submitted,
Bethel B. Kelley,
Daniel G. Wyllie.
Sec. 3.12 The view has been taken that the House impeaches federal
judges only for misconduct that is both criminal in nature and
related to the performance of the judicial function.
On Nov. 16, 1970, Mr. Frank Thompson, Jr., of New Jersey, inserted
into the Congressional Record a study by a professor of constitutional
law of impeachment proceedings against federal judges and the grounds
for such proceedings. The memorandum discussed in detail the substance
of such charges in all prior impeachment proceedings and concluded as
follows: (4)
---------------------------------------------------------------------------
4. 116 Cong. Rec. 37464-70, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
In summary, the charges against Justice William O. Douglas are
unique in our history of impeachment. The House has stood ready to
impeach judges for Treason, Bribery, and related financial crimes
and misdemeanors. It has refused to impeach judges charged with on-
the-job misconduct when that behavior is not also an indictable
criminal offense. Only once before has a judge even been charged
with impeachment for non-job-related activities--in 1921, when
Judge Kenesaw Mountain Landis was charged with accepting the job as
Commissioner of big-league baseball--and the House Judiciary
Committee refused to dignify the charge with a report pro or con.
Never in our impeachment history, until Congressman Ford leveled
his charges against Mr. Justice Douglas, has it ever been suggested
that a judge could be impeached because, while off the bench, he
exercised his First Amendment rights to speak and write on issues
of the day, to associate with others in educational enterprises. .
. .
This brief history of Congressional impeachment shows several
things. First, it shows that it works. It is not a rusty, unused
power. Since 1796, fifty-five judges have been charged on the Floor
of the House of Representatives, approximately one in every three
to four years. Presumably, most of the federal judges who should be
impeached, are impeached. Thirty-three judges have been charged
with ``Trea
[[Page 2005]]
son, Bribery, or other High Crimes and Misdemeanors.'' Three of
them have been found guilty by the Senate and removed from office;
twenty-two additional judges have resigned rather than face Senate
trial and public exposure. This is one ``corrupt'' judge for
approximately every seven years--hopefully, all there are.
Second, by its deeds and actions, Congress has recognized what
Chief Justice Burger recently described as ``the imperative need
for total and absolute independence of judges in deciding cases or
in any phase of the decisional function.'' With a few aberrations
in the early 1800's, a period of unprecedented political upheaval,
Congress has refused to impeach a judge for lack of ``good
behaviour'' unless the behavior is both job-related and criminal.
This is true whether the judge gets drunk on the bench, whether the
judge exploits and abuses the authority of his robes, or whether
the judge hands down unpopular or wrong decisions.
How could it be otherwise? The purpose of an ``independent
judiciary'' in our system of government by separation of powers, is
to check the excesses of the legislative and executive branches of
the government, to cry a halt when popular passions grip the
Congress and laws are adopted which abridge and infringe upon the
rights guaranteed to all citizens by the Constitution. The judges
must be strong and secure if they are to do this job well.
John Dickinson proposed at the Constitutional Convention that
federal judges should be removed upon a petition by the majority of
each House of Congress. This was rejected, because it was
contradictory to judicial tenure during good behavior, because it
would make the judiciary ``dangerously dependent'' on the
legislature.
During the Jeffersonian purge of the federal bench, Senate
leader William Giles proclaimed that ``removal by impeachment'' is
nothing more than a declaration by both Houses of Congress to the
judge that ``you hold dangerous opinions.'' This theory of the
impeachment power was rejected in 1804 because it would put in
peril ``the integrity of the whole national judicial
establishment.''
Now Congressman Ford suggests that ``an impeachable offense''
is nothing more than ``whatever a majority of the House of
Representatives considers it to be at a given moment in history.''
Does he really mean that Chief Justice Warren might have been
impeached because ``at a given moment in history'' a majority of
the House and two-thirds of the Senate objected strongly to his
opinion ordering an end to school-segregation, or to his equally
controversial decision against school prayer? Does he really mean
that Judge Julius Hoffman is impeachable if a majority of this or
the next Congress decides that he was wrong in his handling of the
Chicago Seven? Does he really want a situation where federal judges
must keep one eye on the mood of Congress and the other on the
proceedings before them in court, in order to maintain their tenure
in office?
If Congressman Ford is right, it bodes ill for the concept of
an independent judiciary and the corollary doctrine of a
Constitutional government of laws.
[[Page 2006]]
In 1835, the French observer de Tocqueville wrote that:
A decline of public morals in the United States will
probably be marked by the abuse of the power of impeachment as
a means of crushing political adversaries or ejecting them from
office.
Let us hope that that day has not yet arrived.
Mr. Thompson summarized the study as follows:
. . . [I] requested Daniel H. Pollitt, a professor of
constitutional law at the University of North Carolina to survey
the 51 impeachment proceedings in this House during the intervening
years.
I want to make several comments on this survey.
First, it shows that impeachment works. Thirty-three judges
have been charged in this body with ``treason, bribery, or other
high crimes and misdemeanors.'' Twenty-two of them resigned rather
than face Senate trial; three chose to fight it out in the Senate;
and seven were acquitted by the vote of this Chamber against
further impeachment proceedings.
Second, it shows that never since the earliest days of this
Republic has the House impeached a judge for conduct which was not
both job-related and criminal. This body has consistently refused
to impeach a judge unless he was guilty of an indictable offense.
Third, it shows that never before Mr. Ford leveled his charges
against Justice Douglas has it ever been suggested that a judge
could be impeached because, while off the bench, he exercised his
first amendment rights to speak and write on issues of the day.
Sec. 3.13 A special subcommittee of the Committee on the Judiciary
found in its final report on charges of impeachment against
Associate Justice William O. Douglas of the Supreme Court, that (1)
a judge could be impeached for judicial conduct which was criminal
or which was a serious dereliction of public duty; (2) that a judge
could be impeached for nonjudicial conduct which was criminal; and
(3) that the evidence gathered did not warrant the impeachment of
Justice Douglas.
On Sept. 17, 1970, the special subcommittee of the Committee on the
Judiciary, which had been created to investigate and report on charges
of impeachment against Associate Justice Douglas of the Supreme Court,
submitted its final report to the full committee. The report reviewed
the grounds for impeachment and found the evidence insufficient. The
report provided in part: (5)
---------------------------------------------------------------------------
5. Final report by the special subcommittee on H. Res. 920
(Impeachment of Associate Justice Douglas) of the Committee on
the Judiciary, Committee Print, 91st Cong. 2d Sess., Sept. 17,
1970.
---------------------------------------------------------------------------
II. Concepts of Impeachment
The Constitution grants and defines the authority for the use
of impeach
[[Page 2007]]
ment procedures to remove officials of the Federal Government.
Offenses subject to impeachment are set forth in Article II,
Section 4:
The 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.
An Associate Justice of the Supreme Court is a civil officer of
the United States and is a person subject to impeachment. Article
II, Section 2, authorizes the President to appoint ``. . .
Ambassadors, other public Ministers and Consuls, Judges of the
Supreme Court, and all other Officers of the United States . . .''
Procedures established in the Constitution vest responsibility
for impeachment in the Legislative Branch of the government and
require both the House of Representatives and the Senate to
participate in the trial and determination of removal from office.
Article I, Section 1, provides: ``The House of Representatives
shall chuse their Speaker and other Officers; and shall have the
sole Power of Impeachment.''
After the House of Representatives votes to approve Articles of
Impeachment, the Senate must hear and decide the issue. Article I,
Section 3 provides:
The Senate shall have the sole Power to try all
Impeachments. When sitting for that Purpose, they shall be on
Oath or Affirmation. When the President of the United States is
tried, the Chief Justice shall preside: And no Person shall be
convicted without the Concurrence of two thirds of the Members
present.
Decision for removal in an impeachment proceeding does not preclude
trial and punishment for the same offense in a court of law.
Article III, Section 3 in this regard provides:
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: but the Party convicted shall nevertheless be liable
and subject to Indictment, Trial, Judgment and Punishment,
according to Law.
Other provisions of the Constitution underscore the exceptional
nature of the unique legislative trial. The President's power to
grant reprieves and pardons for offenses against the United States
does not extend to impeachments. Article 2, Section 2, provides:
``The President . . . shall have the power to grant Reprieves and
Pardons for Offenses against the United States, except in Cases of
Impeachment.'' Inasmuch as the Senate itself hears the evidence and
tries the case, the Constitutional right to a trial by jury when a
crime has been charged is not available. Article III, Section 2
provides: ``The Trial of all Crimes, except in Cases of
Impeachment, shall be by jury. . . .''
The Constitution provides only one instrument to remove judges
of both the Supreme and inferior courts, and that instrument is
impeachment. The provisions of Article II, Section 4, defines the
conduct that render federal officials subject to impeachment
procedures. For a judge to be impeachable, his conduct must
constitute ``. . . Treason, Bribery, or other High Crimes and
Misdemeanors.''
Some authorities on constitutional law have contended that the
impeach
[[Page 2008]]
ment device is a cumbersome procedure. Characterized by a high
degree of formality, when used it preempts valuable time in both
the House and Senate and obstructs accomplishment of the law making
function of the legislative branch. In addition to distracting the
attention of Congress from its other responsibilities, impeachments
invariably are divisive in nature and generate intense controversy
in Congress and in the country at large.
Since the adoption of the Constitution in 1787, there have been
only 12 impeachment proceedings, nine of which have involved
Federal judges. There have been only four convictions, all Federal
judges.
The time devoted by the House and Senate to the impeachments
that resulted in the trials of the nine Federal judges varied
substantially. The impeachment of Robert Archbald in 1912 consumed
the shortest time. The Archbald case required three months to be
processed in the House, and six months in the Senate. The
impeachment of James H. Peck required the most time for trial of a
Federal judge. The House took three years and five months to
complete its action, and the Senate was occupied for nine months
with the trial. The most recent case, Halsted Ritter, in 1933,
received the attention of the House for two years and eight months,
and required one month and seven days for trial in the Senate.
Although the provisions of Article II, Section 4 define conduct
that is subject to impeachment, and Article I establishes the
impeachment procedure, impeachments of Federal judges have been
complicated by the tenure provision in Article III, Section 1.
Article III, Section 1, provides:
The judicial Power of the United States shall be vested in
one supreme Court, and in such inferior Courts as the Congress
may from time to time ordain and establish. The Judges, both of
the supreme and inferior Courts, shall hold their Offices
during good Behaviour, and shall, at stated Times, receive for
their Services, a Compensation, which shall not be diminished
during their Continuance in Office
The content of the phrase ``during good Behaviour'' and its
relationship to Article II, Section 4's requirement for conduct
that amounts to ``treason, bribery, or other high crimes and
misdemeanors'' have been matters of dispute in each of the
impeachment proceedings that have involved Federal judges. The four
decided cases do not resolve the problems and disputes that this
relationship has generated. Differences in impeachment concepts as
to the meaning of the phrase ``good behavior'' in Article III and
its relationship to the meaning of the word ``misdemeanors'' in
Article II are apparent in the discussions of the charges that have
been made against Associate Justice Douglas.
A primary concern of the Founding Fathers was to assure the
creation of an independent judiciary. Alexander Hamilton in The
Federalist Papers (No. 78) stated this objective:
The complete independence of the courts of justice is
peculiarly essential in a limited Constitution. By a limited
Constitution, I understand one which contains certain specified
exceptions to the legislative authority; such for instance, as
that it shall pass no bills of attainder, no ex post facto
laws, and the like. Limitations of this kind can be preserved
in practice no other way than through the
[[Page 2009]]
medium of courts of justice, whose duty it must be to declare
all acts contrary to the manifest tenor of the Constitution
void. Without this, all the reservations of particular rights
or privileges would amount to nothing.
The Federalist Papers (No. 79) discusses the relationship of
the impeachment procedures to judicial independence:
The precautions for their responsibility are comprised in
the article respecting impeachments. They are liable to be
impeached for malconduct by the House of Representatives and
tried by the Senate; and, if convicted, may be dismissed from
office and disqualified for holding any other. 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 own Constitution in respect to our own
judges.
The want of a provision for removing the judges on account
of inability has been a subject of complaint. But all
considerate men will be sensible that such a provision would
either not be practiced upon or would be more liable to abuse
than calculated to answer any good purpose. The mensuration of
the faculties of the mind has, I believe, no place in the
catalog of known arts. An attempt to fix the boundary between
the regions of ability and inability would much oftener give
scope to personal and party attachments and enmities than
advance the interests of justice or the public good. The
result, except in the case of insanity, must for the most part
be arbitrary; and insanity, without any formal or express
provision, may be safely pronounced to be a virtual
disqualification.
The desire of the American people to assure independence of the
judiciary and to emphasize the exalted station assigned to the
judge by our society, have erected pervasive constitutional and
statutory safeguards. The judge of a United States court holds
office ``during good behavior.'' Further his salary may not be
reduced while he is in office by any branch of Government. A judge
may be removed from office only by the cumbersome procedure of
impeachment.
Accordingly, when the public is confronted with allegations of
dishonesty or venality, and is forced to recognize that judges are
human, and hence fallible, the impact is severe. Exposure of
infirmities in the judicial system is undertaken only with
reluctance. It is an area in which the bar, the judiciary, and the
executive and legislative branches alike have seen fit to move
cautiously and painstakingly. There must be full recognition of the
necessity to proceed in such a manner that will result in the least
damage possible to judicial independence, but which, at the same
time, will result in correction or elimination of any condition
that brings discredit to the judicial system.
Removal of a Federal judge, for whatever reason, historically
has been difficult. Constitutional safeguards to assure a free and
independent judiciary make it difficult to remove a Federal judge
who may be unfit, whether through incompetence, insanity, senility,
alcoholism, or corruption.
For a judge to be impeached, it must be shown that he has
committed treason, accepted a bribe, or has committed a high crime
or misdemeanor. All conduct that can be impeached must at least be
a ``misdemeanor.'' A judge is entitled to remain a judge as long as
he holds his office ``during good behav
[[Page 2010]]
ior.'' The content of the word ``misdemeanor'' must encompass some
activities which fall below the standard of ``good behavior.''
Conduct which fails to meet the standard of ``good behavior'' but
which does not come within the definition of ``misdemeanor'' is not
subject to impeachment.
In each of the nine impeachments involving judges, there has
been controversy as to the meaning of the word ``misdemeanor.''
Primarily the controversy concerned whether the activities being
attacked must be criminal or whether the word ``misdemeanor''
encompasses less serious departures from society norms.
In his memorandum ``Opinion on the Impeachment of Halsted L.
Ritter,'' Senator H. W. Johnson described the confusion of thought
prevailing in the Senate on these concepts. He stated:
The confusion of thought prevailing among Senators is
evidenced by their varying expressions. One group eloquently
argued any gift to a judge, under any circumstances,
constituted misbehavior, for which he should be removed from
office--and moreover that neither corrupt motive or evil intent
need be shown in the acceptance of a gift or in any so-called
misbehavior. Another prefaced his opinion with the statement:
``I do not take the view that an impeachment proceeding of a
judge of the inferior Federal courts under the Constitution of
the United States is a criminal proceeding. The Constitution
itself has expressly denuded impeachment proceedings of every
aspect or characteristic of a criminal proceeding.''
And yet another flatly takes a contrary view, and states
although finding the defendant guilty on the seventh count:
``The procedure is criminal in its nature, for upon conviction,
requires the removal of a judge, which is the highest
punishment that could be administered such an officer. The
Senate, sitting as a court, is required to conduct its
proceedings and reach its decisions in accordance with the
customs of our law. In all criminal cases the defendant comes
into court enjoying the presumption of innocence, which
presumption continues until he is proven guilty beyond a
reasonable doubt.''
And again we find this: ``Impeachment, though, must be
considered as a criminal proceeding.''
In his April 15, 1970, speech, Representative Ford articulated
the concept that an impeachable offense need not be indictable and
may be something less than a criminal act or criminal dereliction
of duty. He said:
What, then, is an impeachable offense?
The only honest answer is that an impeachable offense is
whatever a majority of the House of Representatives considers
to be at a given moment in history; conviction results from
whatever offense or offenses two-thirds of the other body
considers to be sufficiently serious to require removal of the
accused from office. Again, the historical context and
political climate are important; there are few fixed principles
among the handful of precedents.
I think it is fair to come to one conclusion, however, from
our history of impeachments: a higher standard is expected of
Federal judges than of any other ``civil officers'' of the
United States. (First Report, p. 31).
The ``Kelley Memorandum'' submitted by Mr. Ford enforces this
position. The Kelley Memorandum asserts that misbehavior by a
Federal judge may constitute an impeachable offense
[[Page 2011]]
though the conduct may not be an indictable crime or misdemeanor.
The Kelley Memorandum concludes:
In conclusion, the history of the constitutional provisions
relating to the impeachment of Federal judges demonstrates that
only the Congress has the power and duty to remove from office
any judge whose proven conduct, either in the administration of
justice or in his personal behavior, casts doubt on his
personal integrity and thereby on the integrity of the entire
judiciary. Federal judges must maintain the highest standards
of conduct to preserve the independence of and respect for the
judicial system and the rule of law.
On the other hand, Counsel for Associate Justice Douglas, Simon
H. Rifkind, has submitted a memorandum that contends that a Federal
judge may not be impeached for anything short of criminal conduct.
Mr. Rifkind also contends that the other provisions of the
Constitution, i.e., the prohibition of ex post facto laws, due
process notice requirement and the protection of the First
Amendment prevent the employment of any other standard in
impeachment proceedings. In conclusion Mr. Rifkind stated:
The constitutional language, in plain terms, confines
impeachment to ``Treason, Bribery, or other high Crimes and
Misdemeanors.'' The history of those provisions reinforces
their plain meaning. Even when the Jeffersonians sought to
purge the federal bench of all Federalist judges, they felt
compelled to at least assert that their political victims were
guilty of ``high Crimes and Misdemeanors.'' The unsuccessful
attempt to remove Justice Chase firmly established the
proposition that impeachment is for criminal offenses only, and
is not a ``general inquest'' into the behavior of judges. There
has developed the consistent practice, rigorously followed in
every case in this century, of impeaching federal judges only
when criminal offenses have been charged. Indeed, the House has
never impeached a judge except with respect to a ``high Crime''
or ``Misdemeanor.'' Characteristically, the basis for
impeachment has been the soliciting of bribes, selling of
votes, manipulation of receivers' fees, misappropriation of
properties in receivership, and willful income tax evasion.
A vast body of literature has been developed concerning the
scope of the impeachment power as it pertains to federal judges.
The precedents show that the House of Representatives, particularly
in the arguments made by its Managers in the Senate trials, favors
the conclusion that the phrase ``high crimes and misdemeanors''
encompasses activity which is not necessarily criminal in nature.
Although there may be divergence of opinion as to whether
impeachment of a judge requires conduct that is criminal in nature
in that it is proscribed by specific statutory or common law
prohibition, all authorities hold that for a judge to be impeached,
the term ``misdemeanors'' requires a showing of misconduct which is
inherently serious in relation to social standards. No respectable
argument can be made to support the concept that a judge could be
impeached if his conduct did not amount at least to a serious
dereliction of his duty as a member of society.
The punishment imposed by the Constitution measures how serious
misconduct need be to be impeachable. Only serious derelictions of
duty owed to society would warrant the punish
[[Page 2012]]
ment provided. An impeachment proceeding is a trial which results
in punishment after an appropriate finding by the trier of facts,
the Senate. Deprivation of office is a punishment. Disqualification
to hold any future office of honor, trust and profit is a greater
punishment. The judgment of the Senate confers upon that body
discretion, in the words of the Federalist Papers ``. . . to doom
to honor or to infamy the most influential and the most
distinguished characters of the community. . . .
Reconciliation of the differences between the concept that a
judge has a right to his office during ``good behavior'' and the
concept that the legislature has a duty to remove him if his
conduct constitutes a ``misdemeanor'' is facilitated by
distinguishing conduct that occurs in connection with the exercise
of his judicial office from conduct that is non-judicially
connected. Such a distinction permits recognition that the content
of the word ``misdemeanor'' for conduct that occurs in the course
of exercise of the power of the judicial office includes a broader
spectrum of action than is the case when non-judicial activities
are involved.
When such a distinction is made, the two concepts on the
necessity for judicial conduct to be criminal in nature to be
subject to impeachment becomes defined and may be reconciled under
the overriding requirement that to be a ``misdemeanor'', and hence
impeachable, conduct must amount to a serious dereliction of an
obligation owed to society.
To facilitate exposition, the two concepts may be summarized as
follows:
Both concepts must satisfy the requirements of Article II,
Section 4, that the challenged activity must constitute ``. . .
Treason, Bribery or High Crimes and Misdemeanors.''
Both concepts would allow a judge to be impeached for acts
which occur in the exercise of judicial office that (1) involve
criminal conduct in violation of law, or (2) that involve serious
dereliction from public duty, but not necessarily in violation of
positive statutory law or forbidden by the common law. Sloth,
drunkenness on the bench or unwarranted and unreasonable
impartiality manifest for a prolonged period are examples of
misconduct, not necessarily criminal in nature that would support
impeachment. When such misbehavior occurs in connection with the
federal office, actual criminal conduct should not be a requisite
to impeachment of a judge or any other federal official. While such
conduct need not be criminal, it nonetheless must be sufficiently
serious to be offenses against good morals and injurious to the
social body.
Both concepts would allow a judge to be impeached for conduct
not connected with the duties and responsibilities of the judicial
office which involve criminal acts in violation of law.
The two concepts differ only with respect to impeachability of
judicial behavior not connected with the duties and
responsibilities of the judicial office. Concept 2 would define
``misdemeanor'' to permit impeachment for serious derelictions of
public duty but not necessarily violations of statutory or common
law.
In summary, an outline of the two concepts would look this way:
A judge may be impeached for ``. . . Treason, Bribery, or High
Crimes or Misdemeanors.''
[[Page 2013]]
A. Behavior, connected with judicial office or exercise of
judicial power.
Concept I
1. Criminal conduct.
2. Serious dereliction from public duty.
Concept II
1. Criminal conduct.
2. Serious dereliction from public duty.
B. Behavior not connected with the duties and responsibilities
of the judicial office.
Concept I
1. Criminal conduct.
Concept II
1. Criminal conduct.
2. Serious dereliction from public duty.
Chapter III, Disposition of Charges sets forth the Special
Subcommittee's analysis of the charges that involve activities of
Associate Justice William O. Douglas. Under this analysis it is not
necessary for the members of the Judiciary Committee to choose
between Concept I and II.
The theories embodied in Concept I have been articulated by
Representative Paul N. McCloskey, Jr. In his speech to the House on
April 21, 1970, Mr. McCloskey stated:
The term ``good behavior,'' as the Founding Fathers
considered it, must be taken together with the specific
provisions limiting cause for impeachment of executive branch
personnel to treason, bribery or other high crimes and
misdemeanors. The higher standard of good behavior required of
judges might well be considered as applicable solely to their
judicial performance and capacity and not to their private and
nonjudicial conduct unless the same is violative of the law.
Alcoholism, arrogance, nonjudicial temperament, and senility of
course interfere with judicial performance and properly justify
impeachment. I can find no precedent, however, for impeachment
of a Judge for nonjudicial conduct which falls short of
violation of law.
In looking to the nine cases of impeachment of Judges
spanning 181 years of our national history, in every case
involved, the impeachment was based on either improper judicial
conduct or non-judicial conduct which was considered as
criminal in nature. Cong. Rec. 91st Cong., 2nd Sess., H 3327.
In his August 18, 1970, letter to the Special Subcommittee
embodying his comments on the ``Kelley Memorandum'', Mr. McCloskey
reaffirmed this concept. He stated:
Conduct of a Judge, while it may be less than criminal in
nature to constitute ``less than good behavior'', has never
resulted in a successful impeachment unless the judge was
acting in his judicial capacity or misusing his judicial power.
In other words the precedents suggest that misconduct must
either be ``judicial misconduct'' or conduct which constitutes
a crime. There is no basis for impeachment on charges of non-
judicial misconduct which occurs off the bench and does not
constitute a crime. . . .
IV. Recommendations of Special Subcommittee to Judiciary Committee
1. It is not necessary for the members of the Judiciary
Committee to take a position on either of the concepts of
impeachment that are discussed in Chapter II.
2. Intensive investigation of the Special Subcommittee has not
disclosed creditable evidence that would warrant
[[Page 2014]]
preparation of charges on any acceptable concept of an impeachable
offense.
Emanuel Celler,
Byron G. Rogers,
Jack Brooks.
The minority views of Mr. Edward Hutchinson, of Michigan, a member
of the special subcommittee, concluded as follows on the ``concepts of
impeachment'':
The report contains a chapter on the Concepts of Impeachment.
At the same time, it takes the position that it is unnecessary to
choose among the concepts mentioned because it finds no impeachable
offense under any. It is evident, therefore, that while a
discussion of the theory of impeachment is interesting, it is
unnecessary to a resolution of the case as the Subcommittee views
it. This chapter on Concepts is nothing more than dicta under the
circumstances. Certainly the Subcommittee should not even
indirectly narrow the power of the House to impeach through a
recitation of two or three theories and a very apparent choice of
one over the others, while at the same time asserting that no
choice is necessary. The Subcommittee's report adopts the view that
a Federal judge cannot be impeached unless he is found to have
committed a crime, or a serious indiscretion in his judicially
connected activities. Although it is purely dicta, inclusion of
this chapter in the report may be mischievous since it might
unjustifiably restrict the scope of further investigation.
Following the submission of the report, further proceedings against
Justice Douglas were discontinued.(8)
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6. See Sec. 14.16 infra.
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Offenses Committed Prior to Term of Office
Sec. 3.14 The Speaker and the House declined to take any action on a
request by the Vice President for an investigation into possible
impeachable offenses against him, where the offenses were not
related to his term of office as Vice President and where the
charges were pending before the courts.
On Sept. 25, 1973,(7) Speaker Carl Albert, of Oklahoma,
laid before the House a communication from Vice President Spiro T.
Agnew requesting that the House investigate offenses charged to the
Vice President in an investigation being conducted by a U.S. Attorney.
The alleged offenses related to the Vice President's conduct before he
became a civil officer under the United States. No action was taken on
the request.
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7. 119 Cong. Rec. 31368, 93d Cong. 1st Sess.
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Parliamentarian's Note: The Vice President cited in his letter a
request made by Vice President John C. Calhoun in 1826 (discussed at 3
Hinds' Precedents Sec. 1736). On that occasion, the alleged charges
related to the Vice President's prior service as Secretary of War. The
communication
[[Page 2015]]
was referred on motion to a select committee which investigated the
charges and subsequently reported to the House that no impropriety had
been found in the Vice President's former conduct as a civil officer
under the United States. The report of the select committee was ordered
to lie on the table and the House took no further action thereon. The
Vice President's letter did not cite the Committee on the Judiciary's
recommendation to the House (discussed in 3 Hinds' Precedents
Sec. 2510) that conduct of Vice President Colfax allegedly occurring
prior to his term as Vice President was not grounds for impeachment,
since not ``an act done or omitted while the officer was in office.''
(See Sec. 5.14, infra).